G.R. No.

181613

November 25, 2009

ROSALINDA
A.
PENERA, Petitioner,
vs.
COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents.
RESOLUTION
CARPIO, J.:
We grant Rosalinda A. Peneras (Penera) motion for reconsideration of this
Courts Decision of 11 September 2009 (Decision).
The assailed Decision dismissed Peneras petition and affirmed the
Resolution dated 30 July 2008 of the COMELEC En Banc as well as the
Resolution dated 24 July 2007 of the COMELEC Second Division. The
Decision disqualified Penera from running for the office of Mayor in Sta.
Monica, Surigao del Norte and declared that the Vice-Mayor should
succeed Penera.
In support of her motion for reconsideration, Penera submits the following
arguments:
1. Penera was not yet a candidate at the time of the incident under
Section 11 of RA 8436 as amended by Section 13 of RA 9369.
2. The petition for disqualification failed to submit convincing and
substantial evidence against Penera for violation of Section 80 of
the Omnibus Election Code.
3. Penera never admitted the allegations of the petition for
disqualification and has consistently disputed the charge of
premature campaigning.
4. The admission that Penera participated in a motorcade is not the
same as admitting she engaged in premature election
campaigning.
Section 79(a) of the Omnibus Election Code defines a "candidate" as "any
person aspiring for or seeking an elective public office, who has filed a
certificate of candidacy x x x." The second sentence, third paragraph,
Section 15 of RA 8436, as amended by Section 13 of RA 9369, provides
that "[a]ny person who files his certificate of candidacy within [the period

for filing] shall only be considered as a candidate at the start of the

campaign period for which he filed his certificate of candidacy." The
immediately succeeding proviso in the same third paragraph states that
"unlawful acts or omissions applicable to a candidate shall take effect only
upon the start of the aforesaid campaign period." These two provisions
determine the resolution of this case.
The Decision states that "[w]hen the campaign period starts and [the
person who filed his certificate of candidacy] proceeds with his/her
candidacy, his/her intent turning into actuality, we can already consider
his/her acts, after the filing of his/her COC and prior to the campaign
period, as the promotion of his/her election as a candidate, hence,
constituting premature campaigning, for which he/she may be
disqualified."1
Under the Decision, a candidate may already be liable for premature
campaigning after the filing of the certificate of candidacy but even before
the start of the campaign period. From the filing of the certificate of
candidacy, even long before the start of the campaign period, the Decision
considers the partisan political acts of a person so filing a certificate of
candidacy "as the promotion of his/her election as a candidate." Thus, such
person can be disqualified for premature campaigning for acts done before
the start of the campaign period. In short, the Decision considers a person
who files a certificate of candidacy already a "candidate" even before the
start of the campaign period. lawphil
The assailed Decision is contrary to the clear intent and letter of the law.
The Decision reverses Lanot v. COMELEC, 2 which held that a person who
files a certificate of candidacy is not a candidate until the start of
the campaign period. In Lanot, this Court explained:
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.

Inspectors shall affix his/her signature to authenticate the official ballot

shall be provided.

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.

Both sides of the ballots may be used when necessary.

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

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.

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:

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.

SENATOR GONZALES. Okay. Then, how about the campaign period, would it
be the same[,] uniform for local and national officials?

THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the

other prohibition.

THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it

at the present periods.

THE CHAIRMAN (REP. TANJUATCO). Thats right.

THE ACTING CHAIRMAN (SEN. FERNAN). Okay.

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). 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.
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."3 (Emphasis in the original)
Lanot was decided on the ground that one who files a certificate of
candidacy is not a candidate until the start of the campaign period. This
ground was based on the deliberations of the legislators who explained the
intent of the provisions of RA 8436, which laid the legal framework for an
automated election system. There was no express provision in the original
RA 8436 stating that one who files a certificate of candidacy is not a
candidate until the start of the campaign period.
When Congress amended RA 8436, Congress decided to expressly
incorporate the Lanot doctrine into law, realizing that Lanot merely relied
on the deliberations of Congress in holding that

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." 4 (Emphasis
supplied)
Congress wanted to insure that no person filing a certificate of candidacy
under the early deadline required by the automated election system would
be disqualified or penalized for any partisan political act done before the
start of the campaign period. Thus, in enacting RA 9369, Congress
expressly wrote the Lanot doctrine into the second sentence, third
paragraph of the amended Section 15 of RA 8436, thus:
xxx
For this purpose, the Commission shall set the deadline for the filing of
certificate of candidacy/petition for registration/manifestation to participate
in the election. Any person who files his certificate of candidacy within this
period shall only be considered as a candidate at the start of the campaign
period for which he filed his certificate of candidacy: Provided, That,
unlawful acts or omissions applicable to a candidate shall take effect only
upon the start of the aforesaid campaign period: Provided, finally, That any
person holding a public appointive office or position, including active
members of the armed forces, and officers and employees in governmentowned or -controlled corporations, shall be considered ipso facto resigned
from his/her office and must vacate the same at the start of the day of the
filing of his/her certificate of candidacy. (Boldfacing and underlining
supplied)
Congress elevated the Lanot doctrine into a statute by specifically inserting
it as the second sentence of the third paragraph of the amended Section
15 of RA 8436, which cannot be annulled by this Court except on the sole
ground of its unconstitutionality. The Decision cannot reverse Lanot without
repealing this second sentence, because to reverse Lanot would mean
repealing this second sentence.
The assailed Decision, however, in reversing Lanot does not claim that this
second sentence or any portion of Section 15 of RA 8436, as amended by
RA 9369, is unconstitutional. In fact, the Decision considers the entire
Section 15 good law. Thus, the Decision is self-contradictory reversing
Lanot but maintaining the constitutionality of the second sentence, which
embodies the Lanot doctrine. In so doing, the Decision is irreconcilably in
conflict with the clear intent and letter of the second sentence, third
paragraph, Section 15 of RA 8436, as amended by RA 9369.

In enacting RA 9369, Congress even further clarified the first proviso in the
third paragraph of Section 15 of RA 8436. The original provision in RA 8436
states
x x x 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.
In RA 9369, Congress inserted the word "only" so that the first proviso now
reads
x x x Provided, That, unlawful acts or omissions applicable to a candidate
shall take effect only upon the start of the aforesaid campaign period x x x.
(Emphasis supplied)
Thus, Congress not only reiterated but also strengthened its mandatory
directive that election offenses can be committed by a candidate "only"
upon the start of the campaign period. This clearly means that before the
start of the campaign period, such election offenses cannot be so
committed.
When the applicable provisions of RA 8436, as amended by RA 9369, are
read together, these provisions of law do not consider Penera a candidate
for purposes other than the printing of ballots, until the start of the
campaign period. There is absolutely no room for any other interpretation.
We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio:
x x x The definition of a "candidate" in Section 79(a) of the Omnibus
Election Code should be read together with the amended Section 15 of RA
8436. A "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."
However, it is no longer enough to merely file a certificate of candidacy for
a person to be considered a candidate because "any person who files his
certificate of candidacy within [the filing] period shall only be considered a
candidate at the start of the campaign period for which he filed his
certificate of candidacy." Any person may thus file a certificate of
candidacy on any day within the prescribed period for filing a certificate of
candidacy yet that person shall be considered a candidate, for purposes of
determining ones possible violations of election laws, only during the
campaign period. Indeed, there is no "election campaign" or "partisan
political activity" designed to promote the election or defeat of a particular

candidate or candidates to public office simply because there is no

"candidate" to speak of prior to the start of the campaign period.
Therefore, despite the filing of her certificate of candidacy, the law does
not consider Penera a candidate at the time of the questioned motorcade
which was conducted a day before the start of the campaign period. x x x
The campaign period for local officials began on 30 March 2007 and ended
on 12 May 2007. Penera filed her certificate of candidacy on 29 March
2007. Penera was thus a candidate on 29 March 2009 only for purposes of
printing the ballots. On 29 March 2007, the law still did not consider Penera
a candidate for purposes other than the printing of ballots. Acts committed
by Penera prior to 30 March 2007, the date when she became a
"candidate," even if constituting election campaigning or partisan political
activities, are not punishable under Section 80 of the Omnibus Election
Code. Such acts are within the realm of a citizens protected freedom of
expression. Acts committed by Penera within the campaign period are not
covered by Section 80 as Section 80 punishes only acts outside the
campaign period.5
The assailed Decision gives a specious reason in explaining away the first
proviso in the third paragraph, the amended Section 15 of RA 8436 that
election offenses applicable to candidates take effect only upon the start of
the campaign period. The Decision states that:
x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which
provides that "any unlawful act or omission applicable to a candidate shall
take effect only upon the start of the campaign period," does not mean
that the acts constituting premature campaigning can only be committed,
for which the offender may be disqualified, during the campaign period.
Contrary to the pronouncement in the dissent, nowhere in said proviso was
it stated that campaigning before the start of the campaign period is
lawful, such that the offender may freely carry out the same with impunity.
As previously established, a person, after filing his/her COC but prior to
his/her becoming a candidate (thus, prior to the start of the campaign
period), can already commit the acts described under Section 79(b) of the
Omnibus Election Code as election campaign or partisan political activity,
However, only after said person officially becomes a candidate, at the
beginning of the campaign period, can said acts be given effect as
premature campaigning under Section 80 of the Omnibus Election Code.
Only after said person officially becomes a candidate, at the start of the
campaign period, can his/her disqualification be sought for acts
constituting premature campaigning. Obviously, it is only at the start of the
campaign period, when the person officially becomes a candidate, that the

undue and iniquitous advantages of his/her prior acts, constituting

premature campaigning, shall accrue to his/her benefit. Compared to the
other candidates who are only about to begin their election campaign, a
candidate who had previously engaged in premature campaigning already
enjoys an unfair headstart in promoting his/her candidacy. 6 (Emphasis
supplied)
It is a basic principle of law that any act is lawful unless expressly declared
unlawful by law. This is specially true to expression or speech, which
Congress cannot outlaw except on very narrow grounds involving clear,
present and imminent danger to the State. The mere fact that the law does
not declare an act unlawful ipso facto means that the act is lawful. Thus,
there is no need for Congress to declare in Section 15 of RA 8436, as
amended by RA 9369, that political partisan activities before the start of
the campaign period are lawful. It is sufficient for Congress to state that
"any unlawful act or omission applicable to a candidate shall take effect
only upon the start of the campaign period." The only inescapable and
logical result is that the same acts, if done before the start of the campaign
period, are lawful.
In laymans language, this means that a candidate is liable for an election
offense only for acts done during the campaign period, not before. The law
is clear as daylight any election offense that may be committed by a
candidate under any election law cannot be committed before the start of
the campaign period. In ruling that Penera is liable for premature
campaigning for partisan political acts before the start of the campaigning,
the assailed Decision ignores the clear and express provision of the law.
The Decision rationalizes that a candidate who commits premature
campaigning can be disqualified or prosecuted only after the start of the
campaign period. This is not what the law says. What the law says is "any
unlawful act or omission applicable to a candidate shall take effect only
upon the start of the campaign period." The plain meaning of this provision
is that the effective date when partisan political acts become unlawful as
to a candidate is when the campaign period starts. Before the start of the
campaign period, the same partisan political acts are lawful.
The law does not state, as the assailed Decision asserts, that partisan
political acts done by a candidate before the campaign period are unlawful,
but may be prosecuted only upon the start of the campaign period. Neither
does the law state that partisan political acts done by a candidate before
the campaign period are temporarily lawful, but becomes unlawful upon
the start of the campaign period. This is clearly not the language of the
law. Besides, such a law as envisioned in the Decision, which defines a

criminal act and curtails freedom of expression and speech, would be void
for vagueness.
Congress has laid down the law a candidate is liable for election
offenses only upon the start of the campaign period. This Court has no
power to ignore the clear and express mandate of the law that "any person
who files his certificate of candidacy within [the filing] period shall only be
considered a candidate at the start of the campaign period for which he
filed his certificate of candidacy." Neither can this Court turn a blind eye to
the express and clear language of the law that "any unlawful act or
omission applicable to a candidate shall take effect only upon the start of
the campaign period."
The forum for examining the wisdom of the law, and enacting remedial
measures, is not this Court but the Legislature. This Court has no recourse
but to apply a law that is as clear, concise and express as the second
sentence, and its immediately succeeding proviso, as written in the third
paragraph of Section 15 of RA 8436, as amended by RA 9369.
WHEREFORE, we GRANT petitioner Rosalinda A. Peneras Motion for
Reconsideration. We SET ASIDE the Decision of this Court in G.R. No.
181613 promulgated on 11 September 2009, as well as the Resolutions
dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division
and the COMELEC En Banc, respectively, in SPA No. 07-224. Rosalinda A.
Penera shall continue as Mayor of Sta. Monica, Surigao del Norte.
SO ORDERED.

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 certiorari 1 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 2004 4 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 Banc 6and 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 Division 7 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 beGRANTED. Consequently,
pursuant to Section 68 (a) and (e) of the Omnibus Election Code,
respondentVICENTE 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
DIVISION) RESOLVED as it hereby RESOLVESto ORDER:

(FIRST

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 reconsideration 16 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 MAYORELECT, 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-in-intervention.

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.

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 7129 32 to justify the counting of
Eusebios votes and quoted from the Resolutions as follows:
Resolution No. 7128 -

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

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
Disqualification
Referral
Law Department

the
Case
to

Dismissal
and
the

of
of

the
the
COMELEC

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 ProprioActions 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.

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:

Sec. 3. Where to file petitions. The petitions shall be filed with the
following offices of the Commission:

2.a having given money or other material consideration to

influence, induce or corrupt the voters or public officials
performing electoral functions; or

xxx

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;

2.d having solicited, received or made any contribution

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

xxx

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.

PROVIDED, in cases of highly-urbanized cities the filing of petitions for

disqualification shall be with the Office of the Regional Election Directors. x
xx
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

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 forumshopping. 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.

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.

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.

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, VicePresident, 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.

SENATOR GONZALES. If thats a fact, the law cannot change a fact.

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.

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 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.

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.

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:
xxx
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
Disqualification

of

Eusebios

Possible

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.

G.R. No. 205728

January 21, 2015

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV.

BISHOP VICENTE M. NAVARRA and THE BISHOP HIMSELF IN HIS
PERSONAL
CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF
BACOLOD CITY, ATTY. MAVIL V. MAJARUCON, Respondents.
DECISION
LEONEN, J.:
"The Philippines is a democratic and republican State. Sovereignty resides
in the people and all government authority emanates from them." Article
II, Section 1, Constitution
All governmental authority emanates from our people. No unreasonable
restrictions of the fundamental and preferred right to expression of the
electorate during political contests no matter how seemingly benign will be
tolerated.
This case defines the extent that our people may shape the debates during
elections. It is significant and of first impression. We are asked to decide
whether the Commission on Elections (COMELEC) has the competence to
limit expressions made by the citizens who are not candidates during
elections.
Before us is a special civil action for certiorari and prohibition with
application for preliminary injunction and temporary restraining
order1 under Rule 65 of the Rules of Court seeking to nullify COMELECs
Notice to Remove Campaign Materials 2 dated February 22, 2013 and
letter3 issued on February 27, 2013.
The facts are not disputed.
On February 21, 2013, petitioners posted two (2) tarpaulins within a
private compound housing the San Sebastian Cathedral of Bacolod. Each
tarpaulin was approximately six feet (6') by ten feet (10') in size. They
were posted on the front walls of the cathedral within public view. The first
tarpaulin contains the message "IBASURA RH Law" referring to the
Reproductive Health Law of 2012 or Republic Act No. 10354. The second
tarpaulin is the subject of the present case. 4 This tarpaulin contains the
heading "Conscience Vote" and lists candidates as either "(Anti-RH) Team
Buhay" with a check mark, or "(Pro-RH) Team Patay" with an "X" mark. 5 The
electoral candidates were classified according to their vote on the adoption
of Republic Act No. 10354, otherwise known as the RH Law. 6Those who

voted for the passing of the law were classified by petitioners as

comprising "Team Patay," while those who voted against it form "Team
Buhay":7
TEAM BUHAY

TEAM PATAY

Estrada, JV

Angara, Juan Edgardo

Honasan, Gregorio

Casio, Teddy

Magsaysay, Mitos

Cayetano, Alan Peter

Pimentel, Koko

Enrile, Jackie

Trillanes, Antonio

Escudero, Francis

Villar, Cynthia

Hontiveros, Risa

Party List Buhay

Legarda, Loren

Party List Ang Pamilya

Party List Gabriela

Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis

During oral arguments, respondents conceded that the tarpaulin was

neither sponsored nor paid for by any candidate. Petitioners also conceded
that the tarpaulin contains names ofcandidates for the 2013 elections, but
not of politicians who helped in the passage of the RH Law but were not
candidates for that election.
On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity
as Election Officer of Bacolod City, issued a Notice to Remove Campaign
Materials8 addressed to petitioner Most Rev. Bishop Vicente M. Navarra.
The election officer ordered the tarpaulins removal within three (3) days
from receipt for being oversized. COMELEC Resolution No. 9615 provides
for the size requirement of two feet (2) by three feet (3). 9
On February 25, 2013, petitioners replied 10 requesting, among others, that
(1) petitioner Bishop be given a definite ruling by COMELEC Law
Department regarding the tarpaulin; and (2) pending this opinion and the
availment of legal remedies, the tarpaulin be allowed to remain. 11
On February 27, 2013, COMELEC Law Department issued a letter 12 ordering
the immediate removal of the tarpaulin; otherwise, it will be constrained to
file an election offense against petitioners. The letter of COMELEC Law
Department was silenton the remedies available to petitioners. The letter
provides as follows:

Dear Bishop Navarra:

It has reached this Office that our Election Officer for this City, Atty. Mavil
Majarucon, had already given you notice on February 22, 2013 as regards
the election propaganda material posted on the church vicinity promoting
for or against the candidates and party-list groups with the following
names and messages, particularly described as follows:

After due deliberation, this court, on March 5, 2013, issued a temporary

restraining order enjoining respondents from enforcing the assailed notice
and letter, and set oral arguments on March 19, 2013. 16

Material size : six feet (6) by ten feet (10)

Description : FULL COLOR TARPAULIN

On March 13, 2013, respondents filed their comment 17 arguing that (1) a
petition for certiorari and prohibition under Rule 65 of the Rules of Court
filed before this court is not the proper remedy to question the notice and
letter of respondents; and (2) the tarpaulin is an election propaganda
subject to regulation by COMELEC pursuant to its mandate under Article IXC, Section 4 of the Constitution. Hence, respondents claim that the
issuances ordering its removal for being oversized are valid and
constitutional.18

Image of : SEE ATTACHED PICTURES

Message : CONSCIENCE VOTE (ANTI RH) TEAM
BUHAY; (PRO RH) TEAM PATAY
Location
:
POSTED
ON
THE
OF THE DIOCESE OF BACOLOD CITY

(TRO) and/or a writ of preliminary injunction be issued restraining

respondents from further proceeding in enforcing their orders for the
removal of the Team Patay tarpaulin; and (3) after notice and hearing, a
decision be rendered declaring the questioned orders of respondents as
unconstitutional and void, and permanently restraining respondents from
enforcing them or any other similar order.15

CHURCH

VICINITY

The three (3) day notice expired on February 25, 2013.

Considering that the above-mentioned material is found to be in violation
of Comelec Resolution No. 9615 promulgated on January 15, 2013
particularly on the size (even with the subsequent division of the said
tarpaulin into two), as the lawful size for election propaganda material is
only two feet (2) by three feet (3), please order/cause the immediate
removal of said election propaganda material, otherwise, we shall be
constrained to file an election offense case against you.
We pray that the Catholic Church will be the first institution to help the
Commission on Elections inensuring the conduct of peaceful, orderly,
honest and credible elections.

During the hearing held on March 19, 2013, the parties were directed to
file their respective memoranda within 10 days or by April 1, 2013, taking
into consideration the intervening holidays.19
The issues, which also served as guide for the oral arguments, are: 20
I.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER
MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW
DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS
OF THE COMELEC WHICH WOULD WARRANT A REVIEW OF THIS COURT VIA
RULE 65 PETITION[;]
A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF
COURTS
DOCTRINE
AND
JURISPRUDENTIAL
RULES
GOVERNING APPEALS FROM COMELEC DECISIONS;

Thank you and God Bless!

[signed]
ATTY.
Director IV13

ESMERALDA

B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED

ORDERS ARE NOT CONSIDERED JUDGMENTS/FINAL
ORDERS/RESOLUTIONS OF THE COMELEC, WHETHER
THERE ARE EXCEPTIONAL CIRCUMSTANCES WHICH WOULD
ALLOW THIS COURT TO TAKE COGNIZANCE OF THE CASE[;]

AMORA-LADRA

Concerned about the imminent threatof prosecution for their exercise of

free speech, petitioners initiated this case through this petition for
certiorari and prohibition with application for preliminary injunction and
temporary restraining order.14 They question respondents notice dated
February 22, 2013 and letter issued on February 27, 2013. They pray that:
(1) the petition be given due course; (2) a temporary restraining order

II.

WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE

"POLITICAL ADVERTISEMENT" OR "ELECTION PROPAGANDA" CONSIDERING
THAT PETITIONER IS NOT A POLITICAL CANDIDATE[;]
III.
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED
SPEECH), OR ELECTION PROPAGANDA/POLITICAL ADVERTISEMENT[;]
A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A
FORM OF EXPRESSION, WHETHER THE COMELEC
POSSESSES THE AUTHORITY TO REGULATE THE SAME[;]
B. WHETHER
REGULATED[;]

THIS

FORM

OF

EXPRESSION

MAY

BE

IV.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER
MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW
DEPARTMENT VIOLATES THE PRINCIPLE OF SEPARATION OF CHURCH AND
STATE[;] [AND]
V.
WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN
VIOLATES THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH
AND STATE.
I
PROCEDURAL ISSUES
I.A
This courts jurisdiction over COMELEC cases
Respondents ask that this petition be dismissed on the ground that the
notice and letter are not final orders, decisions, rulings, or judgments of
the COMELEC En Banc issued in the exercise of its adjudicatory powers,
reviewable via Rule 64 of the Rules of Court.21
Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is
applicable especially to raise objections relating to a grave abuse of
discretion resulting in the ouster of jurisdiction. 22 As a special civil action,
there must also be a showing that there be no plain, speedy, and adequate
remedy in the ordinary course of the law.

Respondents contend that the assailed notice and letter are not subject to
review by this court, whose power to review is "limited only to final
decisions, rulings and orders of the COMELEC En Banc rendered in the
exercise of its adjudicatory or quasi-judicial power." 23 Instead, respondents
claim that the assailed notice and letter are reviewable only by COMELEC
itself pursuant to Article IX-C, Section 2(3) of the Constitution 24 on
COMELECs
power
to
decide
all
questions
affecting
elections.25 Respondents invoke the cases of Ambil, Jr. v. COMELEC, 26Repol
v. COMELEC,27 Soriano, Jr. v. COMELEC,28 Blanco v. COMELEC,29 and
Cayetano v. COMELEC,30 to illustrate how judicialintervention is limited to
final decisions, orders, rulings and judgments of the COMELEC En Banc. 31
These cases are not applicable.
In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of
Eastern Samar filed the election protest. 32At issue was the validity of the
promulgation of a COMELEC Division resolution. 33 No motion for
reconsideration was filed to raise this issue before the COMELEC En Banc.
This court declared that it did not have jurisdiction and clarified:
We have interpreted [Section 7, Article IX-A of the Constitution] 34 to mean
final orders, rulings and decisionsof the COMELEC rendered in the exercise
of its adjudicatory or quasi-judicial powers." This decision must be a final
decision or resolution of the Comelec en banc, not of a division, certainly
not an interlocutory order of a division.The Supreme Court has no power to
review viacertiorari, an interlocutory order or even a final resolution of a
Division of the Commission on Elections. 35 (Emphasis in the original,
citations omitted)
However, in the next case cited by respondents, Repol v. COMELEC, this
court provided exceptions to this general rule. Repolwas another election
protest case, involving the mayoralty elections in Pagsanghan,
Samar.36This time, the case was brought to this court because the
COMELEC First Division issued a status quo ante order against the Regional
Trial Court executing its decision pending appeal. 37 This courts ponencia
discussed the general rule enunciated in Ambil, Jr. that it cannot take
jurisdiction
to
review
interlocutory
orders
of
a
COMELEC
Division.38 However, consistent with ABS-CBN Broadcasting Corporation v.
COMELEC,39 it clarified the exception:
This Court, however, has ruled in the past that this procedural requirement
[of filing a motion for reconsideration] may be glossed over to prevent
miscarriage of justice, when the issue involves the principle of social justice
or the protection of labor, when the decision or resolution sought to be set
aside is a nullity, or when the need for relief is extremely urgent and
certiorari is the only adequate and speedy remedy available. 40

Based on ABS-CBN, this court could review orders and decisions of

COMELEC in electoral contests despite not being reviewed by the
COMELEC En Banc, if:

Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do
not operate as precedents to oust this court from taking jurisdiction over
this case. All these cases cited involve election protests or disqualification
cases filed by the losing candidate against the winning candidate.

1) It will prevent the miscarriage of justice;

2) The issue involves a principle of social justice;
3) The issue involves the protection of labor;
4) The decision or resolution sought tobe set aside is a nullity; or
5) The need for relief is extremely urgent and certiorari is the only
adequate and speedy remedy available.
Ultimately, this court took jurisdiction in Repoland decided that the status
quo anteorder issued by the COMELEC Division was unconstitutional.
Respondents also cite Soriano, Jr. v. COMELEC.This case was also an
election protest case involving candidates for the city council of Muntinlupa
City.41 Petitioners in Soriano, Jr.filed before this court a petition for certiorari
against an interlocutory order of the COMELEC First
Division.42 While the petition was pending in this court, the COMELEC First
Division dismissed the main election protest case. 43 Sorianoapplied the
general rule that only final orders should be questioned with this court. The
ponencia for this court, however, acknowledged the exceptions to the
general rule in ABS-CBN.44
Blanco v. COMELEC, another case cited by respondents, was a
disqualification case of one of the mayoralty candidates of Meycauayan,
Bulacan.45 The COMELEC Second Division ruled that petitioner could not
qualify for the 2007 elections due to the findings in an administrative case
that he engaged in vote buying in the 1995 elections. 46 No motion for
reconsideration was filed before the COMELEC En Banc. This court,
however, took cognizance of this case applying one of the exceptions in
ABS-CBN: The assailed resolution was a nullity. 47
Finally, respondents cited Cayetano v. COMELEC, a recent election protest
case involving the mayoralty candidates of Taguig City. 48 Petitioner assailed
a resolution of the COMELEC denying her motion for reconsideration to
dismiss the election protest petition for lack of form and substance. 49 This
court clarified the general rule and refused to take cognizance of the
review of the COMELEC order. While recognizing the exceptions in ABSCBN, this court ruled that these exceptions did not apply. 50

In the present case, petitioners are not candidates seeking for public office.
Their petition is filed to assert their fundamental right to expression.
Furthermore, all these cases cited by respondents pertained to COMELECs
exercise of its adjudicatory or quasi-judicial power. This case pertains to
acts of COMELEC in the implementation of its regulatory powers. When it
issued the notice and letter, the COMELEC was allegedly enforcingelection
laws.
I.B
Rule 65, grave abuse of discretion,
and limitations on political speech
The main subject of thiscase is an alleged constitutional violation: the
infringement on speech and the "chilling effect" caused by respondent
COMELECs notice and letter.
Petitioners allege that respondents committed grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the notice 51 dated
February 22,2013 and letter52 dated February 27, 2013 ordering the
removal of the tarpaulin.53 It is their position that these infringe on their
fundamental right to freedom of expression and violate the principle of
separation of church and state and, thus, are unconstitutional. 54
The jurisdiction of this court over the subject matter is determined from
the allegations in the petition. Subject matter jurisdiction is defined as the
authority "to hear and determine cases of the general class to which the
proceedings in question belong and is conferred by the sovereign authority
which organizes the court and defines its powers." 55 Definitely, the subject
matter in this case is different from the cases cited by respondents.
Nothing less than the electorates political speech will be affected by the
restrictions imposed by COMELEC. Political speech is motivated by the
desire to be heard and understood, to move people to action. It is
concerned with the sovereign right to change the contours of power
whether through the election of representatives in a republican
government or the revision of the basic text of the Constitution. The zeal
with which we protect this kind of speech does not depend on our
evaluation of the cogency of the message. Neither do we assess whether
we should protect speech based on the motives of COMELEC. We evaluate
restrictions on freedom of expression from their effects. We protect both

speech and medium because the quality of this freedom in practice will
define the quality of deliberation in our democratic society.
COMELECs notice and letter affect preferred speech. Respondents acts
are capable of repetition. Under the conditions in which it was issued and
in view of the novelty of this case,it could result in a "chilling effect" that
would affect other citizens who want their voices heard on issues during
the elections. Other citizens who wish to express their views regarding the
election and other related issues may choose not to, for fear of reprisal or
sanction by the COMELEC. Direct resort to this court is allowed to avoid
such proscribed conditions. Rule 65 is also the procedural platform for
raising grave abuse of discretion.
Both parties point to constitutional provisions on jurisdiction. For
petitioners, it referred to this courts expanded exercise of certiorari as
provided by the Constitution as follows:
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 ornot 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.56(Emphasis supplied)
On the other hand, respondents relied on its constitutional mandate to
decide all questions affectingelections. Article IX-C, Section 2(3) of the
Constitution, provides:

"affecting" in this provision cannot be interpreted to mean that COMELEC

has the exclusive power to decide any and allquestions that arise during
elections. COMELECs constitutional competencies during elections should
not operate to divest this court of its own jurisdiction.
The more relevant provision for jurisdiction in this case is Article VIII,
Section 5(1) of the Constitution.This provision provides for this courts
original jurisdiction over petitions for certiorari and prohibition. This should
be read alongside the expanded jurisdiction of the court in Article VIII,
Section 1 of the Constitution.
Certainly, a breach of the fundamental right of expression by COMELEC is
grave abuse of discretion. Thus, the constitutionality of the notice and
letter coming from COMELEC is within this courts power to review.
During elections, we have the power and the duty to correct any grave
abuse of discretion or any act tainted with unconstitutionality on the part
of any government branch or instrumentality. This includes actions by the
COMELEC. Furthermore, it is this courts constitutional mandate to protect
the people against governments infringement of their fundamental rights.
This constitutional mandate out weighs the jurisdiction vested with the
COMELEC.
It will, thus, be manifest injustice if the court does not take jurisdiction over
this case.
I.C

Sec. 2. The Commission on Elections shall exercise the following powers

and functions:
....
(3) Decide, except those involving the right to vote, all questions affecting
elections, including determination of the number and location of polling
places, appointment of election officials and inspectors, and registration of
voters.
Respondents reliance on this provision is misplaced.
We are not confronted here with the question of whether the COMELEC, in
its exercise of jurisdiction, gravely abused it. We are confronted with the
question as to whether the COMELEC had any jurisdiction at all with its acts
threatening imminent criminal action effectively abridging meaningful
political speech.
It is clear that the subject matter of the controversy is the effect of
COMELECs notice and letter on free speech. This does not fall under
Article IX-C, Section 2(3) of the Constitution. The use of the word

Hierarchy of courts
This brings us to the issue of whether petitioners violated the doctrine of
hierarchy of courts in directly filing their petition before this court.
Respondents contend that petitioners failure to file the proper suit with a
lower court of concurrent jurisdiction is sufficient ground for the dismissal
of their petition.57 They add that observation of the hierarchy of courts is
compulsory, citing Heirs of Bertuldo Hinog v. Melicor. 58 While respondents
claim that while there are exceptions to the general rule on hierarchy of
courts, none of these are present in this case.59
On the other hand, petitioners cite Fortich v. Corona 60 on this courts
discretionary power to take cognizance of a petition filed directly to it if
warranted by "compelling reasons, or [by] the nature and importance of
the issues raised. . . ."61 Petitioners submit that there are "exceptional and
compelling reasons to justify a direct resort [with] this Court." 62
In Baez, Jr. v. Concepcion, 63 we explained the necessity of the application
of the hierarchy of courts:

The Court must enjoin the observance of the policy on the hierarchy of
courts, and now affirms that the policy is not to be ignored without serious
consequences. The strictness of the policy is designed to shield the Court
from having to deal with causes that are also well within the competence
of the lower courts, and thus leave time to the Court to deal with the more
fundamental and more essential tasks that the Constitution has assigned
to it. The Court may act on petitions for the extraordinary writs of
certiorari, prohibition and mandamus only when absolutely necessary or
when serious and important reasons exist to justify an exception to the
policy.64
In Baez, we also elaborated on the reasons why lower courts are allowed
to issue writs of certiorari, prohibition, and mandamus, citing Vergara v.
Suelto:65
The Supreme Court is a court of lastresort, and must so remain if it is to
satisfactorily perform the functions assigned to it by the fundamental
charter and immemorial tradition. It cannot and should not be burdened
with the task of dealing with causes in the first instance. Its original
jurisdiction to issue the so-called extraordinary writs should be exercised
only where absolutely necessary or where serious and important reasons
exist therefore. Hence, that jurisdiction should generally be exercised
relative to actions or proceedings before the Court of Appeals, or before
constitutional or other tribunals, bodies or agencies whose acts for some
reason or another are not controllable by the Court of Appeals. Where the
issuance of an extraordinary writ is also within the competence of the
Court of Appeals or a Regional Trial Court, it is in either of these courts that
the specific action for the writs procurement must be presented. This is
and should continue to be the policy in this regard, a policy that courts and
lawyers must strictly observe.66 (Emphasis omitted)
The doctrine that requires respect for the hierarchy of courts was created
by this court to ensure that every level of the judiciary performs its
designated roles in an effective and efficient manner. Trial courts do not
only determine the facts from the evaluation of the evidence presented
before them. They are likewise competent to determine issues of law which
may include the validity of an ordinance, statute, or even an executive
issuance in relation to the Constitution.67 To effectively perform these
functions, they are territorially organized into regions and then into
branches. Their writs generally reach within those territorial boundaries.
Necessarily, they mostly perform the all-important task of inferring the
facts from the evidence as these are physically presented before them. In
many instances, the facts occur within their territorial jurisdiction, which
properly present the actual case that makes ripe a determination of the
constitutionality of such action. The consequences, of course, would be
national in scope. There are, however, some cases where resort to courts
at their level would not be practical considering their decisions could still
be appealed before the higher courts, such as the Court of Appeals.

The Court of Appeals is primarily designed as an appellate court that

reviews the determination of facts and law made by the trial courts. It is
collegiate in nature. This nature ensures more standpoints in the review of
the actions of the trial court. But the Court of Appeals also has original
jurisdiction over most special civil actions. Unlike the trial courts, its writs
can have a nationwide scope. It is competent to determine facts and,
ideally, should act on constitutional issues thatmay not necessarily be
novel unless there are factual questions to determine.
This court, on the other hand, leads the judiciary by breaking new ground
or further reiterating in the light of new circumstances or in the light of
some confusions of bench or bar existing precedents. Rather than a
court of first instance or as a repetition of the actions of the Court of
Appeals, this court promulgates these doctrinal devices in order that it
truly performs that role.
In other words, the Supreme Courts role to interpret the Constitution and
act in order to protect constitutional rights when these become exigent
should not be emasculated by the doctrine in respect of the hierarchy of
courts. That has never been the purpose of such doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad rule. 68 This
court has "full discretionary power to take cognizance and assume
jurisdiction [over] special civil actions for certiorari . . .filed directly with it
for exceptionally compelling reasons69 or if warranted by the nature of the
issues clearly and specifically raised in the petition." 70 As correctly pointed
out by petitioners,71 we have provided exceptions to this doctrine:
First, a direct resort to this court is allowed when there are genuine issues
of constitutionality that must be addressed at the most immediate time. A
direct resort to this court includes availing of the remedies of certiorari and
prohibition toassail the constitutionality of actions of both legislative and
executive branches of the government.72
In this case, the assailed issuances of respondents prejudice not only
petitioners right to freedom of expression in the present case, but also of
others in future similar cases. The case before this court involves an active
effort on the part of the electorate to reform the political landscape. This
has become a rare occasion when private citizens actively engage the
public in political discourse. To quote an eminent political theorist:
[T]he theory of freedom of expression involves more than a technique for
arriving at better social judgments through democratic procedures. It
comprehends a vision of society, a faith and a whole way of life. The theory
grew out of an age that was awakened and invigorated by the idea of new
society in which man's mind was free, his fate determined by his own
powers of reason, and his prospects of creating a rational and enlightened
civilization virtually unlimited. It is put forward as a prescription for
attaining a creative, progressive, exciting and intellectually robust

community. It contemplates a mode of life that, through encouraging

toleration, skepticism, reason and initiative, will allow man to realize his full
potentialities.It spurns the alternative of a society that is tyrannical,
conformist, irrational and stagnant. 73
In a democracy, the citizens right tofreely participate in the exchange of
ideas in furtherance of political decision-making is recognized. It deserves
the highest protection the courts may provide, as public participation in
nation-building isa fundamental principle in our Constitution. As such, their
right to engage in free expression of ideas must be given immediate
protection by this court.
A second exception is when the issuesinvolved are of transcendental
importance.74 In these cases, the imminence and clarity of the threat to
fundamental constitutional rights outweigh the necessity for prudence. The
doctrine relating to constitutional issues of transcendental importance
prevents courts from the paralysis of procedural niceties when clearly
faced with the need for substantial protection.
In the case before this court, there is a clear threat to the paramount right
of freedom of speech and freedom of expression which warrants invocation
of relief from this court. The principles laid down in this decision will likely
influence the discourse of freedom of speech in the future, especially in the
context of elections. The right to suffrage not only includes the right to
vote for ones chosen candidate, but also the right to vocalize that choice
to the public in general, in the hope of influencing their votes. It may be
said that in an election year, the right to vote necessarily includes the right
to free speech and expression. The protection of these fundamental
constitutional rights, therefore, allows for the immediate resort to this
court.
Third, cases of first impression 75 warrant a direct resort to this court. In
cases of first impression, no jurisprudence yet exists that will guide the
lower courts on this matter. In Government of the United States v.
Purganan,76 this court took cognizance of the case as a matter of first
impression that may guide the lower courts:
In the interest of justice and to settle once and for all the important issue
of bail in extradition proceedings, we deem it best to take cognizance of
the present case. Such proceedings constitute a matter of first impression
over which there is, as yet, no local jurisprudence to guide lower courts. 77
This court finds that this is indeed a case of first impression involving as it
does the issue of whether the right of suffrage includes the right of
freedom of expression. This is a question which this court has yet to
provide substantial answers to, through jurisprudence. Thus, direct resort
to this court is allowed.

Fourth, the constitutional issues raisedare better decided by this court. In

Drilon v. Lim,78 this court held that:
. . . it will be prudent for such courts, if only out of a becoming modesty, to
defer to the higher judgmentof this Court in the consideration of its
validity, which is better determined after a thorough deliberation by a
collegiate body and with the concurrence of the majority of those who
participated in its discussion.79 (Citation omitted)
In this case, it is this court, with its constitutionally enshrined judicial
power, that can rule with finality on whether COMELEC committed grave
abuse of discretion or performed acts contrary to the Constitution through
the assailed issuances.
Fifth, the time element presented in this case cannot be ignored. This case
was filed during the 2013 election period. Although the elections have
already been concluded, future cases may be filed that necessitate
urgency in its resolution. Exigency in certain situations would qualify as an
exception for direct resort to this court.
Sixth, the filed petition reviews the act of a constitutional organ. COMELEC
is a constitutional body. In Albano v. Arranz, 80 cited by petitioners, this
court held that "[i]t is easy to realize the chaos that would ensue if the
Court of First Instance ofeach and every province were [to] arrogate itself
the power to disregard, suspend, or contradict any order of the
Commission on Elections: that constitutional body would be speedily
reduced to impotence."81
In this case, if petitioners sought to annul the actions of COMELEC through
pursuing remedies with the lower courts, any ruling on their part would not
have been binding for other citizens whom respondents may place in the
same situation. Besides, thiscourt affords great respect to the Constitution
and the powers and duties imposed upon COMELEC. Hence, a ruling by this
court would be in the best interest of respondents, in order that their
actions may be guided accordingly in the future.
Seventh, petitioners rightly claim that they had no other plain, speedy, and
adequate remedy in the ordinary course of law that could free them from
the injurious effects of respondents acts in violation of their right to
freedom of expression.
In this case, the repercussions of the assailed issuances on this basic right
constitute an exceptionally compelling reason to justify the direct resort to
this court. The lack of other sufficient remedies in the course of law alone
is sufficient ground to allow direct resort to this court.
Eighth, the petition includes questionsthat are "dictated by public welfare
and the advancement of public policy, or demanded by the broader

interest of justice, or the orders complained of were found to be patent

nullities, or the appeal was consideredas clearly an inappropriate
remedy."82 In the past, questions similar to these which this court ruled on
immediately despite the doctrine of hierarchy of courts included citizens
right to bear arms,83government contracts involving modernization of
voters registration lists,84 and the status and existence of a public office.85
This case also poses a question of similar, if not greater import. Hence, a
direct action to this court is permitted.
It is not, however, necessary that all of these exceptions must occur at the
same time to justify a direct resort to this court. While generally, the
hierarchy of courts is respected, the present case falls under the
recognized exceptions and, as such, may be resolved by this court directly.
I.D
The concept of a political question
Respondents argue further that the size limitation and its reasonableness
is a political question, hence not within the ambit of this courts power of
review. They cite Justice Vitugs separate opinion in Osmea v.
COMELEC86 to support their position:
It might be worth mentioning that Section 26, Article II, of the Constitution
also states that the "State shall guarantee equal access to opportunities
for public service, and prohibit political dynasties as may be defined by
law." I see neither Article IX (C)(4) nor Section 26, Article II, of the
Constitution to be all that adversarial or irreconcilably inconsistent with the
right of free expression. In any event, the latter, being one of general
application, must yield to the specific demands of the Constitution. The
freedom of expression concededly holds, it is true, a vantage point in
hierarchy of constitutionally-enshrined rights but, like all fundamental
rights, it is not without limitations.
The case is not about a fight between the "rich" and the "poor" or between
the "powerful" and the "weak" in our society but it is to me a genuine
attempt on the part of Congress and the Commission on Elections to
ensure that all candidates are given an equal chance to media coverage
and thereby be equally perceived as giving real life to the candidates right
of free expression rather than being viewed as an undue restriction of that
freedom. The wisdom in the enactment of the law, i.e., that which the
legislature deems to be best in giving life to the Constitutional mandate, is
not for the Court to question; it is a matter that lies beyond the normal
prerogatives of the Court to pass upon.87
This separate opinion is cogent for the purpose it was said. But it is not in
point in this case.

The present petition does not involve a dispute between the rich and poor,
or the powerful and weak, on their equal opportunities for media coverage
of candidates and their right to freedom of expression. This case concerns
the right of petitioners, who are non-candidates, to post the tarpaulin in
their private property, asan exercise of their right of free expression.
Despite the invocation of the political question doctrine by respondents,
this court is not proscribed from deciding on the merits of this case.
In Taada v. Cuenco,88 this court previously elaborated on the concept of
what constitutes a political question:
What is generally meant, when it is said that a question is political, and not
judicial, is that it is a matter which is to be exercised by the people in their
primary political capacity, or that it has been specifically delegated to
some other department or particular officer of the government,
withdiscretionary power to act.89 (Emphasis omitted)
It is not for this court to rehearse and re-enact political debates on what
the text of the law should be. In political forums, particularly the
legislature, the creation of the textof the law is based on a general
discussion of factual circumstances, broadly construed in order to allow for
general application by the executive branch. Thus, the creation of the law
is not limited by particular and specific facts that affect the rights of
certain individuals, per se.
Courts, on the other hand, rule on adversarial positions based on existing
facts established on a specific case-to-case basis, where parties affected
by the legal provision seek the courts understanding of the law.
The complementary nature of the political and judicial branches of
government is essential in order to ensure that the rights of the general
public are upheld at all times. In order to preserve this balance, branches
of government must afford due respectand deference for the duties and
functions constitutionally delegated to the other. Courts cannot rush to
invalidate a law or rule. Prudence dictates that we are careful not to veto
political acts unless we can craft doctrine narrowly tailored to the
circumstances of the case.
The case before this court does not call for the exercise of prudence or
modesty. There is no political question. It can be acted upon by this court
through the expanded jurisdiction granted to this court through Article VIII,
Section 1 of the Constitution.
A political question arises in constitutional issues relating to the powers or
competence of different agencies and departments of the executive or
those of the legislature. The political question doctrine is used as a defense
when the petition asks this court to nullify certain acts that are exclusively
within the domain of their respective competencies, as provided by the
Constitution or the law. In such situation, presumptively, this court should

act with deference. It will decline to void an act unless the exercise of that
power was so capricious and arbitrary so as to amount to grave abuse of
discretion.
The concept of a political question, however, never precludes judicial
review when the act of a constitutional organ infringes upon a fundamental
individual or collective right. Even assuming arguendo that the COMELEC
did have the discretion to choose the manner of regulation of the tarpaulin
in question, it cannot do so by abridging the fundamental right to
expression.

the consequences would be to ascertain the political legitimacy of a

successor President.
Many constitutional cases arise from political crises. The actors in such
crises may use the resolution of constitutional issues as leverage. But the
expanded jurisdiction of this court now mandates a duty for it to exercise
its power of judicial review expanding on principles that may avert
catastrophe or resolve social conflict.
This courts understanding of the political question has not been static or
unbending. In Llamas v. Executive Secretary Oscar Orbos, 97 this court held:

Marcos v. Manglapus90 limited the use of the political question doctrine:

When political questions are involved, the Constitution limits the
determination to whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the official whose
action is being questioned. If grave abuse is not established, the Court will
not substitute its judgment for that of the official concerned and decide a
matter which by its nature or by law is for the latter alone to decide. 91
How this court has chosen to address the political question doctrine has
undergone an evolution since the timethat it had been first invoked in
Marcos v. Manglapus. Increasingly, this court has taken the historical and
social context of the case and the relevance of pronouncements of
carefully and narrowly tailored constitutional doctrines. This trend was
followed in cases such as Daza v. Singson92 and Coseteng v. Mitra Jr.93
Daza and Coseteng involved a question as to the application of Article VI,
Section 18 of the 1987 Constitution involving the removal of petitioners
from the Commission on Appointments. In times past, this would have
involved a quint essentially political question as it related to the
dominance of political parties in Congress. However, in these cases, this
court exercised its power of judicial review noting that the requirement of
interpreting the constitutional provision involved the legality and not the
wisdom of a manner by which a constitutional duty or power was
exercised. This approach was again reiterated in Defensor Santiago v.
Guingona, Jr.94
In Integrated Bar of the Philippines v. Zamora, 95 this court declared again
that the possible existence ofa political question did not bar an
examination of whether the exercise of discretion was done with grave
abuse of discretion. In that case, this court ruled on the question of
whether there was grave abuse of discretion in the Presidents use of his
power to call out the armed forces to prevent and suppress lawless
violence.
In Estrada v. Desierto,96 this court ruled that the legal question as to
whether a former President resigned was not a political question even if

While it is true that courts cannot inquire into the manner in which the
President's discretionary powers are exercised or into the wisdom for its
exercise, it is also a settled rule that when the issue involved concerns the
validity of such discretionary powers or whether said powers are within the
limits prescribed by the Constitution, We will not decline to exercise our
power of judicial review. And such review does not constitute a
modification or correction of the act of the President, nor does it constitute
interference with the functions of the President.98
The concept of judicial power in relation to the concept of the political
question was discussed most extensively in Francisco v. HRET. 99 In this
case, the House of Representatives arguedthat the question of the validity
of the second impeachment complaint that was filed against former Chief
Justice Hilario Davide was a political question beyond the ambit of this
court. Former Chief Justice Reynato Puno elaborated on this concept in his
concurring and dissenting opinion:
To be sure, the force to impugn the jurisdiction of this Court becomes more
feeble in light of the new Constitution which expanded the definition of
judicial power as including "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." As well observed by
retired Justice Isagani Cruz, this expanded definition of judicial power
considerably constricted the scope of political question. He opined that the
language luminously suggests that this duty (and power) is available even
against the executive and legislative departments including the President
and
the
Congress,
in
the
exercise
of
their
discretionary
powers.100 (Emphasis in the original, citations omitted)
Francisco also provides the cases which show the evolution of the political
question, as applied in the following cases:
In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene
Cortes, held: The present Constitution limits resort to the political question
doctrine and broadens the scope of judicial inquiry into areas which the

Court,under previous constitutions, would have normally left to the political

departments to decide. x x x
In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro
Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that this Court must
perform under the Constitution. Moreover, as held in a recent case, "(t)he
political question doctrine neither interposes an obstacle to judicial
determination of the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by no means
does away with the applicability of the principle in appropriate cases."
(Emphasis and italics supplied)
And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court
ruled:
In the case now before us, the jurisdictional objection becomes even less
tenable and decisive. The reason is that, even if we were to assume that
the issue presented before us was political in nature, we would still not be
precluded from resolving it under the expanded jurisdiction conferred upon
us that now covers, in proper cases, even the political question.x x x
(Emphasis and italics supplied.)
....
In our jurisdiction, the determination of whether an issue involves a truly
political and non-justiciable question lies in the answer to the question of
whether there are constitutionally imposed limits on powers or functions
conferred upon political bodies. If there are, then our courts are duty-bound
to examine whether the branch or instrumentality of the government
properly acted within such limits.101 (Citations omitted)
As stated in Francisco, a political question will not be considered justiciable
if there are no constitutionally imposed limits on powers or functions
conferred upon political bodies. Hence, the existence of constitutionally
imposed limits justifies subjecting the official actions of the body to the
scrutiny and review of this court.
In this case, the Bill of Rights gives the utmost deference to the right to
free speech. Any instance that this right may be abridged demands judicial
scrutiny. It does not fall squarely into any doubt that a political question
brings.
I.E
Exhaustion of administrative remedies

Respondents allege that petitioners violated the principle of exhaustion of

administrative remedies. Respondents insist that petitioners should have
first brought the matter to the COMELEC En Banc or any of its divisions. 102
Respondents point out that petitioners failed to comply with the
requirement in Rule 65 that "there is no appeal, or any plain, speedy, and
adequate remedy in the ordinary course of law." 103 They add that the
proper venue to assail the validity of the assailed issuances was in the
course of an administrative hearing to be conducted by COMELEC. 104 In the
event that an election offense is filed against petitioners for posting the
tarpaulin, they claim that petitioners should resort to the remedies
prescribed in Rule 34 of the COMELEC Rules of Procedure. 105
The argument on exhaustion of administrative remedies is not proper in
this case.
Despite the alleged non-exhaustion of administrative remedies, it is clear
that the controversy is already ripe for adjudication. Ripeness is the
"prerequisite that something had by then been accomplished or performed
by either branch [or in this case, organ of government] before a court may
come into the picture."106
Petitioners exercise of their rightto speech, given the message and their
medium, had understandable relevance especially during the elections.
COMELECs letter threatening the filing of the election offense against
petitioners is already an actionable infringement of this right. The
impending threat of criminal litigation is enough to curtail petitioners
speech.
In the context of this case, exhaustion of their administrative remedies as
COMELEC suggested in their pleadings prolongs the violation of their
freedom of speech.
Political speech enjoys preferred protection within our constitutional order.
In Chavez v. Gonzales,107 Justice Carpio in a separate opinion emphasized:
"[i]f everthere is a hierarchy of protected expressions, political expression
would occupy the highest rank, and among different kinds of political
expression, the subject of fair and honest elections would be at the
top."108 Sovereignty resides in the people. 109 Political speech is a direct
exercise of the sovereignty. The principle of exhaustion of administrative
remedies yields in order to protect this fundamental right.
Even assuming that the principle of exhaustion of administrative remedies
is applicable, the current controversy is within the exceptions to the
principle. In Chua v. Ang,110 this court held:
On the other hand, prior exhaustion of administrative remedies may be
dispensed with and judicial action may be validly resorted to immediately:

(a) when there is a violation of due process; (b) when the issue involved is
purely a legal question; (c) when the administrative action is patently
illegal amounting to lack or excess of jurisdiction; (d) when there is
estoppel on the part ofthe administrative agency concerned; (e) when
there is irreparable injury; (f) when the respondent is a department
secretary whose acts as analter ego of the President bear the implied and
assumed approval of the latter; (g) when to require exhaustion of
administrative remedies would be unreasonable; (h) when it would amount
to a nullification of a claim; (i) when the subject matter is a private land in
land case proceedings; (j) whenthe rule does not provide a plain, speedy
and adequate remedy; or (k) when there are circumstances indicating the
urgency of judicial intervention."111 (Emphasis supplied, citation omitted)
The circumstances emphasized are squarely applicable with the present
case. First, petitioners allegethat the assailed issuances violated their right
to freedom of expression and the principle of separation of church and
state. This is a purely legal question. Second, the circumstances of the
present case indicate the urgency of judicial intervention considering the
issue then on the RH Law as well as the upcoming elections. Thus, to
require the exhaustion of administrative remedies in this case would be
unreasonable.
Time and again, we have held that this court "has the power to relax or
suspend the rules or to except a case from their operation when
compelling reasons so warrant, or whenthe purpose of justice requires it,
[and when] [w]hat constitutes [as] good and sufficient cause that will merit
suspension of the rules is discretionary upon the court". 112 Certainly, this
case of first impression where COMELEC has threatenedto prosecute
private parties who seek to participate in the elections by calling attention
to issues they want debated by the publicin the manner they feel would be
effective is one of those cases.

First, respondents cite Article IX-C, Section 4 of the Constitution, which

provides:
Section 4. The Commission may,during the election period, supervise or
regulate the enjoyment or utilization of all franchises or permits for the
operation of transportation and other public utilities, media of
communication or information, all grants, special privileges, or concessions
granted by the Government or any subdivision, agency, or instrumentality
thereof, including any government-owned or controlled corporation or its
subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable,
equal rates therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly, honest,
peaceful, and credible elections.114 (Emphasis supplied)
Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during
the plebiscite for the creation of the Cordillera Autonomous
Region.116 Columnist Pablito V. Sanidad questioned the provision prohibiting
journalists from covering plebiscite issues on the day before and on
plebiscite day.117 Sanidad argued that the prohibition was a violation of the
"constitutional guarantees of the freedom of expression and of the
press. . . ."118 We held that the "evil sought to be prevented by this
provision is the possibility that a franchise holder may favor or give any
undue advantage to a candidate in terms of advertising space or radio or
television time."119 This court found that "[m]edia practitioners exercising
their freedom of expression during plebiscite periods are neither the
franchise holders nor the candidates[,]" 120 thus, their right to expression
during this period may not be regulated by COMELEC.121
Similar to the media, petitioners in the case at bar are neither franchise
holders nor candidates. II.A.2

II
SUBSTANTIVE ISSUES

Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as

follows:122

II.A

Sec. 2. The Commission on Elections shall exercise the following powers

and functions:

COMELEC had no legal basis to regulate expressions made by private

citizens

....

Respondents cite the Constitution, laws, and jurisprudence to support their

position that they had the power to regulate the tarpaulin. 113 However, all
of these provisions pertain to candidates and political parties. Petitioners
are not candidates. Neither do theybelong to any political party. COMELEC
does not have the authority to regulate the enjoyment of the preferred
right to freedom of expression exercised by a non-candidate in this case.

(7) Recommend to the Congress effective measures to minimize election

spending, including limitation of places where propaganda materials shall
be posted, and to prevent and penalize all forms of election frauds,
offenses, malpractices, and nuisance candidates. (Emphasis supplied)
Based on the enumeration made on actsthat may be penalized, it will be
inferred that this provision only affects candidates.

II.A.1

Petitioners assail the "Notice to Remove Campaign Materials" issued by

COMELEC. This was followed bythe assailed letter regarding the "election
propaganda material posted on the church vicinity promoting for or against
the candidates and party-list groups. . . ."123

Respondents considered the tarpaulin as a campaign material in their

issuances. The above provisions regulating the posting of campaign
materials only apply to candidates and political parties, and petitioners are
neither of the two.

Section 9 of the Fair Election Act 124 on the posting of campaign materials
only mentions "parties" and "candidates":

Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also

states that these are "allowed for all registered political parties, national,
regional, sectoral parties or organizations participating under the party-list
elections and for all bona fide candidates seeking national and local
elective positions subject to the limitation on authorized expenses of
candidates and political parties. . . ." Section 6 of COMELEC Resolution No.
9615 provides for a similar wording. These provisions show that election
propaganda refers to matter done by or on behalf of and in coordination
with candidates and political parties. Some level of coordination with the
candidates and political parties for whom the election propaganda are
released would ensure that these candidates and political parties maintain
within the authorized expenses limitation.

Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize

political parties and party-list groups to erect common poster areas for
their candidates in not more than ten (10) public places such as plazas,
markets, barangay centers and the like, wherein candidates can post,
display or exhibit election propaganda: Provided, That the size ofthe poster
areas shall not exceed twelve (12) by sixteen (16) feet or its equivalent.
Independent candidates with no political parties may likewise be
authorized to erect common poster areas in not more than ten (10) public
places, the size of which shall not exceed four (4) by six (6) feet or its
equivalent. Candidates may post any lawful propaganda material in private
places with the consent of the owner thereof, and in public places or
property which shall be allocated equitably and impartially among the
candidates. (Emphasis supplied)
Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and
regulations implementing the Fair Election Act, provides as follows:
SECTION 17. Posting of Campaign Materials. - Parties and candidates may
post any lawful campaign material in:
a. Authorized common poster areasin public places subject to the
requirements and/or limitations set forth in the next following
section; and
b. Private places provided it has the consent of the owner thereof.
The posting of campaign materials in public places outside of the
designated common poster areas and those enumerated under Section 7
(g) of these Rules and the like is prohibited. Persons posting the same shall
be liable together with the candidates and other persons who caused the
posting. It will be presumed that the candidates and parties caused the
posting of campaign materials outside the common poster areas if they do
not remove the same within three (3) days from notice which shall be
issued by the Election Officer of the city or municipality where the unlawful
election propaganda are posted or displayed.
Members of the PNP and other law enforcement agencies called upon by
the Election Officeror other officials of the COMELEC shall apprehend the
violators caught in the act, and file the appropriate charges against them.
(Emphasis supplied)

The tarpaulin was not paid for byany candidate or political party. 125 There
was no allegation that petitioners coordinated with any of the persons
named in the tarpaulin regarding its posting. On the other hand, petitioners
posted the tarpaulin as part of their advocacy against the RH Law.
Respondents also cite National Press Club v. COMELEC 126 in arguing that its
regulatory power under the Constitution, to some extent, set a limit on the
right to free speech during election period.127
National Press Club involved the prohibition on the sale and donation of
space and time for political advertisements, limiting political
advertisements to COMELEC-designated space and time. This case was
brought by representatives of mass media and two candidates for office in
the 1992 elections. They argued that the prohibition on the sale and
donation of space and time for political advertisements is tantamount to
censorship, which necessarily infringes on the freedom of speech of the
candidates.128
This court upheld the constitutionality of the COMELEC prohibition in
National Press Club. However, this case does not apply as most of the
petitioners were electoral candidates, unlike petitioners in the instant case.
Moreover, the subject matter of National Press Club, Section 11(b) of
Republic Act No. 6646,129 only refers to a particular kind of media such as
newspapers, radio broadcasting, or television.130 Justice Feliciano
emphasized that the provision did not infringe upon the right of reporters
or broadcasters to air their commentaries and opinions regarding the
candidates, their qualifications, and program for government. Compared to
Sanidadwherein the columnists lost their ability to give their commentary
on the issues involving the plebiscite, National Press Clubdoes not involve
the same infringement.

In the case at bar, petitioners lost their ability to give a commentary on the
candidates for the 2013 national elections because of the COMELEC notice
and letter. It was not merelya regulation on the campaigns of candidates
vying for public office. Thus, National Press Clubdoes not apply to this case.

In this case, the tarpaulin contains speech on a matter of public concern,

that is, a statement of either appreciation or criticism on votes made in the
passing of the RH law. Thus, petitioners invoke their right to freedom of
expression.

Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the

Omnibus Election Code, defines an"election campaign" as follows:

II.B
The violation of the constitutional right

....
to freedom of speech and expression
(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 ifperformed 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
electionor 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. (Emphasis supplied)
True, there is no mention whether election campaign is limited only to the
candidates and political parties themselves. The focus of the definition is
that the act must be "designed to promote the election or defeat of a
particular candidate or candidates to a public office."

Petitioners contend that the assailed notice and letter for the removal of
the tarpaulin violate their fundamental right to freedom of expression.
On the other hand, respondents contend that the tarpaulin is an election
propaganda subject to their regulation pursuant to their mandate under
Article IX-C, Section 4 of the Constitution. Thus, the assailed notice and
letter ordering itsremoval for being oversized are valid and
constitutional.131
II.B.1
Fundamental to the consideration of this issue is Article III, Section 4 of the
Constitution:
Section 4. No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances. 132
No law. . .
While it is true that the present petition assails not a law but an opinion by
the COMELEC Law Department, this court has applied Article III, Section 4
of the Constitution even to governmental acts.
In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section
1119 of the Revised Ordinances of 1927 of Manila for the public meeting
and assembly organized by petitioner Primicias.134 Section 1119 requires a
Mayors permit for the use of streets and public places for purposes such
as athletic games, sports, or celebration of national holidays. 135 What was
questioned was not a law but the Mayors refusal to issue a permit for the
holding of petitioners public meeting.136 Nevertheless, this court
recognized the constitutional right to freedom of speech, to peaceful
assembly and to petition for redress of grievances, albeit not
absolute,137 and the petition for mandamus to compel respondent Mayor to
issue the permit was granted.138

In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En
Banc Resolution No. 98-1419 where the COMELEC resolved to approve the
issuance of a restraining order to stop ABS-CBN from conducting exit
surveys.139 The right to freedom of expression was similarly upheld in this
case and, consequently, the assailed resolution was nullified and set
aside.140
. . . shall be passed abridging. . .
All regulations will have an impact directly or indirectly on expression. The
prohibition against the abridgment of speech should not mean an absolute
prohibition against regulation. The primary and incidental burden on
speech must be weighed against a compelling state interest clearly
allowed in the Constitution. The test depends on the relevant theory of
speech implicit in the kind of society framed by our Constitution.
. . . of expression. . .
Our Constitution has also explicitly included the freedom of expression,
separate and in addition to the freedom of speech and of the press
provided in the US Constitution. The word "expression" was added in the
1987 Constitution by Commissioner Brocka for having a wider scope:
MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On
Section 9, page 2, line 29, it says: "No law shall be passed abridging the
freedom of speech." I would like to recommend to the Committee the
change of the word "speech" to EXPRESSION; or if not, add the words AND
EXPRESSION after the word "speech," because it is more expansive, it has
a wider scope, and it would refer to means of expression other than
speech.

itself as "[t]he right to think is the beginning of freedom, and speech must
be protected from the government because speech is the beginning of
thought."142
II.B.2
Communication
is
an
essential
outcome
of
protected
speech.143 Communication exists when "(1) a speaker, seeking to signal
others, uses conventional actions because he orshe reasonably believes
that such actions will be taken by the audience in the manner intended;
and (2) the audience so takes the actions." 144 "[I]n communicative action[,]
the hearer may respond to the claims by . . . either accepting the speech
acts claims or opposing them with criticism or requests for justification." 145
Speech is not limited to vocal communication. "[C]onduct is treated as a
form of speech sometimes referred to as symbolic speech[,]" 146 such that
"when speech and nonspeech elements are combined in the same
course of conduct, the communicative element of the conduct may be
sufficient to bring into play the [right to freedom of expression]."147
The right to freedom of expression, thus, applies to the entire continuum of
speech from utterances made to conduct enacted, and even to inaction
itself as a symbolic manner of communication.
In Ebralinag v. The Division Superintendent of Schools of Cebu, 148 students
who were members of the religious sect Jehovahs Witnesses were to be
expelled from school for refusing to salute the flag, sing the national
anthem, and recite the patriotic pledge. 149 In his concurring opinion, Justice
Cruz discussed how the salute is a symbolic manner of communication and
a valid form of expression. 150 He adds that freedom of speech includes
even the right to be silent:

THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?

FR. BERNAS: "Expression" is more broad than speech. We accept it.
MR. BROCKA: Thank you.
THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
FR. BERNAS: Yes.
THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence)
The Chair hears none; the amendment is approved.
FR. BERNAS: So, that provision will now read: "No law shall be passed
abridging
the
freedom
of
speech,
expression
or
of
the
press . . . ."141 Speech may be said to be inextricably linked to freedom

Freedom of speech includes the right to be silent. Aptly has it been said
that the Bill of Rights that guarantees to the individual the liberty to utter
what is in his mind also guarantees to him the liberty not to utter what is
not in his mind. The salute is a symbolic manner of communication that
conveys its messageas clearly as the written or spoken word. As a valid
form of expression, it cannot be compelled any more than it can be
prohibited in the face of valid religious objections like those raised in this
petition. To impose it on the petitioners is to deny them the right not to
speak when their religion bids them to be silent. This coercion of
conscience has no place in the free society.
The democratic system provides for the accommodation of diverse ideas,
including the unconventional and even the bizarre or eccentric. The will of
the majority prevails, but it cannot regiment thought by prescribing the
recitation by rote of its opinions or proscribing the assertion of unorthodox
or unpopular views as inthis case. The conscientious objections of the
petitioners, no less than the impatience of those who disagree with them,

are protected by the Constitution. The State cannot make the individual
speak when the soul within rebels.151

be more convinced of the point made by authoritative figures when they

make the effort to emphasize their messages.

Even before freedom "of expression" was included in Article III, Section 4 of
the present Constitution,this court has applied its precedent version to
expressions other than verbal utterances.

Third, larger spaces allow for more messages. Larger spaces, therefore,
may translate to more opportunities to amplify, explain, and argue points
which the speakers might want to communicate. Rather than simply
placing the names and images of political candidates and an expression of
support, larger spaces can allow for brief but memorable presentations of
the candidates platforms for governance. Larger spaces allow for more
precise inceptions of ideas, catalyze reactions to advocacies, and
contribute more to a more educated and reasoned electorate. A more
educated electorate will increase the possibilities of both good governance
and accountability in our government.

In the 1985 case of Gonzalez v. Chairman Katigbak, 152 petitioners objected

to the classification of the motion picture "Kapit sa Patalim" as "For Adults
Only." They contend that the classification "is without legal and factual
basis and is exercised as impermissible restraint of artistic
expression."153 This court recognized that "[m]otion pictures are important
both as a medium for the communication of ideas and the expression of
the artistic impulse."154 It adds that "every writer,actor, or producer, no
matter what medium of expression he may use, should be freed from the
censor."155 This court found that "[the Boards] perception of what
constitutes obscenity appears to be unduly restrictive."156 However, the
petition was dismissed solely on the ground that there were not enough
votes for a ruling of grave abuse of discretion in the classification made by
the Board.157
II.B.3
Size does matter
The form of expression is just as important as the information conveyed
that it forms part of the expression. The present case is in point.

These points become more salient when it is the electorate, not the
candidates or the political parties, that speaks. Too often, the terms of
public discussion during elections are framed and kept hostage by brief
and catchy but meaningless sound bites extolling the character of the
candidate. Worse, elections sideline political arguments and privilege the
endorsement by celebrities. Rather than provide obstacles to their speech,
government should in fact encourage it. Between the candidates and the
electorate, the latter have the better incentive to demand discussion of the
more important issues. Between the candidates and the electorate, the
former have better incentives to avoid difficult political standpoints and
instead focus on appearances and empty promises.
Large tarpaulins, therefore, are not analogous to time and place. 158 They
are fundamentally part of expression protected under Article III, Section 4
of the Constitution.

It is easy to discern why size matters.

II.B.4
First, it enhances efficiency in communication. A larger tarpaulin allows
larger fonts which make it easier to view its messages from greater
distances. Furthermore, a larger tarpaulin makes it easier for passengers
inside moving vehicles to read its content. Compared with the pedestrians,
the passengers inside moving vehicles have lesser time to view the
content of a tarpaulin. The larger the fonts and images, the greater the
probability that it will catch their attention and, thus, the greater the
possibility that they will understand its message.
Second, the size of the tarpaulin may underscore the importance of the
message to the reader. From an ordinary persons perspective, those who
post their messages in larger fonts care more about their message than
those who carry their messages in smaller media. The perceived
importance given by the speakers, in this case petitioners, to their cause is
also part of the message. The effectivity of communication sometimes
relies on the emphasis put by the speakers and onthe credibility of the
speakers themselves. Certainly, larger segments of the public may tend to

There are several theories and schools of thought that strengthen the need
to protect the basic right to freedom of expression.
First, this relates to the right ofthe people to participate in public affairs,
including the right to criticize government actions.
Proponents of the political theory on "deliberative democracy" submit that
"substantial, open, [and] ethical dialogue isa critical, and indeed defining,
feature of a good polity." 159 This theory may be considered broad, but it
definitely "includes [a] collective decision making with the participation of
all who will beaffected by the decision." 160It anchors on the principle that
the cornerstone of every democracy is that sovereignty resides in the
people.161 To ensure order in running the states affairs, sovereign powers
were delegated and individuals would be elected or nominated in key
government positions to represent the people. On this note, the theory on
deliberative democracy may evolve to the right of the people to make

government accountable. Necessarily, this includes the right of the people

to criticize acts made pursuant to governmental functions.
Speech that promotes dialogue on publicaffairs, or airs out grievances and
political discontent, should thus be protected and encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to discourage
thought, hope and imagination; that fear breeds repression; that repression
breeds hate; that hate menaces stable government; that the path of safety
lies in the opportunity to discuss freely supposed grievances and proposed
remedies."162
In this jurisdiction, this court held that "[t]he interest of society and the
maintenance of good government demand a full discussion of public
affairs."163 This court has, thus, adopted the principle that "debate on
public issues should be uninhibited, robust,and wide open . . . [including
even] unpleasantly sharp attacks on government and public officials." 164
Second, free speech should be encouraged under the concept of a market
place of ideas. This theory was articulated by Justice Holmes in that "the
ultimate good desired is better reached by [the] free trade in ideas:" 165
When men have realized that time has upset many fighting faiths, they
may come to believe even more than they believe the very foundations of
their own conduct that the ultimate good desired is better reached by free
trade in ideas - that the best test of truth is the power of the thought to get
itself accepted in the competition of the market, and that truth is the only
ground upon which their wishes safely can be carried out. 166
The way it works, the exposure to the ideas of others allows one to
"consider, test, and develop their own conclusions." 167 A free, open, and
dynamic market place of ideas is constantly shaping new ones. This
promotes both stability and change where recurring points may crystallize
and weak ones may develop. Of course, free speech is more than the right
to approve existing political beliefs and economic arrangements as it
includes, "[t]o paraphrase Justice Holmes, [the] freedom for the thought
that we hate, no less than for the thought that agrees with us." 168 In fact,
free speech may "best serve its high purpose when it induces a condition
of unrest, creates dissatisfaction with conditions as they are, or even stirs
people to anger."169 It is in this context that we should guard against any
curtailment of the peoples right to participate in the free trade of ideas.
Third, free speech involves self-expression that enhances human dignity.
This right is "a means of assuring individual self-fulfillment," 170 among
others. In Philippine Blooming Mills Employees Organization v. Philippine
Blooming Mills Co., Inc,171 this court discussed as follows:

The rights of free expression, free assembly and petition, are not only civil
rights but also political rights essential to man's enjoyment of his life, to his
happiness and to his full and complete fulfillment.Thru these freedoms the
citizens can participate not merely in the periodic establishment of the
government through their suffrage but also in the administration of public
affairs as well as in the discipline of abusive public officers. The citizen is
accorded these rights so that he can appeal to the appropriate
governmental officers or agencies for redress and protection as well as for
the imposition of the lawful sanctions on erring public officers and
employees.172 (Emphasis supplied)
Fourth, expression is a marker for group identity. For one, "[v]oluntary
associations perform [an] important democratic role [in providing] forums
for the development of civil skills, for deliberation, and for the formation of
identity and community spirit[,] [and] are largely immune from [any]
governmental interference."173 They also "provide a buffer between
individuals and the state - a free space for the development of individual
personality, distinct group identity, and dissident ideas - and a potential
source of opposition to the state." 174 Free speech must be protected as the
vehicle to find those who have similar and shared values and ideals, to join
together and forward common goals.
Fifth, the Bill of Rights, free speech included, is supposed to "protect
individuals and minorities against majoritarian abuses perpetrated through
[the] framework [of democratic governance]."175 Federalist framers led by
James Madison were concerned about two potentially vulnerable groups:
"the citizenry at large - majorities - who might be tyrannized or plundered
by despotic federal officials"176 and the minorities who may be oppressed
by "dominant factions of the electorate [that] capture [the] government for
their own selfish ends[.]"177 According to Madison, "[i]t is of great
importance in a republic not only to guard the society against the
oppression of its rulers, but to guard one part of the society against the
injustice of the other part." 178 We should strive to ensure that free speech is
protected especially in light of any potential oppression against those who
find themselves in the fringes on public issues.
Lastly, free speech must be protected under the safety valve theory. 179 This
provides that "nonviolent manifestations of dissent reduce the likelihood of
violence[.]"180 "[A] dam about to burst . . . resulting in the banking up of a
menacing flood of sullen anger behind the walls of restriction" 181 has been
used to describe the effect of repressing nonviolent outlets. 182 In order to
avoid this situation and prevent people from resorting to violence, there is
a need for peaceful methods in making passionate dissent. This includes
"free expression and political participation" 183 in that they can "vote for
candidates who share their views, petition their legislatures to [make or]
change laws, . . . distribute literature alerting other citizens of their
concerns[,]"184 and conduct peaceful rallies and other similar acts. 185 Free
speech must, thus, be protected as a peaceful means of achieving ones
goal, considering the possibility that repression of nonviolent dissent may
spill over to violent means just to drive a point.

II.B.5
Every citizens expression with political consequences enjoys a high degree
of protection. Respondents argue that the tarpaulinis election propaganda,
being petitioners way of endorsing candidates who voted against the RH
Law and rejecting those who voted for it. 186 As such, it is subject to
regulation by COMELEC under its constitutional mandate. 187 Election
propaganda is defined under Section 1(4) of COMELEC Resolution No. 9615
as follows: SECTION 1. Definitions . . .
....
4. The term "political advertisement" or "election propaganda" refers to
any matter broadcasted, published, printed, displayed or exhibited, in any
medium, which contain the name, image, logo, brand, insignia, color motif,
initials, and other symbol or graphic representation that is capable of being
associated with a candidate or party, and is intended to draw the attention
of the public or a segment thereof to promote or oppose, directly or
indirectly, the election of the said candidate or candidates to a public
office. In broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped
announcements, teasers, and other forms of advertising messages or
announcements used by commercial advertisers. Political advertising
includes matters, not falling within the scope of personal opinion, that
appear on any Internet website, including, but not limited to, social
networks, blogging sites, and micro-blogging sites, in return for
consideration, or otherwise capable of pecuniary estimation.
On the other hand, petitioners invoke their "constitutional right to
communicate their opinions, views and beliefs about issues and
candidates."188 They argue that the tarpaulin was their statement of
approval and appreciation of the named public officials act of voting
against the RH Law, and their criticism toward those who voted in its
favor.189 It was "part of their advocacy campaign against the RH
Law,"190 which was not paid for by any candidate or political party. 191 Thus,
"the questioned orders which . . . effectively restrain[ed] and curtail[ed]
[their] freedom of expression should be declared unconstitutional and
void."192
This court has held free speech and other intellectual freedoms as "highly
ranked in our scheme of constitutional values." 193 These rights enjoy
precedence and primacy.194 In Philippine Blooming Mills, this court
discussed the preferred position occupied by freedom of expression:
Property and property rights can belost thru prescription; but human rights
are imprescriptible. If human rights are extinguished by the passage of
time, then the Bill of Rights is a useless attempt to limit the power of
government and ceases to be an efficacious shield against the tyranny of

officials, of majorities, ofthe influential and powerful, and of oligarchs political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of
assembly occupy a preferred position as they are essential to the
preservation and vitality of our civil and political institutions; and such
priority "gives these liberties the sanctity and the sanction not permitting
dubious intrusions."195 (Citations omitted)
This primordial right calls for utmost respect, more so "when what may be
curtailed is the dissemination of information to make more meaningful the
equally vital right of suffrage."196 A similar idea appeared in our
jurisprudence as early as 1969, which was Justice Barredos concurring and
dissenting opinion in Gonzales v. COMELEC:197
I like to reiterate over and over, for it seems this is the fundamental point
others miss, that genuine democracy thrives only where the power and
right of the people toelect the men to whom they would entrust the
privilege to run the affairs of the state exist. In the language of the
declaration of principles of our Constitution, "The Philippines is a
republican state. Sovereignty resides in the people and all government
authority emanates from them" (Section 1, Article II). Translating this
declaration into actuality, the Philippines is a republic because and solely
because the people in it can be governed only by officials whom they
themselves have placed in office by their votes. And in it is on this
cornerstone that I hold it tobe self-evident that when the freedoms of
speech, press and peaceful assembly and redress of grievances are being
exercised in relation to suffrage or asa means to enjoy the inalienable right
of the qualified citizen to vote, they are absolute and timeless. If our
democracy and republicanism are to be worthwhile, the conduct of public
affairs by our officials must be allowed to suffer incessant and unabating
scrutiny, favorable or unfavorable, everyday and at all times. Every holder
of power in our government must be ready to undergo exposure any
moment of the day or night, from January to December every year, as it is
only in this way that he can rightfully gain the confidence of the people. I
have no patience for those who would regard public dissection of the
establishment as an attribute to be indulged by the people only at certain
periods of time. I consider the freedoms of speech, press and peaceful
assembly and redress of grievances, when exercised in the name of
suffrage, as the very means by which the right itself to vote can only be
properly enjoyed.It stands to reason therefore, that suffrage itself would be
next to useless if these liberties cannot be untrammelled [sic] whether as
to degree or time.198 (Emphasis supplied)
Not all speech are treated the same. In Chavez v. Gonzales, this court
discussed that some types of speech may be subject to regulation:
Some types of speech may be subjected to some regulation by the State
under its pervasive police power, in order that it may not be injurious to

the equal right of others or those of the community or society. The

difference in treatment is expected because the relevant interests of one
type of speech, e.g., political speech, may vary from those of another, e.g.,
obscene speech. Distinctionshave therefore been made in the treatment,
analysis, and evaluation ofthe permissible scope of restrictions on various
categories of speech. We have ruled, for example, that in our jurisdiction
slander or libel, lewd and obscene speech, as well as "fighting words" are
not entitled to constitutional protection and may be penalized. 199 (Citations
omitted)
We distinguish between politicaland commercial speech. Political speech
refers to speech "both intended and received as a contribution to public
deliberation about some issue,"200 "foster[ing] informed and civicminded
deliberation."201 On the other hand, commercial speech has been defined
as speech that does "no more than propose a commercial
transaction."202 The expression resulting from the content of the tarpaulin
is, however, definitely political speech. In Justice Brions dissenting opinion,
he discussed that "[t]he content of the tarpaulin, as well as the timing of its
posting, makes it subject of the regulations in RA 9006 and Comelec
Resolution No. 9615."203 He adds that "[w]hile indeed the RH issue, by
itself,is not an electoralmatter, the slant that the petitioners gave the issue
converted the non-election issue into a live election one hence, Team
Buhay and Team Patay and the plea to support one and oppose the
other."204
While the tarpaulin may influence the success or failure of the named
candidates and political parties, this does not necessarily mean it is
election propaganda. The tarpaulin was not paid for or posted "in return for
consideration" by any candidate, political party, or party-list group.

It is clear that this paragraph suggests that personal opinions are not
included, while sponsored messages are covered.
Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615
states:
SECTION 1. Definitions - As used in this Resolution:
1. 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, and shall include any of the following:
....
Personal opinions, views, and preferences for candidates, contained in
blogs shall not be considered acts of election campaigning or partisan
politicalactivity unless expressed by government officials in the Executive
Department, the Legislative Department, the Judiciary, the Constitutional
Commissions, and members of the Civil Service.
In any event, this case does not refer to speech in cyberspace, and its
effects and parameters should be deemed narrowly tailored only in relation
to the facts and issues in this case. It also appears that such wording in
COMELEC Resolution No. 9615 does not similarly appear in Republic Act
No. 9006, the law it implements.
We should interpret in this manner because of the value of political speech.

The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or

the rules and regulations implementing Republic Act No. 9006 as an aid to
interpret the law insofar as the facts of this case requires, states:

As early as 1918, in United States v. Bustos, 205 this court recognized the
need for full discussion of public affairs. We acknowledged that free speech
includes the right to criticize the conduct of public men:

4. The term "political advertisement" or "election propaganda" refers to

any matter broadcasted, published, printed, displayed or exhibited, in any
medium, which contain the name, image, logo, brand, insignia, color motif,
initials, and other symbol or graphic representation that is capable of being
associated with a candidate or party, and is intended to draw the attention
of the public or a segment thereof to promote or oppose, directly or
indirectly, the election of the said candidate or candidates to a public
office. In broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped
announcements, teasers, and other forms of advertising messages or
announcements used by commercial advertisers. Political advertising
includes matters, not falling within the scope of personal opinion, that
appear on any Internet website, including, but not limited to, social
networks, blogging sites, and micro-blogging sites, in return for
consideration, or otherwise capable of pecuniary estimation. (Emphasis
supplied)

The interest of society and the maintenance of good government demand

a full discussion of public affairs. Complete liberty to comment on the
conduct of public men is a scalpel in the case of free speech. The sharp
incision of its probe relieves the abscesses of official dom. Men in public life
may suffer under a hostile and an unjust accusation; the wound can be
assuaged with the balm of a clear conscience. A public officer must not be
too thin-skinned with reference to comment upon his official acts. Only
thus can the intelligence and dignity of the individual be exalted. 206
Subsequent jurisprudence developed the right to petition the government
for redress of grievances, allowing for criticism, save for some
exceptions.207 In the 1951 case of Espuelas v. People, 208 this court noted
every citizens privilege to criticize his or her government, provided it is
"specific and therefore constructive, reasoned or tempered, and not a
contemptuous condemnation of the entire government set-up."209

The 1927 case of People v. Titular 210 involved an alleged violation of the
Election Law provision "penaliz[ing] the anonymous criticism of a candidate
by means of posters or circulars."211 This court explained that it is the
posters anonymous character that is being penalized. 212 The ponente adds
that he would "dislike very muchto see this decision made the vehicle for
the suppression of public opinion."213
In 1983, Reyes v. Bagatsing214 discussed the importance of allowing
individuals to vent their views. According to this court, "[i]ts value may lie
in the fact that there may be something worth hearing from the dissenter
[and] [t]hat is to ensurea true ferment of ideas."215
Allowing citizens to air grievances and speak constructive criticisms
against their government contributes to every societys goal for
development. It puts forward matters that may be changed for the better
and ideas that may be deliberated on to attain that purpose. Necessarily, it
also makes the government accountable for acts that violate
constitutionally protected rights.
In 1998, Osmea v. COMELEC found Section 11(b) of Republic Act No.
6646, which prohibits mass media from selling print space and air time for
campaign except to the COMELEC, to be a democracy-enhancing
measure.216This court mentioned how "discussion of public issues and
debate on the qualifications of candidates in an election are essential to
the proper functioning of the government established by our
Constitution."217
As pointed out by petitioners, "speech serves one of its greatest public
purposes in the context of elections when the free exercise thereof informs
the people what the issues are, and who are supporting what issues." 218 At
the heart of democracy is every advocates right to make known what the
people need to know,219 while the meaningful exercise of ones right of
suffrage includes the right of every voter to know what they need to know
in order to make their choice.
Thus, in Adiong v. COMELEC,220 this court discussed the importance of
debate on public issues, and the freedom of expression especially in
relation to information that ensures the meaningful exercise of the right of
suffrage:
We have adopted the principle that debate on public issues should be
uninhibited, robust, and wide open and that it may well include vehement,
caustic and sometimes unpleasantly sharp attacks on government and
public officials. Too many restrictions will deny to people the robust,
uninhibited, and wide open debate, the generating of interest essential if
our elections will truly be free, clean and honest.
We have also ruled that the preferred freedom of expression calls all the
more for the utmost respect when what may be curtailed is the

dissemination of information to make more meaningful the equally vital

right of suffrage.221(Emphasis supplied, citations omitted)
Speech with political consequences isat the core of the freedom of
expression and must be protected by this court.
Justice Brion pointed out that freedomof expression "is not the god of rights
to which all other rights and even government protection of state interest
must bow."222
The right to freedom of expression isindeed not absolute. Even some forms
of protected speech are still subjectto some restrictions. The degree of
restriction may depend on whether the regulation is content-based or
content-neutral.223 Content-based regulations can either be based on the
viewpoint of the speaker or the subject of the expression.
II.B.6
Content-based regulation
COMELEC contends that the order for removal of the tarpaulin is a contentneutral regulation. The order was made simply because petitioners failed
to comply with the maximum size limitation for lawful election
propaganda.224
On the other hand, petitioners argue that the present size regulation is
content-based as it applies only to political speech and not to other forms
of speech such as commercial speech. 225 "[A]ssuming arguendo that the
size restriction sought to be applied . . . is a mere time, place, and manner
regulation, its still unconstitutional for lack of a clear and reasonable
nexus with a constitutionally sanctioned objective." 226
The regulation may reasonably be considered as either content-neutral or
content-based.227 Regardless, the disposition of this case will be the same.
Generally, compared with other forms of speech, the proposed speech is
content-based.
As pointed out by petitioners, the interpretation of COMELEC contained in
the questioned order applies only to posters and tarpaulins that may affect
the elections because they deliver opinions that shape both their choices.
It does not cover, for instance, commercial speech.
Worse, COMELEC does not point to a definite view of what kind of
expression of non-candidates will be adjudged as "election paraphernalia."
There are no existing bright lines to categorize speech as election-related
and those that are not. This is especially true when citizens will want to use
their resources to be able to raise public issues that should be tackled by

the candidates as what has happened in this case. COMELECs discretion to

limit speech in this case is fundamentally unbridled.
Size limitations during elections hit ata core part of expression. The
content of the tarpaulin is not easily divorced from the size of its medium.
Content-based regulation bears a heavy presumption of invalidity, and this
court has used the clear and present danger rule as measure. 228 Thus, in
Chavez v. Gonzales:
A content-based regulation, however, bears a heavy presumption of
invalidity and is measured against the clear and present danger rule. The
latter will pass constitutional muster only if justified by a compelling
reason, and the restrictions imposedare neither overbroad nor
vague.229 (Citations omitted)
Under this rule, "the evil consequences sought to be prevented must be
substantive, extremely serious and the degree of imminence extremely
high."230 "Only when the challenged act has overcome the clear and
present danger rule will it pass constitutional muster, with the government
having the burden of overcoming the presumed unconstitutionality." 231
Even with the clear and present danger test, respondents failed to justify
the regulation. There is no compelling and substantial state interest
endangered by the posting of the tarpaulinas to justify curtailment of the
right of freedom of expression. There is no reason for the state to minimize
the right of non-candidate petitioners to post the tarpaulin in their private
property. The size of the tarpaulin does not affect anyone elses
constitutional rights.
Content-based restraint or censorship refers to restrictions "based on the
subject matter of the utterance or speech." 232 In contrast, content-neutral
regulation includes controls merely on the incidents of the speech such as
time, place, or manner of the speech.233
This court has attempted to define "content-neutral" restraints starting
with the 1948 case of Primicias v. Fugoso. 234 The ordinance in this case was
construed to grant the Mayor discretion only to determine the public places
that may be used for the procession ormeeting, but not the power to
refuse the issuance of a permit for such procession or meeting. 235 This
court explained that free speech and peaceful assembly are "not absolute
for it may be so regulated that it shall not beinjurious to the equal
enjoyment of others having equal rights, nor injurious to the rights of the
community or society."236
The earlier case of Calalang v. Williams237 involved the National Traffic
Commission resolution that prohibited the passing of animal-drawn
vehicles along certain roads at specific hours.238 This court similarly

discussed police power in that the assailed rules carry outthe legislative
policy that "aims to promote safe transit upon and avoid obstructions on
national roads, in the interest and convenience of the public." 239
As early as 1907, United States v. Apurado 240 recognized that "more or less
disorder will mark the public assembly of the people to protest against
grievances whether real or imaginary, because on such occasions feeling is
always wrought to a high pitch of excitement. . . ." 241 It is with this
backdrop that the state is justified in imposing restrictions on incidental
matters as time, place, and manner of the speech.
In the landmark case of Reyes v. Bagatsing, this court summarized the
steps that permit applicants must follow which include informing the
licensing authority ahead of time as regards the date, public place, and
time of the assembly.242 This would afford the public official time to inform
applicants if there would be valid objections, provided that the clear and
present danger test is the standard used for his decision and the applicants
are given the opportunity to be heard. 243 This ruling was practically codified
in Batas Pambansa No. 880, otherwise known as the Public Assembly Act of
1985.
Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid
content-neutral regulation. In the 2006 case of Bayan v. Ermita, 244 this
court discussed how Batas Pambansa No. 880 does not prohibit assemblies
but simply regulates their time, place, and manner. 245 In 2010, this court
found in Integrated Bar of the Philippines v. Atienza 246 that respondent
Mayor Atienza committed grave abuse of discretion when he modified the
rally permit by changing the venue from Mendiola Bridge to Plaza Miranda
without first affording petitioners the opportunity to be heard. 247
We reiterate that the regulation involved at bar is content-based. The
tarpaulin content is not easily divorced from the size of its medium.
II.B.7
Justice Carpio and Justice Perlas-Bernabe suggest that the provisions
imposing a size limit for tarpaulins are content-neutral regulations as these
"restrict the mannerby which speech is relayed but not the content of what
is conveyed."248
If we apply the test for content-neutral regulation, the questioned acts of
COMELEC will not pass the three requirements for evaluating such
restraints on freedom of speech.249 "When the speech restraints take the
form of a content-neutral regulation, only a substantial governmental
interest is required for its validity,"250 and it is subject only to the
intermediate approach.251

This intermediate approach is based on the test that we have prescribed in

several cases.252 A content-neutral government regulation is sufficiently
justified:

Respondents likewise cite the Constitution 262 on their authority to

recommend effective measures to minimize election spending. Specifically,
Article IX-C, Section 2(7) provides:

[1] if it is within the constitutional power of the Government; [2] if it

furthers an important or substantial governmental interest; [3] if the
governmental interest is unrelated to the suppression of free expression;
and [4] if the incident restriction on alleged [freedom of speech &
expression] is no greater than is essential to the furtherance of that
interest.253

Sec. 2. The Commission on Elections shall exercise the following powers

and functions:

On the first requisite, it is not within the constitutional powers of the

COMELEC to regulate the tarpaulin. As discussed earlier, this is protected
speech by petitioners who are non-candidates. On the second requirement,
not only must the governmental interest be important or substantial, it
must also be compelling as to justify the restrictions made.
Compelling governmental interest would include constitutionally declared
principles. We have held, for example, that "the welfare of children and the
States mandate to protect and care for them, as parens
patriae,254 constitute a substantial and compelling government interest in
regulating . . . utterances in TV broadcast."255
Respondent invokes its constitutional mandate to ensure equal opportunity
for public information campaigns among candidates in connection with the
holding of a free, orderly, honest, peaceful, and credible election. 256
Justice Brion in his dissenting opinion discussed that "[s]ize limits to
posters are necessary to ensure equality of public information campaigns
among candidates, as allowing posters with different sizes gives
candidates and their supporters the incentive to post larger posters[,]
[and] [t]his places candidates with more money and/or with deep-pocket
supporters at an undue advantage against candidates with more humble
financial capabilities."257
First, Adiong v. COMELEC has held that this interest is "not as important as
the right of [a private citizen] to freely express his choice and exercise his
right of free speech."258 In any case, faced with both rights to freedom of
speech and equality, a prudent course would be to "try to resolve the
tension in a way that protects the right of participation." 259
Second, the pertinent election lawsrelated to private property only require
that the private property owners consent be obtained when posting
election propaganda in the property.260 This is consistent with the
fundamental right against deprivation of property without due process of
law.261 The present facts do not involve such posting of election
propaganda absent consent from the property owner. Thus, this regulation
does not apply in this case.

....
(7) Recommend to the Congress effective measures to minimize election
spending, including limitation of places where propaganda materials shall
be posted, and to prevent and penalize all forms of election frauds,
offenses, malpractices, and nuisance candidates. (Emphasis supplied) This
does not qualify as a compelling and substantial government interest to
justify regulation of the preferred right to freedom of expression.
The assailed issuances for the removal of the tarpaulin are based on the
two feet (2) by three feet (3) size limitation under Section 6(c) of
COMELEC Resolution No. 9615. This resolution implements the Fair Election
Act that provides for the same size limitation.263
This court held in Adiong v. COMELEC that "[c]ompared to the paramount
interest of the State in guaranteeing freedom of expression, any financial
considerations behind the regulation are of marginal significance."264 In
fact, speech with political consequences, as in this case, should be
encouraged and not curtailed. As petitioners pointed out, the size
limitation will not serve the objective of minimizing election spending
considering there is no limit on the number of tarpaulins that may be
posted.265
The third requisite is likewise lacking. We look not only at the legislative
intent or motive in imposing the restriction, but more so at the effects of
such restriction, if implemented. The restriction must not be narrowly
tailored to achieve the purpose. It must be demonstrable. It must allow
alternative avenues for the actor to make speech.
In this case, the size regulation is not unrelated to the suppression of
speech. Limiting the maximum sizeof the tarpaulin would render
ineffective petitioners message and violate their right to exercise freedom
of expression.
The COMELECs act of requiring the removal of the tarpaulin has the effect
of dissuading expressions with political consequences. These should be
encouraged, more so when exercised to make more meaningful the equally
important right to suffrage.
The restriction in the present case does not pass even the lower test of
intermediate scrutiny for content-neutral regulations.

The action of the COMELEC in thiscase is a strong deterrent to further

speech by the electorate. Given the stature of petitioners and their
message, there are indicators that this will cause a "chilling effect" on
robust discussion during elections.

the candidate or political party would have doneso. This may effectively
skirt the constitutional and statutory limits of campaign spending.

The form of expression is just as important as the message itself. In the

words of Marshall McLuhan, "the medium is the message." 266 McLuhans
colleague and mentor Harold Innis has earlier asserted that "the materials
on which words were written down have often counted for more than the
words themselves."267

The message of petitioners in thiscase will certainly not be what

candidates and political parties will carry in their election posters or media
ads. The message of petitioner, taken as a whole, is an advocacy of a
social issue that it deeply believes. Through rhetorical devices, it
communicates the desire of Diocese that the positions of those who run for
a political position on this social issue be determinative of how the public
will vote. It primarily advocates a stand on a social issue; only secondarily
even almost incidentally will cause the election or non-election of a
candidate.

III
Freedom of expression and equality

Again, this is not the situation in this case.

III.A
The possibility of abuse
Of course, candidates and political parties do solicit the help of private
individuals for the endorsement of their electoral campaigns.
On the one extreme, this can take illicit forms such as when endorsement
materials in the form of tarpaulins, posters, or media advertisements are
made ostensibly by "friends" but in reality are really paid for by the
candidate or political party. This skirts the constitutional value that
provides for equal opportunities for all candidates.
However, as agreed by the parties during the oral arguments in this case,
this is not the situation that confronts us. In such cases, it will simply be a
matter for investigation and proof of fraud on the part of the COMELEC.
The guarantee of freedom of expression to individuals without any
relationship to any political candidate should not be held hostage by the
possibility of abuse by those seeking to be elected. It is true that there can
be underhanded, covert, or illicit dealings so as to hide the candidates real
levels of expenditures. However, labelling all expressions of private parties
that tend to have an effect on the debate in the elections as election
paraphernalia would be too broad a remedy that can stifle genuine speech
like in this case. Instead, to address this evil, better and more effective
enforcement will be the least restrictive means to the fundamental
freedom.
On the other extreme, moved by the credentials and the message of a
candidate, others will spend their own resources in order to lend support
for the campaigns. This may be without agreement between the speaker
and the candidate or his or her political party. In lieu of donating funds to
the campaign, they will instead use their resources directly in a way that

The twin tarpaulins consist of satire of political parties. Satire is a "literary

form that employs such devices as sarcasm, irony and ridicule to deride
prevailing vices or follies,"268 and this may target any individual or group in
society, private and government alike. It seeks to effectively communicate
a greater purpose, often used for "political and social criticism" 269 "because
it tears down facades, deflates stuffed shirts, and unmasks hypocrisy. . . .
Nothing is more thoroughly democratic than to have the high-and-mighty
lampooned and spoofed."270 Northrop Frye, wellknown in this literary field,
claimed that satire had two defining features: "one is wit or humor founded
on fantasy or a sense of the grotesque and absurd, the other is an object of
attack."271 Thus, satire frequently uses exaggeration, analogy, and other
rhetorical devices.
The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of
dead individuals nor could the Archbishop of the Diocese of Bacolod have
intended it to mean that the entire plan of the candidates in his list was to
cause death intentionally. The tarpaulin caricatures political parties and
parodies the intention of those in the list. Furthermore, the list of "Team
Patay" is juxtaposed with the list of "Team Buhay" that further emphasizes
the theme of its author: Reproductive health is an important marker for the
church of petitioners to endorse.
The messages in the tarpaulins are different from the usual messages of
candidates. Election paraphernalia from candidates and political parties are
more declarative and descriptive and contain no sophisticated literary
allusion to any social objective. Thus, they usually simply exhort the public
to vote for a person with a brief description of the attributes of the
candidate. For example "Vote for [x], Sipag at Tiyaga," "Vote for [y], Mr.
Palengke," or "Vote for [z], Iba kami sa Makati."
This courts construction of the guarantee of freedom of expression has
always been wary of censorship or subsequent punishment that entails
evaluation of the speakers viewpoint or the content of ones speech. This
is especially true when the expression involved has political consequences.

In this case, it hopes to affect the type of deliberation that happens during
elections. A becoming humility on the part of any human institution no
matter how endowed with the secular ability to decide legal controversies
with finality entails that we are not the keepers of all wisdom.
Humanitys lack of omniscience, even acting collectively, provides space
for the weakest dissent. Tolerance has always been a libertarian virtue
whose version is embedded in our Billof Rights. There are occasional
heretics of yesterday that have become our visionaries. Heterodoxies have
always given us pause. The unforgiving but insistent nuance that the
majority surely and comfortably disregards provides us with the checks
upon reality that may soon evolve into creative solutions to grave social
problems. This is the utilitarian version. It could also be that it is just part
of human necessity to evolve through being able to express or
communicate.
However, the Constitution we interpret is not a theoretical document. It
contains other provisions which, taken together with the guarantee of free
expression, enhances each others value. Among these are the provisions
that acknowledge the idea of equality. In shaping doctrine construing these
constitutional values, this court needs to exercise extraordinary prudence
and produce narrowly tailored guidance fit to the facts as given so as not
to unwittingly cause the undesired effect of diluting freedoms as exercised
in reality and, thus, render them meaningless.
III.B.
Speech and equality:
Some considerations We first establish that there are two paradigms of free
speech that separate at the point of giving priority to equality vis--vis
liberty.272
In an equality-based approach, "politically disadvantaged speech prevails
over regulation[,] but regulation promoting political equality prevails over
speech."273 This view allows the government leeway to redistribute or
equalize speaking power, such as protecting, even implicitly subsidizing,
unpopular or dissenting voices often systematically subdued within
societys ideological ladder.274 This view acknowledges that there are
dominant political actors who, through authority, power, resources,
identity, or status, have capabilities that may drown out the messages of
others. This is especially true in a developing or emerging economy that is
part of the majoritarian world like ours.
The question of libertarian tolerance
This balance between equality and the ability to express so as to find ones
authentic self or to participate in the self determination of ones

communities is not new only to law. It has always been a philosophical

problematique.
In his seminal work, Repressive Tolerance, philosopher and social theorist
Herbert Marcuse recognized how institutionalized inequality exists as a
background limitation, rendering freedoms exercised within such limitation
as merely "protect[ing] the already established machinery of
discrimination."275 In his view, any improvement "in the normal course of
events" within an unequal society, without subversion, only strengthens
existing interests of those in power and control. 276
In other words, abstract guarantees of fundamental rights like freedom of
expression may become meaningless if not taken in a real context. This
tendency to tackle rights in the abstract compromises liberties. In his
words:
Liberty is self-determination, autonomythis is almost a tautology, but a
tautology which results from a whole series of synthetic judgments. It
stipulates the ability to determine ones own life: to be able to determine
what to do and what not to do, what to suffer and what not. But the subject
of this autonomy is never the contingent, private individual as that which
he actually is or happens to be; it is rather the individual as a human being
who is capable of being free with the others. And the problem of making
possible such a harmony between every individual liberty and the other is
not that of finding a compromise between competitors, or between
freedom and law, between general and individual interest, common and
private welfare in an established society, but of creating the society in
which man is no longer enslaved by institutions which vitiate selfdetermination from the beginning. In other words, freedom is still to be
created even for the freest of the existing societies. 277 (Emphasis in the
original)
Marcuse suggests that the democratic argument with all opinions
presented to and deliberated by the people "implies a necessary
condition, namely, that the people must be capable of deliberating and
choosing on the basis of knowledge, that they must have access to
authentic information, and that, on this basis, their evaluation must be the
result of autonomous thought."278 He submits that "[d]ifferent opinions and
philosophies can no longer compete peacefully for adherence and
persuasion on rational grounds: the marketplace of ideas is organized and
delimited by those who determine the national and the individual
interest."279 A slant toward left manifests from his belief that "there is a
natural right of resistance for oppressed and overpowered minorities to
use extralegal means if the legal ones have proved to be
inadequate."280 Marcuse, thus, stands for an equality that breaks away and
transcends from established hierarchies, power structures, and
indoctrinations. The tolerance of libertarian society he refers to as
"repressive tolerance."

Legal scholars
The 20th century also bears witness to strong support from legal scholars
for "stringent protections of expressive liberty," 281 especially by political
egalitarians. Considerations such as "expressive, deliberative, and
informational interests,"282 costs or the price of expression, and background
facts, when taken together, produce bases for a system of stringent
protections for expressive liberties.283
Many legal scholars discuss the interest and value of expressive liberties.
Justice Brandeis proposed that "public discussion is a political duty." 284 Cass
Sustein placed political speech on the upper tier of his twotier model for
freedom of expression, thus, warranting stringent protection. 285 He defined
political speech as "both intended and received as a contribution to public
deliberation about some issue."286
But this is usually related also tofair access to opportunities for such
liberties.287 Fair access to opportunity is suggested to mean substantive
equality and not mere formal equalitysince "favorable conditions for
realizing the expressive interest will include some assurance of the
resources required for expression and some guarantee that efforts to
express views on matters of common concern will not be drowned out by
the speech of betterendowed citizens." 288 Justice Brandeis solution is to
"remedy the harms of speech with more speech." 289This view moves away
from playing down the danger as merely exaggerated, toward "tak[ing] the
costs seriously and embrac[ing] expression as the preferred strategy for
addressing them."290 However, in some cases, the idea of more speech
may not be enough. Professor Laurence Tribe observed the need for
context and "the specification of substantive values before [equality] has
full meaning."291 Professor Catherine A. MacKinnon adds that "equality
continues to be viewed in a formal rather than a substantive
sense."292 Thus, more speech can only mean more speech from the few
who are dominant rather than those who are not.

Section 4. The Commission may, during the election period, supervise or

regulate the enjoyment or utilization of all franchises or permits for the
operation of transportation and other public utilities, media of
communication or information, all grants, special privileges, or concessions
granted by the Government or any subdivision, agency, or instrumentality
thereof, including any government-owned or controlled corporation or its
subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable,
equal rates therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly, honest,
peaceful, and credible elections. (Emphasis supplied)
Article XIII, Section 1
Section 1. The Congress shall give highest priorityto the enactment of
measures that protect and enhance the right of all the people to human
dignity, reducesocial, economic, and political inequalities, and remove
cultural inequities by equitably diffusing wealth and political power for the
common good.
To this end, the State shall regulate the acquisition, ownership, use, and
disposition of property and its increments. (Emphasis supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access to opportunities for
public service, and prohibit political dynasties as may be defined by law.
(Emphasis supplied)
Thus, in these cases, we have acknowledged the Constitutions guarantee
for more substantive expressive freedoms that take equality of
opportunities into consideration during elections.

Our jurisprudence

The other view

This court has tackled these issues.

However, there is also the other view. This is that considerations of

equality of opportunity or equality inthe ability of citizens as speakers
should not have a bearing in free speech doctrine. Under this view,
"members of the public are trusted to make their own individual
evaluations of speech, and government is forbidden to intervene for
paternalistic or redistributive reasons . . . [thus,] ideas are best left to a
freely competitive ideological market."297 This is consistent with the
libertarian suspicion on the use of viewpoint as well as content to evaluate
the constitutional validity or invalidity of speech.

Osmea v. COMELEC affirmed National Press Club v. COMELEC on the

validity of Section 11(b) ofthe Electoral Reforms Law of 1987. 293 This
section "prohibits mass media from selling or giving free of charge print
space or air time for campaign or other political purposes, except to the
Commission on Elections."294 This court explained that this provision only
regulates the time and manner of advertising in order to ensure media
equality among candidates. 295 This court grounded this measure on
constitutional provisions mandating political equality: 296 Article IX-C,
Section 4

The textual basis of this view is that the constitutional provision uses
negative rather than affirmative language. It uses speech as its subject
and not speakers.298 Consequently, the Constitution protects free speech

per se, indifferent to the types, status, or associations of its

speakers.299 Pursuant to this, "government must leave speakers and
listeners in the private order to their own devices in sorting out the relative
influence of speech."300

Another flaw is how "[a]ny quantitative limitation on political campaigning

inherently constricts the sum of public information and runs counter to our
profound national commitment that debate on public issues should be
uninhibited, robust, and wide-open."308

Justice Romeros dissenting opinion in Osmea v. COMELEC formulates this

view that freedom of speech includes "not only the right to express ones
views, but also other cognate rights relevant to the free communication
[of] ideas, not excluding the right to be informed on matters of public
concern."301 She adds:

In fact, "[c]onstraining those who have funds or have been able to raise
funds does not ease the plight of those without funds in the first place . . .
[and] even if ones main concern isslowing the increase in political costs, it
may be more effective torely on market forces toachieve that result than
on active legal intervention."309 According to Herbert Alexander, "[t]o
oppose limitations is not necessarily to argue that the skys the limit
[because in] any campaign there are saturation levels and a point where
spending no longer pays off in votes per dollar." 310

And since so many imponderables may affect the outcome of elections

qualifications of voters and candidates, education, means of
transportation, health, public discussion, private animosities, the weather,
the threshold of a voters resistance to pressure the utmost ventilation
of opinion of men and issues, through assembly, association and
organizations, both by the candidate and the voter, becomes a sine qua
non for elections to truly reflect the will of the electorate. 302 (Emphasis
supplied)
Justice Romeros dissenting opinion cited an American case, if only to
emphasize free speech primacy such that"courts, as a rule are wary to
impose greater restrictions as to any attempt to curtail speeches with
political content,"303 thus:
the concept that the government may restrict the speech of some
elements in our society in order to enhance the relative voice of the others
is wholly foreign to the First Amendment which was designed to "secure
the widest possible dissemination of information from diverse and
antagonistic sources" and "to assure unfettered interchange of ideas for
the bringing about of political and social changes desired by the people."304
This echoes Justice Oliver Wendell Holmes submission "that the market
place of ideas is still the best alternative to censorship."305
Parenthetically and just to provide the whole detail of the argument, the
majority of the US Supreme Court in the campaign expenditures case of
Buckley v. Valeo "condemned restrictions (even if content-neutral) on
expressive liberty imposed in the name of enhanc[ing] the relative voice
of others and thereby equaliz[ing] access to the political arena." 306 The
majority did not use the equality-based paradigm.
One flaw of campaign expenditurelimits is that "any limit placed on the
amount which a person can speak, which takes out of his exclusive
judgment the decision of when enough is enough, deprives him of his free
speech."307

III. C.
When private speech amounts
to election paraphernalia
The scope of the guarantee of free expression takes into consideration the
constitutional respect for human potentiality and the effect of speech. It
valorizes the ability of human beings to express and their necessity to
relate. On the other hand, a complete guarantee must also take into
consideration the effects it will have in a deliberative democracy. Skewed
distribution of resources as well as the cultural hegemony of the majority
may have the effect of drowning out the speech and the messages of those
in the minority. In a sense, social inequality does have its effect on the
exercise and effect of the guarantee of free speech. Those who have more
will have better access to media that reaches a wider audience than those
who have less. Those who espouse the more popular ideas will have better
reception than the subversive and the dissenters of society.To be really
heard and understood, the marginalized view normally undergoes its own
degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker and
the content of his or her expression. This view, thus, restricts laws or
regulation that allows public officials to make judgments of the value of
such viewpoint or message content. This should still be the principal
approach.
However, the requirements of the Constitution regarding equality in
opportunity must provide limits to some expression during electoral
campaigns.
Thus clearly, regulation of speech in the context of electoral campaigns
made by candidates or the members of their political parties or their
political parties may be regulated as to time, place, and manner. This is the

effect of our rulings in Osmea v. COMELEC and National Press Club v.

COMELEC.
Regulation of speech in the context of electoral campaigns made by
persons who are not candidates or who do not speak as members of a
political party which are, taken as a whole, principally advocacies of a
social issue that the public must consider during elections is
unconstitutional. Such regulation is inconsistent with the guarantee of
according the fullest possible range of opinions coming from the electorate
including those that can catalyze candid, uninhibited, and robust debate in
the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by a private
citizen which will not amount toan election paraphernalia to be validly
regulated by law.
Regulation of election paraphernalia will still be constitutionally valid if it
reaches into speech of persons who are not candidates or who do not
speak as members of a political party if they are not candidates, only if
what is regulated is declarative speech that, taken as a whole, has for its
principal object the endorsement of a candidate only. The regulation (a)
should be provided by law, (b) reasonable, (c) narrowly tailored to meet the
objective of enhancing the opportunity of all candidates to be heard and
considering the primacy of the guarantee of free expression, and (d)
demonstrably the least restrictive means to achieve that object. The
regulation must only be with respect to the time, place, and manner of the
rendition of the message. In no situation may the speech be prohibited or
censored onthe basis of its content. For this purpose, it will notmatter
whether the speech is made with or on private property.
This is not the situation, however, in this case for two reasons. First, as
discussed, the principal message in the twin tarpaulins of petitioners
consists of a social advocacy.
Second, as pointed out in the concurring opinion of Justice Antonio Carpio,
the present law Section 3.3 of Republic Act No. 9006 and Section 6(c) of
COMELEC Resolution No. 9615 if applied to this case, will not pass the
test of reasonability. A fixed size for election posters or tarpaulins without
any relation to the distance from the intended average audience will be
arbitrary. At certain distances, posters measuring 2 by 3 feet could no
longer be read by the general public and, hence, would render speech
meaningless. It will amount to the abridgement of speech with political
consequences.
IV
Right to property

Other than the right to freedom of expression311 and the meaningful

exercise of the right to suffrage, 312 the present case also involves ones
right to property.313
Respondents argue that it is the right of the state to prevent the
circumvention of regulations relating to election propaganda by applying
such regulations to private individuals. 314 Certainly, any provision or
regulation can be circumvented. But we are not confronted with this
possibility. Respondents agree that the tarpaulin in question belongs to
petitioners. Respondents have also agreed, during the oral arguments, that
petitioners were neither commissioned nor paid by any candidate or
political party to post the material on their walls.
Even though the tarpaulin is readily seen by the public, the tarpaulin
remains the private property of petitioners. Their right to use their property
is likewise protected by the Constitution.
In Philippine Communications Satellite Corporation v. Alcuaz: 315
Any regulation, therefore, which operates as an effective confiscation of
private property or constitutes an arbitrary or unreasonable infringement
of property rights is void, because it is repugnant to the constitutional
guaranties of due process and equal protection of the laws. 316 (Citation
omitted)
This court in Adiong held that a restriction that regulates where decals and
stickers should be posted is "so broad that it encompasses even the
citizens private property."317 Consequently, it violates Article III, Section 1
of the Constitution which provides thatno person shall be deprived of his
property without due process of law. This court explained:
Property is more than the mere thing which a person owns, it includes the
right to acquire, use, and dispose of it; and the Constitution, in the 14th
Amendment, protects these essential attributes.
Property is more than the mere thing which a person owns. It is elementary
that it includes the right to acquire, use, and dispose of it. The Constitution
protects these essential attributes of property. Holden v. Hardy, 169 U.S.
366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the
free use, enjoyment, and disposal of a persons acquisitions without control
or diminution save by the law of the land. 1 Cooleys Bl. Com. 127.
(Buchanan v. Warley 245 US 60 [1917])318
This court ruled that the regulation in Adiong violates private property
rights:
The right to property may be subject to a greater degree of regulation but
when this right is joined by a "liberty" interest, the burden of justification

on the part of the Government must be exceptionally convincing and

irrefutable. The burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it
prohibits the posting or display of election propaganda in any place,
whether public or private, except inthe common poster areas sanctioned
by COMELEC. This means that a private person cannot post his own
crudely prepared personal poster on his own front dooror on a post in his
yard. While the COMELEC will certainly never require the absurd, there are
no limits to what overzealous and partisan police officers, armed with a
copy of the statute or regulation, may do. 319 Respondents ordered
petitioners, who are private citizens, to remove the tarpaulin from their
own property. The absurdity of the situation is in itself an indication of the
unconstitutionality of COMELECs interpretation of its powers.
Freedom of expression can be intimately related with the right to property.
There may be no expression when there is no place where the expression
may be made. COMELECs infringement upon petitioners property rights
as in the present case also reaches out to infringement on their
fundamental right to speech.
Respondents have not demonstrated thatthe present state interest they
seek to promote justifies the intrusion into petitioners property rights.
Election laws and regulations must be reasonable. It must also
acknowledge a private individuals right to exercise property rights.
Otherwise, the due process clause will be violated.
COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent
the posting of election propaganda in private property without the consent
of the owners of such private property. COMELEC has incorrectly
implemented these regulations. Consistent with our ruling in Adiong, we
find that the act of respondents in seeking to restrain petitioners from
posting the tarpaulin in their own private property is an impermissible
encroachments on the right to property.
V
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether the COMELEC in
issuing the questioned notice and letter violated the right of petitioners to
the free exercise of their religion.
At the outset, the Constitution mandates the separation of church and
state.320 This takes many forms. Article III, Section 5 of the Constitution, for
instance provides:
Section 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of

religious profession and worship, without discrimination or preference, shall

forever be allowed. Noreligious test shall be required for the exercise of
civil or political rights.
There are two aspects of this provision. 321 The first is the none stablishment
clause.322 Second is the free exercise and enjoyment of religious profession
and worship.323
The second aspect is atissue in this case.
Clearly, not all acts done by those who are priests, bishops, ustadz, imams,
or any other religious make such act immune from any secular
regulation.324 The religious also have a secular existence. They exist within
a society that is regulated by law.
The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts
of a bishop amounts to religious expression. This notwithstanding
petitioners claim that "the views and position of the petitioners, the Bishop
and the Diocese of Bacolod, on the RH Bill is inextricably connected to its
Catholic dogma, faith, and moral teachings. . . ."325
The difficulty that often presents itself in these cases stems from the
reality that every act can be motivated by moral, ethical, and religious
considerations. In terms of their effect on the corporeal world, these acts
range from belief, to expressions of these faiths, to religious ceremonies,
and then to acts of a secular character that may, from the point of view of
others who do not share the same faith or may not subscribe to any
religion, may not have any religious bearing.
Definitely, the characterizations ofthe religious of their acts are not
conclusive on this court. Certainly, our powers of adjudication cannot be
blinded by bare claims that acts are religious in nature.
Petitioners erroneously relied on the case of Ebralinag v. The Division
Superintendent of Schools of Cebu326 in claiming that the court
"emphatically" held that the adherents ofa particular religion shall be the
ones to determine whether a particular matter shall be considered
ecclesiastical in nature.327 This court in Ebralinagexempted Jehovahs
Witnesses from participating in the flag ceremony "out of respect for their
religious beliefs, [no matter how] "bizarre" those beliefsmay seem to
others."328 This court found a balance between the assertion of a religious
practice and the compelling necessities of a secular command. It was an
early attempt at accommodation of religious beliefs.
In Estrada v. Escritor,329 this court adopted a policy of benevolent
neutrality:

With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion specifically
intoaccount not to promote the governments favored form of religion, but
to allow individuals and groups to exercise their religion without hindrance.
Their purpose or effect therefore is to remove a burden on, or facilitate the
exercise of, a persons or institutions religion. As Justice Brennan
explained, the "government [may] take religion into account . . . to exempt,
when possible, from generally applicable governmental regulation
individuals whose religious beliefs and practices would otherwise thereby
be infringed, or to create without state involvement an atmosphere in
which voluntary religious exercise may flourish."330

COMELECs general role includes a mandate to ensure equal opportunities

and reduce spending among candidates and their registered political
parties. It is not to regulate or limit the speech of the electorate as it
strives to participate inthe electoral exercise.

This court also discussed the Lemon test in that case, such that a
regulation is constitutional when: (1) it has a secular legislative purpose;
(2) it neither advances nor inhibits religion; and (3) it does not foster an
excessive entanglement with religion.331

But this caricature, though not agreeable to some, is still protected speech.

As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not
convey any religious doctrine of the Catholic church." 332 That the position
of the Catholic church appears to coincide with the message of the
tarpaulin regarding the RH Law does not, by itself, bring the expression
within the ambit of religious speech. On the contrary, the tarpaulin clearly
refers to candidates classified under "Team Patay" and "Team Buhay"
according to their respective votes on the RH Law.
The same may be said of petitioners reliance on papal encyclicals to
support their claim that the expression onthe tarpaulin is an ecclesiastical
matter. With all due respect to the Catholic faithful, the church doctrines
relied upon by petitioners are not binding upon this court. The position of
the Catholic religion in the Philippines as regards the RH Law does not
suffice to qualify the posting by one of its members of a tarpaulin as
religious speech solely on such basis. The enumeration of candidates on
the face of the tarpaulin precludes any doubtas to its nature as speech
with political consequences and not religious speech.
Furthermore, the definition of an "ecclesiastical affair" in Austria v. National
Labor Relations Commission333 cited by petitioners finds no application in
the present case. The posting of the tarpaulin does not fall within the
category of matters that are beyond the jurisdiction of civil courts as
enumerated in the Austriacase such as "proceedings for excommunication,
ordinations of religious ministers, administration of sacraments and other
activities withattached religious significance." 334

The tarpaulin in question may be viewed as producing a caricature of those

who are running for public office.Their message may be construed
generalizations of very complex individuals and party-list organizations.
They are classified into black and white: as belonging to "Team Patay" or
"Team Buhay."

That petitioners chose to categorize them as purveyors of death or of life

on the basis of a single issue and a complex piece of legislation at that
can easily be interpreted as anattempt to stereo type the candidates
and party-list organizations. Not all may agree to the way their thoughts
were expressed, as in fact there are other Catholic dioceses that chose not
to follow the example of petitioners.
Some may have thought that there should be more room to consider being
more broad-minded and non-judgmental. Some may have expected that
the authors would give more space to practice forgiveness and humility.
But, the Bill of Rights enumerated in our Constitution is an enumeration of
our fundamental liberties. It is not a detailed code that prescribes good
conduct. It provides space for all to be guided by their conscience, not only
in the act that they do to others but also in judgment of the acts of others.
Freedom for the thought we can disagree with can be wielded not only by
those in the minority. This can often be expressed by dominant institutions,
even religious ones. That they made their point dramatically and in a large
way does not necessarily mean that their statements are true, or that they
have basis, or that they have been expressed in good taste.
Embedded in the tarpaulin, however, are opinions expressed by
petitioners. It is a specie of expression protected by our fundamental law. It
is an expression designed to invite attention, cause debate, and hopefully,
persuade. It may be motivated by the interpretation of petitioners of their
ecclesiastical duty, but their parishioners actions will have very real
secular consequences. Certainly, provocative messages do matter for the
elections.

A FINAL NOTE
We maintain sympathies for the COMELEC in attempting to do what it
thought was its duty in this case. However, it was misdirected.

What is involved in this case is the most sacred of speech forms:

expression by the electorate that tends to rouse the public to debate
contemporary issues. This is not speechby candidates or political parties to
entice votes. It is a portion of the electorate telling candidates the

conditions for their election. It is the substantive content of the right to

suffrage.
This. is a form of speech hopeful of a quality of democracy that we should
all deserve. It is protected as a fundamental and primordial right by our
Constitution. The expression in the medium chosen by petitioners deserves
our protection.
WHEREFORE, the instant petition is GRANTED. The temporary restraining
order previously issued is hereby made permanent. The act of the
COMELEC in issuing the assailed notice dated February 22, 2013 and letter
dated February 27, 2013 is declared unconstitutional.
SO ORDERED.

G.R. Nos. 95347-49 January 6, 1992

SALACNIB
F.
BATERINA,
CANDIDO
BALBIN,
GUILLERMO
BALLESTEROS,
NATHANIEL
ESCOBAR,
BENJAMIN
GALAPIA,
LEONARDO ROLDAN, FILEMON SISON, ERWIN REYES-ULEP, EVELYN
VALDEZ,
OCTAVIO
VILLANUEVA,
COALITION
FOR
GOOD
GOVERNMENT OF ILOCOS SUR, AND LAKAS NG BANSA, petitioners,
vs.
COMMISSION ON ELECTIONS, EVARISTO "TITONG" SINGSON,
CARIDAD ALCANTARA, MARIANO TAJON, WINSTON AGUIRRE,
HEREDIO BELLO, BENJAMIN BUGARIN, TERESITA CORDERO, JOSE
DIVINA, RODOLFO GALIMA, DEOGRACIAS VICTOR SAVELLANO,
VICTOR VILORIA and AND THE PROVINCIAL BOARD CANVASSERS OF
ILOCOS SUR, respondents.
Diosdado P. Peralta for petitioners.

The canvassing of the election returns commenced as the ballot boxes

containing the returns from the various municipalities of Ilocos Sur were
received by the BOARD.
In the course of the canvass proceedings, verbal objections were raised by
petitioners to certain election returns based on the grounds mentioned in
Sections 233 (lost or destroyed election returns), 234 (material defects in
the election returns), 235 (tampered or falsified election returns) and 236
(discrepancies in election returns), in relation to the preparation,
transmission, receipt and custody of the election returns. The objections
were aimed at excluding the election returns from the canvass.
Petitioners submitted to the BOARD their objections in written form within
twenty four (24) hours from the time the verbal objections were made as
required in Section 245 of the Omnibus Election Code. They also submitted
written protests before the BOARD, which reiterated their objections to
certain election retunns.

Bonifacio A. Alentajan for private respondents.

MELENCIO-HERRERA, J.:
Petitioners assail the en banc Resolution of the Commission on Elections
(COMELEC), dated 6 September 1990, affirming the Resolution, dated 23
March 1988, and Decision dated 5 June 1989, rendered by its First and
Second Divisions, respectively. The aforesaid Resolutions and Decision
ruled adversely against petitioners in the pre-proclamation cases initiated
by them before the COMELEC.
Petitioner Salacnib F. Baterina was a candidate for Governor of Ilocos Sur in
the special local elections held on 25 January 1988. The other petitioners,
Octavio Villanueva and Evelyn Valdez, Felimon Sison, Leonardo Roldan, Gil
Ballesteros, Benjamin Galapia, Erwin Reyes-Ulep, and Nathaniel Escobar,
were candidates for Vice Governor and Provincial Board Members,
respectively, in the same local elections. Petitioners ran under the banner
of the Lakas ng Bansa. Private respondent Evaristo Singson, on the other
hand, was also a candidate for Governor of Ilocos Sur. Private respondent
Mariano Tajon was a candidate for Vice Governor. The rest of the private
respondents were candidates for the other disputed positions.
The Provincial Board of Canvassers of Ilocos Sur (BOARD) has likewise been
impleaded in this petition.

The BOARD, in several Resolutions dated 29, 30 and 31 January 1988,

denied the objections and protests of petitioners mainly on the ground that
the alleged defects of the election returns were merely formal and did not
affect their authenticy, validity and genuineness as to warrant their
exclusion from the canvass. Petitioners filed with the BOARD notices of
appeal from its rulings.
On 30 January 1988, petitioners filed with the COMELEC a "Petition
Contesting the Legality of the Proceedings of the Board of Canvassers with
Motion to Restrain Canvassing and Proclamation and/or Suspend the
Effects of any Proclamation," docketed as SPC No. 88-453 and assigned to
the First Division (Suspension of Proclamation Case). The Petition sought
the suspension of the canvassing and proclamation of any winning
candidate.
On 31 January 1988 the BOARD issued the "Certification of Canvass of
Votes and Proclamation of the Winning Candidates for Provincial Offices,
January 18, 1988 Elections," proclaiming respondents Evaristo C. Singson
as the duly elected Governor of Ilocos Sur, Mariano M. Tajon as Vice
Governor and the others as Members of the Sangguniang Panlalawigan of
the province.
On 1 February 1988, petitioners filed with the COMELEC an "Appeal,"
docketed as SPC No. 88-490 and assigned to the Second Division, wherein
petitioners prayed that the Resolutions of the BOARD denying their

protests be set aside. On the same date, petitioners also filed an "Appeal
Memorandum," docketed as SPC No. 88-506, which was assigned likewise
to the Second Division. The "Appeal Memorandum" was an appeal from the
rulings of the BOARD denying petitioners' written objections to the
inclusion in the canvass of certain election returns. Petitioners prayed for
their exclusion from the canvass. An "Addendum to Appeal Memorandum"
was filed by petitioners on 8 February 1985 appealing the other rulings of
the BOARD denying their objections.
On 9 February l988, petitioners followed up their Petition on the
Suspension of Proclamation Case (SPC No. 88-453) and sought the
suspension of the effects of the proclamation of private respondents as
well as the annulment of the proclamation, or in the alternative, the
declaration of a failure of elections in Ilocos Sur.
On 23 March 1985, the First Division of the COMELEC issued a Minute
Resolution dismissing the Suspension of Proclamation Case (SPC No. 88453) filed on 30 January 1988, on the ground that the winning candidates
had already been proclaimed on "21 January 1988" (should be 31 January
1988). It advised the petitioners to file instead an election protest with the
COMELEC if desired (p. 104, Rollo).
Petitioners appealed the dismissal of the Petition alleging error in that the
proclamation was made on 31 January 1988, not 21 January, as stated in
the First Division Resolution. Petitioners also alleged that the First Division
failed to consider the other petition filed by them in the same SPC No. 88453, dated 9 February 1988, thereby effectively dismissing said petition
without notice and hearing in violation of Sections 242 and 246 of the
Omnibus Election Code.
On 5 June 1989, the Second Division of the COMELEC promulgated a
decision in SPC Nos. 88-490 and 88-506 (Rollo, p. 124) dismissing
petitioners' "Appeal" and "Appeal Memorandum" on the ground that no
substantial objection had been raised against the election returns in
accordance with Sections 233-236 and Section 245 of the Omnibus
Election Code.
On 10 June 1989, petitioners appealed the Decision of the Second Division
(in SPC Nos. 88-490 and 88-506) to the COMELEC en banc. On 6
September 1990, that body issued a per curiam Resolution, in SPC Nos. 88453, 58-490, and 88-506, dismissing petitioners' appeals from the rulings
rendered by its First and Second Divisions on the ground that no genuine
pre-proclamation controversies had been raised by petitioners.

That
dismissal
prompted
these Certiorari proceedings.

petitioners

to

avail

of

Can the COMELEC be faulted with grave abuse of discretion in upholding

the dismissal of the Suspension of Proclamation Case (SPC No. 88-453) and
of petittoners' "Appeals" (SPC Nos. 88-490 and 88-506) ordered by its First
and Second Divisions respectively?
The Court thinks not. The Suspension of Proclamation Case, filed on 30
January, 1988 (SPC No. 88-453), was dismissed by the First Division
considering "that the winning candidates have been proclaimed on January
21, 1988" (Rollo, p. 104). Petitioners claim that the petition was dismissed
because it appeared that the petition was filed after the proclamation of
private respondent on "21 January 1988, " as stated in the Resolution
(Rollo, p. 14), whereas the proclamation was actually made on 31 January
1988 or after they had filed, on 30 January 1988, their Suspension of
Proclamation Case (SPC No. 88-453).
Petitioners further contend that the proclamation made on 31 January 1988
is void ab initio because it was made by the BOARD without previous
authority from the COMELEC in violation of Section 245 of the Omnibus
Election Code, which provides:
xxx xxx xxx
The board of canvassers shall not proclaim any candidate
as winner unless authorized by the Commission after the
latter has ruled on the objections brought to it on appeal
by the losing party and any proclamation made in violation
hereof shall be void ab initio, unless the contested returns
will not adversely affect the results of the election.
Petitioners' aforesaid submissions lack substance. The date "21 January
1988" appearing in the Resolution of the COMELEC First Division is plainly a
typographical error. The correct date is 31 January 1988. But even if so, the
mere filing of the Suspension of Proclamation Case (SPC No. 88-453) on 30
January 1988 meeting to restrain the canvassing and proclamation of the
winning candidates does not automatically divest the BOARD of the
authority to make a proclamation. Neither does it ipso facto annul a
proclamation which may have been already made.
In this regard, petitioners' reliance on Section 245 to support their claim of
nullity of the proclamation made by the BOARD for lack of authorization

from the COMELEC is misplaced. That provision applies to a situation where

a party, aggrieved by the rulings of the Board of Canvassers rejecting the
objections to election returns raised by him, appeals the rulings to the
COMELEC. In which case, no proclamation can be made by the Board of
Canvassers without authorization of the COMELEC until after the latter has
ruled on the objections brought to it on appeal by the losing party.
In the case at bar, when the proclamation was made by the BOARD on 31
January 1988, there was no pending appeal filed by petitioners before the
COMELEC from the rulings made by the BOARD on their objections to
election returns rendered on 29, 30 and 31, 1988 (Annexes B to B-17,
Petition). The "Appeal" and "Appeal Memorandum," docketed as SPC Nos.
88-490 and 88-506, respectively, which appealed to the COMELEC the
rulings of the BOARD denying petitioners' objections to election returns
were filed by them only on 1 February 1988, after the proclamation of
private respondents had been made by the BOARD on 31 January 1988.
What was filed by petitioners on 30 January 1988, before the proclamation,
was a petition seeking merely to restrain the canvass and proclamation or
suspend the effects of any proclamation. This petition, however, is clearly
not the appeal referred to in Section 245 that will operate to bar the
BOARD from making any proclamation of the winning candidates without
authority from the COMELEC after the latter has ruled on the objections
elevated to it on appeal. Consequently, there was no legal impediment to
the proclamation of private respondents by the BOARD on 31 January
1988.
In dismissing the Suspension of Proclamation Case (SPC No. 88-453), the
First Division also disposed of the other petition filed in the same case by
petitioners on 9 February 1988, praying that the proclamation made by the
BOARD be declared null and void ab initio. As pointed out earlier, however,
the proclamation was validly done by the BOARD since this is not an
instance calling for the application of Section 245. Moreover, it is well
settled that after the proclamation of the winning candidates, a preproclamation controversy ceases and is no longer viable at this point and
should be dismissed, the proper remedy of the aggrieved party being an
election protest.
Notably, the proclamation was made after completion of the canvass of the
election returns by the BOARD, which has the legal obligation, after said
canvass, to proclaim the elected candidates, that duty being ministerial
after
the mechanical or mathematical act of counting the votes cast has been
accomplished (Casimiro v. Commission on Elections, L-84462-63, 29 March
1989, 171 SCRA 468). No grave abuse of discretion can be attributed to the

COMELEC, therefore, in dismissing the petitions in the Suspension of

Proclamation Case (SPC No. 8-453).
Petitioners also fault the COMELEC for dismissing the "Appeal" and "Appeal
Memorandum" filed by them in SPC Nos. 88-490 and 88-506, respectively,
on 1 February 1988 (or one [1] day after the proclamation). These
pleadings appealed the rulings of the BOARD denying their objections to
election returns. Petitioners anchored their objections to the election
returns on the ground that they were fraudulent. They aIlege that there
were five hundred fifty two (552) election returns coming from various
precincts of the province which did not contain the signatures of their
watchers. Petitioners claim that the absence of these signatures casts
doubts on the authenticity and integrity of the election returns. Thus,
petitioners point to instances where the tallies in the election returns were
not closed by thumbmarks and signatures; lack of or unauthorized
signatures in the envelopes; tampering of paper seals; erasures or
tampering of figures, numbers and letters; irregular receipt of ballot boxes
and other alleged irregularities in the preparation and delivery of election
returns (Rollo, pp. 19-20).
The objections were rejected by the BOARD in several Resolutions dated
29, 30 and 31 January 1988 (Rollo, pp. 57-71) because the grounds raised
for the exclusion of the election returns were merely formal defects that
did not affect the authenticity and genuineness of the election returns. On
appeal to the COMELEC, the rulings of the BOARD were sustained.
Again, the Court finds no grave abuse of discretion in the dismissal of the
Appeals (SPC Nos. 88-490 and 88-506). While petitioners assailed the
authenticity of the contested election returns, the records do not indicate
that they presented any proof before the BOARD to support their
allegations that the election returns were tampered with and fraudulent.
Neither was there any indication in the appeals filed by petitioners before
the COMELEC pointing to specific evidence that would reasonably support
their allegations that the election returns objected to were not authentic. It
is not enough that an election return is objected to. A mere allegation by a
party that an election return is spurious does not automatically operate to
exclude the same in the canvassing.
The grounds raised by petitioners for the exclusion of the election returns
from the canvassing, as stated in their "Appeal Memorandum" before the
COMELEC (Rollo, p. 92), refer to the failure to close the entries with the
signatures of the election inspectors; lack of inner and outer paper seals;
canvassing by the BOARD of copies not intended for it; lack of time and
date of receipt by the BOARD of election returns; lack of signatures of

petitioners' watchers; and lack of authority of the person receiving the

election returns.
While the aforesaid grounds may, indeed, involve a violation of the rules
governing the preparation and delivery of election returns for canvassing,
they do not necessarily affect the authenticity and genuineness of the
subject election returns as to warrant their exclusion from the canvassing.
The grounds for objection to the election returns made by petitioners are
clearly defects in form insufficient to support a conclusion that the election
returns were tampered with or spurious. "A conclusion that an election
return is obviously manufactured or false and consequently should be
disregarded in the canvass must be approached with extreme caution and
only upon the most convincing proof" (Estrada v. Navarro, L-28340, 29
December 1967, 21 SCRA 1514). It is only when the election returns are
palpably irregular that they may be rejected (Mutuc v. Commission on
Elections, L-28517, 21 February 1968, 22 SCRA 662). On the basis of formal
defects alone, such palpable irregularity can not be said to have been
established herein.
Petitioners, however, suggest that the lack of the signatures of their
watchers in the contested election returns render their authenticity
questionable. Such a lack, however, is not enough to impugn the
genuineness of the returns. Section 12 of Rep. Act No. 6646 (Electoral
Reforms Law of 1988) provides:
xxx xxx xxx
In addition to their rights and duties under Section 179 of
Batas Fambansa Blg. 881, the two principal watchers
representing the ruling coalition and the dominant
opposition coalition in a precinct, shall, if available, affix
their signature and thumbmarks on the election returns for
that precinct. If both or either of them is not available,
unwilling or should they refuse to do so, any watcher
present, preferably with political affiliation or alignment
compatible with that of the absent or unwilling
watcher, may be required by the board of election
inspectors to do so. (Emphasis supplied)
The foregoing provision negates the contention that an election return is
spurious owing to the failure of a watcher to affix his signature. Under this
provision, a watcher signs the election returns only if he is available. If he
is not, or is unwilling, or refuses to sign them, any other watcher present
may be required to sign. In this case, the signature of any watcher present

is not even a mandatory requirement as can be gleaned from the text of

the provision. In other words, while the signing of an election return by a
watcher is a measure intended to discourage the preparation of falsified
returns, the absence of said signature does not give rise to a presumption
that the election returns are manufactured or spurious and should
consequently be excluded in the canvass. Otherwise, a party's watcher can
easily cause the nullification of election returns reflecting results
unfavorable to the candidate he is representing by simply refusing to sign
the returns.
In fine, the BOARD correctly included the contested election returns in the
canvass as they did not suffer from any serious infirmities affecting their
integrity. It is the "ministerial function of a board of canvassers to count the
results as they appear in the returns which on their face does not reveal
any irregularities nor falsities" (Demafiles v. Commission on Elections, L28396, 29 December 1967, 21 SCRA 1462).
Petitioners also assail the dismissal of their petitions by the COMELEC
without hearing. Suffice it to cite the ruling in Ilarde v. Commission on
Elections, (L-31446, 23 January 1970, 31 SCRA 72) that "canvass
proceedings are administrative and summary in nature, and a strong prima
facie case backed up by a specific offer of the evidence and indication of
its nature and importance has to be made out to warrant the reception of
evidence aliunde and the presentation of witnesses and the delays
necessarily entailed thereby. Otherwise, the paralyzation of canvassing and
proclamation leading to a vacuum in an important office could easily be
brought about." In their case before us, the petitions and appeals filed by
petitioners in their pre-proclamation cases before the COMELEC did not
even point prima facie to a tampering of election returns, nor to returns
with patent erasures and superimpositions, but merely raised objections
based on defects that are, at best, formal in nature. The COMELEC,
therefore, did not gravely abuse its discretion in concluding that in the
absence of genuine pre-proclamation issues a full-blown hearing was
rendered unnecessary.
WHEREFORE, the writ of certiorari prayed for is DENIED for lack of merit.
SO ORDERED.

G.R. No. L-52749 March 31, 1981

5. Lucio P. Mendoza, Jr............................ 13,096

SOTERO OLFATO, MAURO V. BARADAS, CIRIACO L. PADILLA,

MANUEL S. GONZALES, CECILIO F. HERNANDEZ LUCIO P. MENDOZA,
JR.,
BENEDICTO
C.
MAGSINO,
and
BIENVENIDO
P.
TRINIDAD,petitioners,
vs.
COMMISSION ON ELECTIONS and FRANCISCO E. LIRIO, respondents.

6. Benedicto C. Magsino.......................... 12,786

7. Bienvenido P. Trinidad......................... 12,521
* 8. Melquiades F. Salisi.............................. 12,111
9. Leonor L. Infante .................................. 11,389
10. Roman L. Tenorio.................................. 10,807

MAKASIAR, J.:
Petition for review on certiorari and prohibition with prayer for the issuance
of preliminary prohibitory injunction and temporary restraining order.
In the local elections held last January 30, 1980, petitioner Sotero Olfato
was the official candidate of the Nacionalista Party (NP) for Mayor of
Tanauan, Batangas. The other petitioners were the official NP candidates
for Members, Sangguniang Bayan, in the same municipality. Respondent
Francisco E. Lirio, on the other hand, was the official candidate of the
Kilusang Bagong Lipunan (KBL) for mayor of said town.
In the canvass of votes cast in Tanauan, Batangas by the Tanauan
Municipal Board of Canvassers, petitioner Olfato and respondent Lirio
obtained the following votes:
Sotero Olfato..................................... 15,293
Francisco E. Lirio.............................. 13,714
The other petitioners obtained the plurality of the votes cast for Members,
Sangguniang Bayan over their rival KBL candidates, to wit:
1. Mauro W. Baradas........................... 16,746
2. Ciriaco L. Padilla.................................... 13,637
3. Manuel S. Gonzales.............................. 13,540
4. Cecilio F. Hernandez............................. 13,171

11. Francisco S. Panghulan........................ 10,471

12. Francisco P. Laurel................................ 10,057
13. Isidro C. Vena ........................................ 9,409
14. Tomas M. Magsino............................... 9,229
15. Ricardo C. Carandang............................ 8,940
16. Rosendo C. Encarnacion...................... 8,606
(Certificate of Canvass and Proclamation, pp. 21-22, rec.).
On the basis of the results of its canvass of votes, the Municipal Board of
Canvassers of Tanauan, Batangas, proclaimed on February 5, 1980
petitioner Olfato and the rest of the petitioners as the duly elected Mayor
and Members of the Sangguniang Bayan, respectively.
On February 6, 1980, petitioners took their oaths of office as Mayor and as
Members, Sangguniang Bayan of Tanauan, Batangas, before Notary Public
Roberto P. Laurel.
Earlier, on February 2, 1980 or three (3) days before petitioners were
proclaimed, respondent Lirio, together with the candidates on his ticket for
Vice Mayor and Members of the Sangguniang Bayan of Tanauan, Batangas,
filed with respondent Commission on Elections (COMELEC) a petition for
suspension of canvass and of proclamation of "Winning candidates" for the
elective
positions
of
Tanauan,
which
was
docketed
as Pre-

proclamation Case No. 118, entitled Francisco E. Lirio, et al. vs. The
Municipal Board of Canvassers, et al." (pp. 23-30, rec.).
Invoking Section 2, paragraphs 1, 2 and 8, of Article XII (C) of the
Constitution and Section 175 of the 1978 Election Code as well as the
ruling of this Court in the case of Aratuc, et al. vs. COMELEC, et al. (G.R.
Nos. 49705-09, February 8, 1979, 88 SCRA 251) respondent Lirio and the
members of his KBL ticket vigorously pressed for the suspension of
canvass and the proclamation of the aforesaid, "winning candidates" for
the position of Mayor, Vice Mayor and Members of the Sangguniang Bayan
of Tanauan, Batangas.

xxx xxx xxx

Any registered voter whose name has been omitted in the
list of voters of the voting center shall be allowed upon
presentation of his certificate of registration or upon
showing through his registration record or any document
that he is a registered voter, or if he is Identified under
oath by any member of the committee or by any
watcher, or upon order of a court directing the committee
to allow him to vote.'
---- Sec- 13, par. 2, COMELEC

To justify their petition for the suspension of the canvass and of

proclamation, they alleged as grounds the following:

Resolution No. 1410.

1) Disenfranchisement of voters who were not allowed to

vote although their names were in the official list of voters;

Underlining supplied

2) Terrorism of voters;

(b) The instruction, a xerox copy of which is attached

hereto and made a part hereof as Exh. A, reads:

3) Voters with fake Id's who were not in the voters' list were
allowed to vote without being certified by the
corresponding election committee; and

OFFICE OF THE ELECTION REGISTRAR

4) Flying voters.

TO ALL ELECTION COMMITTEE:

Thus, in said petition, Lirio alleged that around 3,000 fake voters using
forms allegedly misinterpreting paragraph 2 of Section 13 of Resolution No.
1410 of the COMELEC (General Instructions for the Citizens Election
Committee, Exh, "B" thereof) and allegedly mimeographed by the NP
headquarters in Batangas, were able to cast their votes. Hence, Lirio
averred in said petition the following:
In the particular case of Tanauan, the following novel,
sophisticated but effective way of cheating occurred;
(a) Upon representation of a certain Atty. Trinidad of the Laurel Law Offices,
the election registrar in Tanauan by the name of Atty. Quirino Opena,
issued a circular misinterpreting par. 2 of Sec- tion 13 of Resolution No.
1410 of the COMELEC, General In- constructions for the Citizens Election
Committee, which reads;
SEC. 13. Who may vote.

Tanauan, Batangas

Any voter whose name cannot be found in

the master list may be allowed to vote
provided:
a. He swears under oath that he was a voter and duly
Identified.
Any member of the Committee may swear the voter.
Their names will be in a separate list.
(Sgd) Quirino Opena
QUIRINO OPENA
Registrar

January 30, 1980.

(c) This is an erroneous instruction because par. 2 refers to
a registered voter whose name is in the master list or book
of voters but omitted in the list of voters in the voting
center. And the oath must be not by the person who claims
to be a voter but by 'any member of the committee or by
any watchers.'
(d) Taking advantage of this instruction, the headquarters
of the NP in Batangas mimeographed forms, a xerox copy
of which is hereto attached and made a part hereof as Exh.
B, and which reads:
COMMISSION ON ELECTIONS
OFFICE OF THE ELECTION REGISTRAR
Tanauan, Batangas
Res 1410 Sec. 13
---If he is identified under
oath by any member of the
committee --AKO, si _________________ay Sumusumpa na ako dating
botante sa Barangay ___________.
SAKSI:
_____________________
Member-Committee
of watcher
____________

Lagda

Diit na k
SINUMPAAN SA HARAPAN KO NGAYONG IKA 30 Ng Enero,
1980.

_________
____

Chairma
Committ
e) Then the leaders of the NP in Tanauan brought
truckloads of electors from voting center to another voting
center, and have them filled up forms like Exh. B hereof,
and the election committees wittingly or unwittingly
allowed the persons who claimed to be voters to vote (pp.
25-27, rec.),
Consequently, respondent urged for the suspension of the canvass of
election returns prior to the identification and the segregation of the
alleged fake ballots from the genuine ballots.
Lirio further alleged that the number of voters affected by all the aforesaid
irregularities is estimated to be not less than 10,000 votes which therefore
will materially affect the results of the votes for the positions of Mayor, Vice
Mayor and Councilors of Tanauan.
Hence, Lirio prayed inter alia that an order be issued for the suspension of
the canvass of the votes and the proclamation of "winning candidates" for
the positions of Mayor, Vice Mayor and Councilors of Tanauan, Batangas;
that respondent therein, particularly private respondent Olfato, et al., be
required to answer said petition and that after hearing, a new election be
held for Tanauan allowing particularly the electors who were illegally
disenfranchised, to vote.
On February 9, 1980, respondent Lirio filed with respondent Commission a
supplementary petition which averred, among others "... that these
election
irregularities involving
fake
voters and massive
disenfranchisement(sufficient in number to affect the results of the
election, as in this case), are proper grounds for a pre-proclamation
controversy (although they may also be grounds for a protest), because

they affect the very integrity of the election return; in other words, the
election returned insofar as these fake voters and disenfranchised electors
are concerned, do not speak the truth; to say the least, they
are incomplete expression of the people's will through the ballots. We
understand that this is the first time that this question is being raised; and
we hope that this Honorable Commission will sustain our contention in
order to prevent the 'grabbing' of proclamation as in this case, and to make
the sovereign will of the people triumph" (pp. 5-6, Supplementary Petition,
pp. 34-35, rec.).
Noteworthy at this point is the allegation of Lirio in said supplementary
petition mentioned in a letter they had addressed to the Minister of Justice,
Ricardo Puno, dated February 8, 1980 (Annex "A", Supplementary Petition,
p. 33, rec.), that the aforesaid fake voters have been quanlified to be 2,776
persons in 68 out of the 102 voting centers of Tanauan. Thus, the pertinent
paragraph of their letter to Minister Puno on the matter reads:
We have identified a total of 2,776 persons who were thus
allowed to vote but whose names do not appear in the
masters registration list of voters, with the help of three
lawyers. This number is only partial since it covers only 68
out of 102 voting centers of Tanauan. The lists of these
persons are attached hereto with their respective voting
centers and marked as Annexes "D", "D-1" to "D-67".
Hence, respondent Lirio prayed for the annulment of the proclamation of
herein petitioners and further prayed that the matters raised in the petition
for suspension of canvass and of proclamation filed on February 2, 1980,
reiterated in said supplementary petition be set for hearing after
respondents of said petition, Municipal Board of Canvassers and Sotero
Olfato have filed their answers (Supplementary Petition, pp. 31-36, rec.).
In a related development, on the same date February 9, 1980, J. Antonio
Leviste, KBL gubernatorial candidate filed with respondent COMELEC a
petition to suspend proclama tion of NP gubernatorial candidate Jose C.
Laurel V on the following grounds, namely:

4) Substitute voters;
5) Massive disenfranchisement; and
6) Falsification of election returns particularly in the towns
of Lobo and Tuy
J. Antonio Leviste in said petition prayed, among others, for a joint hearing
with the petition for annulment of proclamation filed by respondent Lirio
against herein petitioners. Thus:
In the present one, we are incorporating by reference the
tion for annulment of proclamation just filed before this
honorable Commission by Mayor Francisco E. Lirio of
Tanauan, Batangas against the Municipal Board of
Canvassers of said town and the NP official candidate for
Mayor, Sotero Olfato.We respectfully suggest a joint
hearing of these two petitions (pp. 41-45, rec., emphasis
supplied).
On February 13, 1980, respondent Commission issued Minute Resolution
No. 9092 in P. P. Case No. 118, suspending the effects of the proclamation
of herein petitioners as duly elected Mayor and Members, Sangguniang
Bayan of Tanauan, Batangas, and requiring the therein respondents
(petitioners herein) to file their answer to the aforementioned
supplementary petition of herein respondent Lirio and the other KBL
candidates, within five (5) days of said resolution (p. 20, rec.).
On February 15, 1980, respondent Lirio filed with the Court of First Instance
of Batangas an election protest ex abundante ad cautela against petitioner
Olfato on the following grounds, namely:
a) Fake voters;
b) Electors with fake Identification cards;

1) Fake voters;

c) Flying voters;

2) Electors with fake Identification cards;

d) Substitute voters;

3) Flying voters;

e) Massive disenfranchisement;
f) Vote-buying;

g) Terrorism of voters;
h) Ballots prepared by one or more hands;
i) Marked ballots; and
j ) Erroneous appreciation of ballots (pp. 106-110, rec.).
On February 16, 1980, respondent Commission promulgated Minute
Resolution No. 9119 denying the petition of KBL gubernatorial candidate of
Batangas, J. Antonio Leviste (P.P. Case No. 360) for the suspension of the
proclamation of NP gubernatorial candidate Jose C. Laurel V. Thus:
xxx xxx xxx
9119. (PP No. 360). In the matter of the petition to Suspend
Proclamation and the Supplement thereto filed thru
counsel by Governor J. Antonio C. Leviste of Batangas,
praying among others, for the suspension of proclamation
of the winning candidates for Governor of said province on
grounds of fake voters, fake Id cards, flying substitute
voters, falsification of election returns. Considering that
the issues ventilated have been sufficiently discussed in
the petitioner's other previous petitions, which matters
should have been raised before the Provincial Board of
Canvassers of Batangas, the Commission on proper motion
duly seconded RESOLVED to deny the petition and to refer
the complaints contained therein to the Joint Task Force of
the Commission on Elections and the Ministry of Justice for
possible criminal prosecution (p. 40, rec., emphasis
supplied ).
Hence, in view of the promulgation by respondent Commission of Minute
Resolution No. 9119, herein petitioners filed with respondent Commission
on February 18, 1980, an urgent motion for reconsideration of Minute
Resolution No. 9092 (pp. 51-57, rec.). Petitioners claimed that the grounds
averred by Leviste in the latter's petition for the suspension of the
proclamation of NP gubernatorial candidate for Governor of Batangas, were
the same as those relied upon by respondent Lirio. The said "Urgent Motion
for Reconsideration" maintained that considering that respondent
Commission on Minute Resolution No. 9119, denied the Leviste petition in
P.P. Case No. 360, it should reconsider its stand in P.P. Case No. 118, by
revoking and setting aside Minute Resolution No. 9092. It further

maintained that the grounds relied upon by therein petitioners

(respondents herein) were not among those explicitly mentioned by Secs.
172, 173 and 174 of the 1978 Election Code. Petitioners argued that the
grounds relied upon by therein petitioners (respondent herein) were proper
grounds for an election protest which falls under the exclusive jurisdiction
of the Court of First Instance of Batangas, the officials involved being
elective municipal officials.
On February 20, 1980, respondent Lirio and his co-petitioners in P.P. Case
No. 118 filed with respondent Commission an opposition to the urgent
motion for reconsideration (p. 5, Respondent Lirio's Memorandum).
In said opposition, it was pointed out that P.P. Case No. 118 is different from
P.P. Case No. 360 Leviste petition) because in the former, the quantification
of the votes was complete and sufficient to alter the results of the election
while in the latter case the quantification of the votes was incomplete; that
the main basis of the petition in P.P. Case No. 118 is the fact that fake
voters with fake Id's and/or fake Identification slips were allowed to vote;
that Sections 172, 173 and 174 of the 1978 Election Code are not the only
grounds for annulment and/or suspension of proclamation (citing the cases
of Diaz, Sr. vs. COMELEC, 42 SCRA 426; Sinsuat vs. Pendatun, 36 SCRA
613; Kibag vs. COMELEC, 23 SCRA 588; Antonio vs. COM- ELEC, 22 SCRA
319; and Villalon vs. COMELEC, 5 SCRA 594). It prayed that respondents'
(petitioners herein) motion for reconsideration be denied and that "this
case be set for hearing and the reception of such evidence as the parties
may decide. "
On February 23, 1980, after the lapse of the five (5) day period within
which therein respondents (petitioners herein) were required to answer as
per Resolution No. 9092, and after their failure to do so, respondent
Commission, in a telegram-notice dated February 23, 1980, to respondent
Lirio's counsel, granted the prayer in the opposition to the motion for
reconsideration when it set the case "FOR HEARING ON 5 MARCH 1980 AT
10:00 A.M. AT THE SESSION HALL COMELEC MANILA."
Hence, at about 11:55 A.M. of February 26, 1980, petitioners filed with this
Court the present petition wherein it is alleged inter alia that respondent
Commission has acted with grave abuse of discretion in refusing to act on
petitioners' urgent motion for reconsideration dated February 18, 1980 and
in adopting, approving and promulgating Minute Resolution tion No. 9092.
Significantly, on the same date, February 26, 1980 at about 1:00 P.M.,
acting on said urgent motion for reconsideration filed by petitioners,
respondent Commission issued Minute Resolution No. 9306. Thus:

xxx xxx xxx

9306. (PP No. 11 8). In the matter of 'FRANCISCO E. LIRIO,
ET AL., vs. THE MUNICIPAL BOARD OF CANVASSERS
TANAUAN,
BATANGAS
and
SOTERO
OLFATO,
ET
AL." Considering the grounds alleged in the Supplementary
Petition of February 9, 1980 and respondents' Motion for
Reconsideration and the Opposition thereto, and after reevaluation (sic) the grounds which are summarized as
follows:
a) Disenfranchisement of voters who were
not allowed to vote although their names
were in the official list of voters;
b) Terrorism of voters;
c) Voters with fake Ids who were not in the
voters list were allowed to vote without
being certified by the corresponding ding
election committee; and
d) Flying voter.
are proper grounds for an election protest, the
Commission, on promotion, duly seconded, RESOLVED AS
IT HEREBY RESOLVES to dismiss the petition and to
reinstate the proclama tion made by the Provincial Board of
Canvassers in favor of the respondent and his entire ticket,
without prejudice to other legal remedies under the
Election Code of 1978, including the prosecution of the
criminal offenses, if warranted (p. 99, rec., emphasis
supplied).
Likewise, on the same date, February 26, 1980, this Court dismissed the
Leviste petition in G.R. No. L-52687.
On February 27, 1980, Guillermo L. Roxas and Melquiades Salisi, NP
candidates for Vice Mayor and Member, Sangguniang Bayan, respectively,
were proclaimed as duly elected officials in their respective positions. On
February 28, 1980, they took their oaths of office.

On February 28, 1980, this Court in a resolution required respondents to

comment and not to file a motion to dismiss within ten (10) days from
notice.
On the same date, February 28, 1980, petitioners' counsel filed a
manifestation alleging inter alia: that the instant petition was filed at about
11:00 o'clock in the morning of February 26, 1980; that at around 6:00
o'clock in the afternoon of the same date, they (petitioners) were informed
that respondent Commission at its session held at 1:00 o'clock in the
afternoon, promulgated Minute Resolution No. 9306 reinstating the
proclamation of petitioners as winning candidates of Tanauan, Batangas;
that at about 9:00 A.M. of February 27, 1980, they (petitioners) were
officially furnished a certified xerox copy of said resolution (p. 6 1, rec.).
Also, on February 28, 1980, respondent Lirio filed with COMELEC an urgent
motion for reconsideration of said Resolution No. 9306 pointing out, among
others, that in their (respondents') opposition to herein petitioners' urgent
motion for reconsideration, they prayed that said motion be denied and
that the case be set for hearing; that said prayer was actually granted by
respondent Commission when it set the case for hearing on March 5, 1980
as per telegram to respondents' counsel dated February 23, 1980; that
said notice of hearing was made after the lapse of five (5) day period
within which respondents (petitioners herein) were required to answer and
upon their failure to do so; that when Minute Resolution No. 9306 was
issued respondents (petitioners herein) may already be considered to have
been in default and their motion for reconsideration already implied denied
(pp. 100-102, rec.).
On February 29, 1980, petitioner Olfato filed with respondent Commission
an opposition to respondent Lirio's urgent motion for reconsideration (pp.
103-105, rec.).
Thus, on the same date, February 29, 1980, petitioners filed with this Court
an "Urgent Manifestation Ad Cautelam stating among other things: that at
5:30 P.M. of February 28, 1980, they received private respondent Lirio's
urgent motion for reconsideration of respondent Commission's Minute
Resolution No. 9306; that should respondent Commission act favorably on
said urgent motion for reconsideration, petitioners will pursue the petition
for certiorari and prohibition with prayer for temporary prohibitory
injunction and restrain- ing order with the corresponding amendments (p.
65, rec.).
On March 1, 1980, respondent Commission heard the parties in oral
arguments, after which respondent Lirio's urgent motion for

reconsideration and petitioners'

submitted for resolution.

opposition

thereto

were

deemed

within ten (10) days from receipt of this

order.

On March 3, 1980, petitioners assumed their respective offices pursuant to

Section 2 of Batas Pambansa Blg. 52.

2. To consider the proclamation made in

favor of SOTERO OLFATO and his ticket as
one made in accordance with Comelec
Resolution No. 9440, dated March 6. 1980.
in that said proclamation is temporary in
nature as it is subject to the final outcome
of P.P. No. 118 (p. 98, rec., emphasis
supplied).

On March 10, 1980, respondent Lirio filed with this Court a manifestation
alleging that the present petition has become moot and academic in view
of COMELEC Resolution No. 9306 dated February 26, 1980, allowing
petitioners to be proclaimed (p. 67, rec.).
On March 11, 1980, respondent Commission filed with this Court a
manifestation with motion to suspend the period for filing its comment in
view of the likelihood that the case may indeed become moot and
academic (pp. 69-72, rec.). On March 12, 1980, respondent Commission
adopted, approved and promulgated Minute Resolution No. 9558, subject
of the present amended petition. Thus:

On March 21, 1980, petitioners filed with this Court the instant amended
petition seeking to review and set aside Minute Resolution No. 9558,
adopted by respondent Commission on March 12, 1980 (pp. 77-97, rec.).
On March 24, 1980, petitioners filed their answer in P.P. Case No I IS, with
respondent Commission (p. 8, Respondent Lirio's memorandum).

xxx xxx xxx

9558. This is a petition for reconsideration of Comelec
Resolution No. 9306 dated February 26, 1980, the
dispositive portion of which reads as follows:
RESOLVED AS IT HEREBY RESOLVES to
dismiss the petition and to reinstate the
proclamation made by the Municipal Board
of Canvassers in favor of the respondent
and his entire ticket, without prejudice to
other legal remedies under the Election
Code of 1978, including the prosecution of
the Criminal offenses, if warranted.
After considering the comments of the respondents, as well
as the oral arguments of both parties at the hearing held
on March 1, 1980, the Commission, on proper motion, duly
seconded RESOLVES ED as it hereby RESOLVES to amend
Resolution No. 9306 as follows:
1. To reinstate the petition of Francisco
Lirio, et al. by requiring the respondents to
the their answer not a motion to dismiss)

On April 10, 1980, this Court adopted a resolution which ad- admitted the
amended petition of petitioners, required the respondents to answer the
same and not to file a motion to dismiss and issued a temporary
restraining order, enjoining respondent Commission from:
a) enforcing its Minute Resolution No. 9558 in P.P. Case No.
118;
b) taking any further action or proceeding in said P.P. Case
No. 118; and
c) performing any act or taking any action or proceeding of
whatever nature that may prevent or obstruct the lawful
exercise and discharge by petitioners of their powers and
functions as duly elected municipal officials of Tanauan,
Batangas (pp. 111-112, rec.).
On April 25, 1980, private respondent Francisco E. Lirio filed his answer to
the amended petition of petitioners (pp. 121- 134, rec.).
On May 8, 1980, this Court in a resolution, ordered the parties to file their
respective memoranda.

On May 9, 1980, respondent Commission on Elections filed its answer to

the amended petition (pp. 135-145, rec.).
Thus, upon the filing by the parties of their respective memoranda, the
instant petition is now before US for resolution tion.
Basically, the main objection of the petitioners is the alleged want of
jurisdiction of respondent Commission on Elections over P.P. Case No. 118,
entitled "Francisco E. Lirio, et al. vs. The Municipal Board of Canvassers, et
al."
Petitioners contend that while Pre-proclamation Case No. 118, was filed by
respondent Lirio, et al. as a pre- proclamation controversy, the grounds
relied
upon
by
Lirio
are
not
proper
grounds
in
a preproclamationcontroversy but proper grounds in an election protest.
To reiterate, the petition of respondent Lirio, docketed as Preproclamation Case No. 118, alleges the following grounds for the
suspension of petitioners' proclamation:
1. Disenfranchisement of voters who were not allowed to
vote although their names were in the official list of voters;
2. Turncoatism of voters;
3. Voters, with fake Ids who were not in the voters' list were
allowed to vote without being certified by the
corresponding election committee;
4. Flying voters.
In paragraph 6 of the supplementary petition dated February 9, 1980 filed
by respondent Lirio, he averred, among others, that:
6.
It
is
respectfully
submitted
that
these
irregularities involving
fake
voters
and
massive
disenfranchisement (sufficient in number to affect the
results of the election, as in this case), are proper grounds
for a pre-proclamation controversy although they may also
be grounds for a protest)because they affect the very
integrity of the election returns, insofar as these fake
voters and disenfranchised electors are concerned, do not
speak the truth; to say the least, they are incomplete

expressions of people's will through the ballots. We

understand that this is the first time that this question is
being raised ... (pp. 34-35, rec., broken emphasis supplied).
Likewise, page I I of respondent Lirio's memorandum states:
At the outset, we would wish to state that the main basis of
private respondent Lirio's petition and SupplementalPetition in P.P. Case No. 118 for the annulment suspension
of the proclamation ol' petitioners Olfato, et al. is the fact
that fake voters with fake Id's and/or with fake
Identification slips i ere allowed to vote and their spurious
notes were reflected in the election returns, all authored
by NP candidate Olfato, his leaders and henchmen. The
other grounds of massive disenfranchisement, substitute
voters, flying voters and terrorism of voters are only
corollary maters (sic) and included therein only for the
purpose of showing the extensiveness of the fraud
committed in the Municipality of Tanauan, Batangas in the
January 30, 1980 elections. Hence, it is immaterial that the
said other grounds are proper only for election
protest (broken emphasis supplied).
Hence, from the foregoing averments of respondent Lirio, petitioners,
contend that the same amount to an admission on Lirio's part that the
grounds adduced by him (Lirio) with the exception of fake voters with false
Ids and fake identification slips, as Lirio claims are all proper in an election
protest and not in a pre-proclamationcontroversy.
Petitioners strongly assert that the grounds for a pre- proclamation
controversy under the present applicable laws are those expressly
enumerated in Section 175 of the 1978 Election Code. Thus, they say:
The crucial question now left to be resolved and upon
which the jurisdiction of respondent Commission hinges is
whether the respon dent Commission has power and
authority to inquire into the allegation of fake voters, with
fake Ids and fake Identification slips in a preproclamationcontroversy pursuant to its power vested by
law under Section 175 of Presidential Decree 1296 more
popularly known as the 1978 Election Code.

It is our contention that respondent Commission has no

jurisdiction to
determine,
in
a preproclamation controversy, whether indeed there had been
fake voters and thereafter, to annul a proclamation already
made, for Section 175 is a delimitation on the broad
powers vested by law in the Commission on Elections (p. 9,
Petitioners' Memorandum).
Section 175 of the 1978 Election Code reads:
Section 175. Suspension and annulment of proclamation.
The Commission shall be the sole judge of all preproclamation controversies and any of its decisions, orders
or rulings shall be final and executory. It may, motu propio
or upon written petition, and after due notice and hearing,
order the suspension of the proclamation of a candidateelect or annul any proclamation, if one has been made, on
any of the grounds mentioned in Sections 172, 173, and
174 hereof (emphasis supplied).
Petitioners further assert that "nowhere in the 1978 Election Code are
other grounds, similar or analogous, enumerated or provided for the
suspension or annulment of the proclamation other than those in Sections
172, 173 and 174.
Section 172 provides:
Section 172. Material defects in the election returns. If it
should clearly appear that some requisites in form or data
had been omitted in the election returns, the board shall
return them by the most expeditious means, to the
corresponding election committee for correction. Said
election returns, however, shall not be returned for a
recount of the ballots or for any alteration of the number of
votes set forth therein: Provided, that in case of the
omission in the election returns of the name of any
candidate and/or his corresponding votes, the board of
canvassers shall require the election committee concerned
to complete the necessary data in the election returns and
affix therein their initials: Provided, further, that if the votes
omit ted in the returns cannot be ascertained by other
means except by recounting the ballots, the Commission
after satisfying itself that the Identity and integrity of the
ballot box have not been violated, and also after satisfying

itself that the integrity of the ballots therein has been duly
preserved, order the committee to count the votes for the
candidate affected, or his representative and thereafter
complete the returns.
Section 173 provides:
Section 173. When election returns appear to be tampered
with or falsified. - If the election returns submitted to the
board of canvassers appear to be tampered with, altered or
falsified after it has leftthe hands of the election
committee, the board shall use the other authentic copies
of said election returns valid if necessary, the copy inside
the ballot box which upon previous authority given by the
Commission may be retrieved in accordance with Section
163 hereof. If the other copies of the returns are likewise
tampered with, altered, or falsified, the board of
canvassers or any candidate affected shall bring the
matter to the attention of the Commission. The
Commission shall then, after giving notice to all candidates
concerned and after satisfying itself that nothing in the
ballot box indicates that its identity and integrity have
been violated. order the opening of the ballot box and
likewise after satisfying itself that the integrity of the
ballots therein has been duly preserved shall order the
election committee to recount the votes of the candidates
affected and prepare a new return which shall then be used
by the board of canvassers as basis of the canvass
(emphasis supplied).
And Section 174 provides:
Section 174. Discrepancies in election returns. In case it
appears to the board of canvassers that there exists
discrepancies in the other authentic copies of the election
returns from a voting center or discrepancies in the votes
of any candidate in words and figures in the same return
and in either case, the difference affects the results of the
election, the Commission, upon motion of the board of
canvassers or any candidate affected and after due notice
to all candidates concerned, shall proceed summarily to
determine whether the integrity of the ballot box had been
preserved and once satisfied thereof, shall order the
opening of the ballot box to recount the votes cast in the

voting center solely the purpose of determining the true

result of the count of votes of the candidates concerned:
Provided, however,tThat if upon the opening of the ballot
box it should appear that there are evidences or signs of
replacement or tampering of the ballots, the Commission
shall not recount the ballots but shall forthwith seal the
ballot box and order its safekeeping.
It is therefore clear from the above-quoted provisions that Section 172
speaks of material defects in the election returns, Section 173 speaks of
tampered, altered or falsified returns and Section 174 speaks of
discrepancies of election returns.
Hence, petitioners further averred that "it is clear that fake voters, fake Ids
and fake Identification slips are fraudulent election practices which may
not be entertained by the respon dent Commission in a preproclamationcontroversy" (p. 17, Petitioners' Memorandum, emphasis
supplied).
Petitioners in defending the alleged authenticity of the returns argued that
"even assuming arguendo that voters, with fake Ids and false identification
slips, were able to vote in the January 30, 1980 elections, the election
returns prepared on the basis of the ballots cast and counted cannot be
classified as spurious or manufactured. Had no elections taken place and
yet, returns were made and submitted by the election committee no doubt
these returns would be spurious. But where votes are cast, counted and
returns prepared, the latter be considered as manufactured or falsified."
The genuineness of the election returns is therefore unquestionable. What
may probably be questioned are the ballots themselves and this cannot be
done in a pre-proclamation controversy where petitioners seek to nullify a
proclamation validly made for pre-proclamation controversies, being
summary in nature, must be disposed of with little or no delay" (p. 13,
Petitioners' Memorandum, emphasis supplied).
Respondent Lirio, in vehemently refuting the alleged want of jurisdiction of
respondent Commission, on page 12 of his memorandum states:
It is now our submission that the respondent COMELEC has
jurisdiction over the nature of P.P. Case No. 118.
The Constitution grants respondent COMELEC the general
power to 'enforce and administer all laws relative to the

conduct of elections, 'makes it the sole judge of all

contests relating to the elec- tions, returns, and
qualification of elections ... provincial and city officials,' and
mandates it to 'perform such other functions as may be
provided by law'(sec. 1, pars. 1, 2 and 8, Art. XII,
Constitution).
The 1978 Election Code which Batas Pambansa Blg. 52
expressly made applicable to the January 30, 1980 local
elections, provides that 'the Commission shall be the sole
judge of all pre-proclamation controversies and any of its
decisions, orders or rulings shall be final and executory'
(Sec. 175) and that it shall 'have exclusive charge of the
enforcement and administration of laws relative to the
conduct of elections for the purpose of insuring free,
orderly and honest elections' (lst par., Sec. 185), with
power and authority to 'enforce and execute the decisions,
directives, orders and instructions on any matter affecting
the conduct of any electoral process (Sec 185[c]).
The previous rule that the Comelec cannot go beyond the election returns
in canvassing the same (NP vs. Comelec, 85 Phil. 149, 157-158; Dizon vs.
Provincial Board, 52 Phil. 47, 57-59) had been eroded in subsequent cases
since 1966.
Thus in the 1966 case of Lagumbay vs. Comelec (L-25444, Jan. 31, 1966,
16 SCRA 175), this Court empowered the Commission on Elections to
nullify certain contested returns on the ground of "statistical
improbabilities", when WE sustained the authority of the Commission to
examine voting records, the number of ballots and the number of votes
reportedly cast and tallied for each and every candidate, when the returns
are obviously false or fabricated. In said case, WE, adopted "a practical
approach to the Commissions mission to insure a free and honest
elections" by denying prima facie recognition to the election returns on the
ground that they were manifestly manufactured or falsified.
In the Lagumbay case, this Court further stated:
In Mitchell vs. Stevens, supra, the returns showed a
noticeable excess of votes over the number of registered
voters, and the court rejected the returns as obviously
"manufactured". Why? The excess could have been due to
the fact that, disregarding all pertinent data, the election
officers wrote the number of votes their fancy dictated; and

so the return was literally a 'manufactured', 'fabricated'

return. Or maybe because persons other than voters, were
permitted to take part vote; or because registered voters
cast more than one ballot each, or because those in charge
of the tally sheet falsified their counts. Hence, as the
Mitchell decision concluded, the returns were 'not true
returns ... but simply manufactured evidences of an attempt to defeat the popular will. ' All these possibilities
and/or probabilities were plain fraudulent practices,
resulting in misrepresentation tion of the election outcome.
'Manufactured' was the word used. 'Fabricated' or 'false'
could as well have been employed.

It is generally admitted that the practice has prevailed in

all previous elections. Never was the point pressed upon us
in a more clear-cut manner. And without, in any way
modifying our stand as outlined in the Nacionalista Party
vs. Commission decision, we feel the mores of the day
require application - even extension - of the principle in the
Mitchell decision, which is realistic and common sensical
even as it strikes a blow at such pernicious "grab-theproclamation-prolong-the-protest"
slogan
of
some
candidates or parties.

xxx xxx xxx

(16 SCRA, 178, 179-180).

Of course we agree that frauds in the holding of the

election should be handled and finally settled by the
corresponding courts or electoral tribunals. That is the
general rule, where testimonial or documentary evidence,
is necessary; but where the fraud is so palpable from the
return itself (res ipsa loquitur the thing speaks for itself),
there is no reason to accept it and give it prima facievalue.
At any rate, fraud or no fraud, the verdict in these fifty
precincts may intimately be ascertained before the Senate
Electoral Tribunal. (This answers the erroneous claim that
our decision usurps functions of the Senate Electoral
'Tribunal). All we hold now, is that the returns show prima
facie that they do not reflect true and valid reports of
regular voting. The contrary may be shown by candidate
Climaco in the corresponding election protest.
The well-known delay in the adjudication of election
protests often gave the successful contestant a mere
pyrrhic victory, i.e., a vindication when the term of office is
about to expire, or has expired. And so the notion has
spread among candidates for public office that the
'important thing' is the proclamation; and to win it, they or
their partisans have tolerated or abetted the tampering or
the 'manufacture' of election returns just to get the
proclamation, and then let the victimized candidate to file
the protest, and spend his money to work for an empty
triumph.

xxx xxx xxx

Likewise, in the 1971 case of Diaz, Sr. vs. Commission on Elections (I,-333'f
8, No 29, 1971, 42 SCRA 426, 435), WE reiterated the above doctrine. In
said Diaz case, the petitioners petition for the amendment of all the
election returns from the municipality of Sagada, Mountain Province, in
connection with the 1970 elections for delegate of said Province to the
Constitutional Convention, and for the exclusion from the canvass of all the
returns aforesaid, for being spurious, fabricated and/or fictitious, was
dismissed by the respondent Comelec. Petitioner therein charged that
many election inspectors in Sagada had been improperly appointed
(because they had been previously found by the House Electoral Tribunal
to have deliberately tolerated and abetted the commission of frauds in
Sagada in connection with the 1961 elections), and that the elections for
convention delegates (3) in said municipality were tainted with fraud and
terrorism and other irregularities. It prompted the Comelec to order the
bringing to Manila of the precinct book of voters and CE form 39 for all
precincts of Sagada and had the same examined by the fingerprint and
handwriting experts of the Commission and the NBI. While the Comelec
discovered the existence of fraudulent practices and commission of other
election irregularities such as illegal voting, nevertheless it sustained the
validity of the returns from Sagada, on the ground that more than one-half
of those who voted were the registered voters in said precincts (emphasis
supplied).
This Court in overruling the Commission on Elections anchored its
conclusion on the reports of the fingerprint experts on their examination of
the precinct books of voters and other voting records. In effect, this Court
sanctioned the Comelec's procedure, upon establishment of a strong prima
facie case, of causing the examination by fingerprint and handwriting
experts and analysis of the signatures and fingerprints of the precinct

books of voters and the CE 39's and voting records, in order to determine
whether the reported elections were a sham amounting to no election at all
and accordingly accord no prima facie value to the election returns and
reject them as manufactured or false returns.
Thus, this Court concluded that where all the evidence and circumstances
point to a systematic plan of allowing persons who were not registered
voters to cast their ballots in all the precincts of a certain municipality and
to count such spurious ballots and take them into account in the returns,
there is no alternative but to consider said returns as deliberately prepared
with a view to alter the true results of the voting, through either malice or
coercion. The returns thereby become false or falsified.

and abetted the commission of frauds' in the 1961

elections (H.E.T. Case No. 145); (d) that Sagada has been
notorious for massive and large scale frauds in the past, as
found by COMELEC itself; and (e) that the resolution of the
COMELEC in this case contradicts that which it adopted in
connection with the returns from Karomatan, Lanao, all of
which were rejected and excluded from canvass on account
of similar anomalies Usam vs. Comelec, G.R. No. L-33325),
when justice and equity imperatively demand that there
should be no discrimination in the application of the rules
by COMELEC.
xxx xxx xxx

In the Diaz vs. Comelec case, this Supreme Tribunal, through Mr. Justice J.B.
L. Reyes, stressed:
Thus the analysis of the returns for the six precincts
validated by the Commission leads to the same conclusion
as that derived from a consideration of all the returns from
Sagada, to wit: that even if all the votes cast by persons
Identified as registered voters were to be added to the
votes cast by persons who can not be definitely
ascertained as registered or not, and granting, ad
arguendo, that all of them voted for respondent Daoas still
the resulting total is much below the number of votes
credited to the latter in the returns for Sagada. Plainly, the
said returns can not be relied upon and should be regarded
as fictitious or manufactured and excluded from the
canvass of the votes cast for the different candidates in the
district. This conclusion becomes all the more imperative
when account is taken of the additional circumstances that
(a) of the 2,188 ballots cast in Sagada in the 1970 election
for convention delegates, nearly one- half (1,012) were
cast by persons definitely identified as not registered
therein, and this number may even increase because some
of the 399 thumbprints and/or signatures that could not be
Identified may have been cast by non-registered persons;
(b) that such wholesale illegal voting could not have taken
place without the connivance of the inspectors, either
maliciously or through intimidation, as found by COMELEC
in its resolution and the true results can not be ascertained
(c) that 16 of the inspectors and poll clerks who acted as
such in the 1970 elections in Sagada had been found by
the House Electoral Tribunal to have 'deliberately tolerated

In the leading case of Gardener vs. Romulo, 26 Phil. 521,

this Court quoted with approval from a similar case, Russel
vs. State:
Russell vs. State (11 Kan. 236), the court
said in part; 'Now comes the contestant
and says that the record (of the election
board) is a lie, and proves that 127 of the
names so record- ed as the names of legal
voters are fictitious, and that 127 spurious
ballots were cast into the ballot box. In
other words, he proves absolutely that
nearly one-fourth of this record is false.
And this falsehood cannot have been the
result of ignorance or mistake. It is not
possible that this could have happened
without the knowledge, consent, and
connivance of both the clerks, and some,
at least, if not all, of the judges. Surely,
there was criminal culpability if not actual,
intentional wrong- doing on the part of all
the officers of that election board. But, says
the contestee, the whole record is not
shown to be false. reject the 127 votes
proved to have been spurious, and accept
the balance not thus proven. In other
words, accept all the record not proved
untrue. If the falsehood resulted from mere
mistake, there would be great force in this
demand. So also, if the falsehood resulted

from the fraud or wrong-doing of others

than the board. But where the recording
officers are proved to have knowingly
made a largely false and fraudulent record,
how can we place reliance on any of the
record? Falsus in uno, fatsus in omnibus. '
It doubtless happens that some legal
voters are by this decision deprived of the
benefit of their votes. Perhaps there were
honest votes cast, enough to have given
the majority to Fredonia. A large majority of
the citizens of Fredonia are honest men,
and are doubtless as much grieved as we
at this terrible trespass on the purity of the
ballot box. May this example preach its
lesson, not alone to them, but equally to
every citizen of the State. They who in
Rome watched and kept the sacred fire
were vestal virgins. Equally pure should
they be who watch and guard that which is
far more to us than mystic altar fires.
(Gardener vs. Romulo, 26 Phil. 521, 559560).'
And this Court concluded:
In concluding this extremely disagreeable
task, we desire to state that we are aware
of the seriousness of disenfranchising the
innocent electors of a whole precinct for
acts done by others. We are not unmindful
of the force of the argument that if courts
set aside the returns from a precinct for
light and trifling causes, it will encourage
the unscrupulous to seek profit by the
honest mistakes of election officers
committed
in
the
conscientious
performance of their duties. On the other
hand we appreciate the importance to the
people of enforcing those statutory
provisions which the legislature have
provided to insure a free and undefiled
expression of the popular will at the polls,

to the extent that fraud may not flourish

under the guise of honesty. The right of
Suffrage is of comparatively recent origin
in this country. If at this early stage of its
existence the courts are to countenance
such bold disregard of the law as was
exhibited in the Municipality of Camiling at
the last general election, representative
government win soon become a farce; a
mere catchword or an empty illusion.
Regardless
of
the
political
unrest
engendered by such deplorable litigation
as the present and its enormous expense
to the contestants, we are of the opinion
that a firm stand against fraudulent
elections must now be taken, once for all. if
no encouragement is offered to vicious
practices, they with at least, never grow
larger (Gardener vs. Romulo, 26 Phil. 521,
565-566).
xxx xxx xxx
As already observed, WE are not here dealing with
occasional or sporadic irregularities that succeeded in
surprising the good faith of the election inspectors. An the
evidence and circumstances point to a systematic plan of
allowing persons who were not registered voters in Sagada
to cast their ballots in all the precincts of Sagada, and to
count such spurious ballots and take them into account in
the returns. There is thus no alternative but to consider
said returns as deliberately prepared with a view to alter
the real results of the voting, through either malice or
coercion. In either case, the returns must be deemed
manufactured or falsified, without any title to be
inexcluded in the canvass of votes for delegates by the
Provincial Board of Canvassers for the Mountain Province
(supra, pp. 432-434, 435).
Incidentally, the 1971 Diaz ruling was reiterated on the same date
(November 29, 1971) the Diaz case was resolved, in the case of Estaniel
vs. Commission on Elections (L- 334453, Nov. 29, 1971, 42 SCRA 436).

In the Estaniel case, Mr. Justice Teehankee, speaking for the Court, invoked
the Diaz ruling and emphasized:
In the Sagada case resolved just now by the Court in Diaz
vs. Comelec, L-33378, and likewise involving a delegate
seat (from the Mountain Province.) for the Constitutional
Convention under Republic Act No. 6132, the Court
sanctioned
the
Comelec's
proprocedure,
upon
establishment of a strong prima facie case, of causing the
examination and analysis of the signatures and fingerprints
of the precinct books of voters and the CE 39's and voting
records, in order to determine whether the reported
elections were sham and tan amount to no election at all
and accordingly accord no prima facie value to the election
returns and reject them as manufactured and false returns.
"The Court, however, therein emphasized through Mr.
Justice Reyes that 'justice and equity imperatively demand
that there should be no discrimination in the application of
the rules by Comelec.

Moreover, a month later, in the case of Usman vs. Comelec (Dec. 29, 1971,
42 SCRA 667), Mr. Chief Justice Castro, then Associate Justice, spoke for the
Court, thus:
On November 12, 1970, Luis Quibranza, Francisco Abalos, Alfredo Bosico,
Luis Buendia and Bonifacio Legaspi (hereinafter referred to as the Comelec
petitioners), candidates for delegate in the aforementioned district,
petitioned the Commission on Elections (hereinafter referred to as the
Comelec) for a declaration of nullity of the election returns from all the
precincts of seven municipalities and municipal districts Karomatan,
Pantao-Ragat, Matungao Munai Tangcal, Magsaysay, and Nunungan and
four barrios - Kapatagan, Salvador, Lala, and Kauswagan of Lanao del
Norte. The Comelec petitioners alleged as grounds that in the said
municipalities and barrios, no actual voting took place because of
'terrorism and other machinations,' and that
fictitious election returns were prepared
under duress, and the influence of
terrorism and/or bribery wherein, it was
made to appear, that certain favored
candidates obtained most, if not the votes
fictitiously cast therein, while petitioners
were made to appear as having obtained
very few, if no votes at al.

xxx xxx xxx

Much as the Court wishes to pronounce finish to this
contest (which must have been likewise the Comelec's
well-meaning but erroneously implemented motivation for
its questioned resolution), it is therefore constrained to
remand the case to the Comelec, in the in interest of the
electorate of Cotabato as well as of the contending
candidates, for the carrying out of the examination and
analysis by Comelec's own and deputized fingerprint and
handwriting experts of the voting records in the four
municipalities of Pikit, Pagalungan, Maganoy and Dinaig,
and for the questioning of the chairmen of the boards of
inspectors in said four towns, during the November, 1970
elections for Constitutional Convention delegates, to the
extent necessary for Comelec to determine whether or not
the elections therein where sham and the corresponding
election returns should be rejected and excluded as
manufactured returns and insofar as the results for tenth
place winner would be affected thereby (supra, pp. 446,
447).

The Comelec petitioners particularly stressed that the

canvass- ing of the fictitious votes and the preparation of
the election returns from the precincts of Karomatan were
in violation of the procedure laid down in resolution 769 of
the Comelec. They prayed for the holding of a special
election in the municipalities and barrios concerned
and, ad interim, the suspension of the canvass as well as
the proclamation of the winning candidates until after
hearing and decision on the merits of the petition.
xxx xxx xxx
On November 24, 1970, the Comelec petitioners, joined by
another candidate, Potri Ali Pacasum, amended their
petition, ask- ing for the exclusion of the election returns
from the precincts of the barrios of Kapatagan, Salvador,
Lala, and Kauswagan except those from precincts 16 and
24 of Kapatagan and precincts 14 and 14-A of Salvador,

and repeating their allegation that no elections actually

took place in the questioned precincts,
and/or in the remote possibility that
elections had been initiated they were
suspended before the hour fixed by law for
the closing of the voting because of
violence or terrorism and that the votes not
cast therein are sufficient to affect the
results of the elections,
and adding that the election returns from the said precincts
,
... were prepared prior to the elections, and/or had been
tampered with and/or are statistically improbable in that
the number of voters who allegedly cast their votes is out
of portion to the actual population in those municipalities
and municipal districts concerned.
xxx xxx xxx
Thus, Usman, on March 22, 1971, filed the present petition
for review, (1) challenging the jurisdiction of the Comelec
in resolving the issue relating to the genuineness and
authenticity of the disputed election returns, and in
inquiring into the regularity or irregularity of the
thumbmarks and signatures of the voters who voted; (2)
ques- petitioning the regularity of the proceedings adopted
by the Comelec in relation to the exercise of its jurisdiction;
and (3) assailing the probative value of the findings made
regarding the signatures and thumbmarks of the voters
who voted in the 42 precincts of Karomatan. Usman prayed
for (1) the issuance of a writ of preliminary injunction
restraining the Comelec from enforcing its resolution dated
March 25, 1971; (2) the setting aside of the Comelec
resolution dated March 12, 1971 and the inclusion of the
results from the 42 precincts of Karomatan in the canvass
of the election returns and his proclamation as the winning
candidate; and (3) in case this Court sustains the aforesaid
Comelec resolution, the calling of a special election in all
the 42 precincts of Karomatan, pursuant to section 17(e) of
Republic Act 6132 (Section 17[e] states: 'Whenever the
Commission determines, after notice and hearing, that no

voting has been held or that voting has been suspended

before the hour fixed by law for the closing of the voting in
any precinct or precincts because of force majeure,
violence or terrorism, and the votes not cast therein are
sufficient to affect the results of the election, the
Commission may call for the holding or continuation of the
election in the precinct or precincts concerned. Pending
such call, no candidate whose elec- tion may be affected
by the holding or continuation of the election, shall be
proclaimed elected.')
xxx xxx xxx
Usman's main argument hinges entirely on what he views
as the well-circumscribed jurisdiction of the Comelec in
pre- proclamation controversies. He argues that the
Comelec, in such pro- proceedings summary in nature
and character - has jurisdiction only to determine questions
relating to the qualification of the members of the board of
canvassers, the completeness or incompleteness of a
canvass, and the integrity and authenticity of election
returns.
xxx xxx xxx
The broad power of the Comelec, conferred upon it by the
constitution, to enforce and administer "all laws relative to
the conduct of elections" and to decide all administrative
questions affecting elections "for the purpose of insuring
free, orderly and honest elections," has been the key in the
resolution
of
many pre-proclamation controversies
involving the integrity and authenticity of election returns.
Invoking the aforestated power of the Comelec, we justified
the action and upheld the authority of the Comelec to
order the exclusion of "obviously manufactured" returns
(Lagumbay vs. Climaco and Comelec, 16 SCRA 175), or
tampered returns (Cauton vs. Comelec and Sanidad, 19
SCRA 911), or returns prepared under threats and coercion
or under circumstances affecting the returns' integrity and
authenticity (Pacis vs. Comelec, 25 SCRA 391; Antonio, Jr.
vs. Comelec, et al., 32 SCRA 319), emphasizing the duty of
the Comelec to see to the use and inclusion in the canvass
of only genuine elections.

Several circumstances, defying exact description and

defendent mainly on the factual milieu of the particular
controversy, have the effect of destroying the integrity and
authenticity of disputed election returns and of avoiding
their prima facie value and character. If satisfactorily
proven, although in a summary proceeding, such
circumstances as alleged by the affected or interested
parties, stamp the election returns with the indelible mark
of falsity and irregularity, and, consequently, of
unreliability, and justify their exclusion from the canvass.

2. The day before the elections, the members of the boards

of inspectors of Karomatan were summoned to the office of
the mayor where they were 'asked' to 'cooperate' by
making some candidates win in their respective precincts;

xxx xxx xxx

4. The other irregularities among them, multiple

registration, blurred fingerprints making Identification
impossible, and Id pictures attached to CE forms I showing
the registered voters as minors appearing in the precinct
books of voters of Karomatan making possible the
perpetration of the election anomalies; and

In the performance of its duty to guard against the use and

inclusion of returns prepared under circumstances showing
their falsity in the canvass of election results, the Comelec
should not be hampered in the choice of effective means
and methods to fully ascertain the genuineness and
regularity of disputed election returns. To establish the
indubitable existence of any of such circumstances
necessarily not evident from an examination of the election
returns themselves demands recourse to proof
independent of the election returns or to evidence aliunde.
At this juncture, we find it necessary to mention that the
results of the examination and analysis of the voters'
fingerprints and signatures indicating that many of the
registered voters have been voted for by persons not even
registered in the 42 precincts of Karomatan, constituted
not the sole factor which prompted the Comelec to declare
the 42 election returns as 'spurious and/or manufactured a
totality of circumstances, not merely of persuasive but
of compelling character led the Comelec to consider and
conclude that the aforesaid election returns are 'spurious
and/or manufactured and therefore unworthy of inclusion
in the canvass of the election results. The Comelec heavily
relied on the following noteworthy circumstances:
1. The very high percentage of voting in the 42 precincts of
Karomatan - with 100% voting in 7 precincts where the
number of votes exceeded the number of registered voters
in the whole town of Karomatan, there appeared an excess
of 138 votes over the number of registered voters;

3. The members of the boards of inspectors of Karomatan,

either out of fear due to terrorism or in connivance with
those responsible for the election anomalies, allowed
voting by persons other than those registered as voters in
their respective precincts;

5. xxx xxx xxx

6. We fully agree with the Comelec that the totality of all
the foregoing circumstances, taken together with the
findings of the Fingerprint Identification Division of the
Comelec and of the Questioned Documents experts of the
NBI, more than sufficies to completely overcome the prima
facie value of the 42 election returns from Karomatan,
strongly belying their integrity and authenticity. These
circumstances definitely point, not merely to a few isolated
instances of irregularities affecting the integrity and
authenticity of the election returns, but to an organized,
well-directed large-scale operation to make a mockery of
the elections in Karomatan. We find and so hold that the
election returns from the 42 precincts in question were
prepared under circumstances conclusively showing that
they are false, and are so devoid of value as to be
completely unworthy of inclusion in the canvass. We have
no alternative but to affirm the Comelec's finding that they
are spurious and manufactured.
xxx xxx xxx
(supra pp. 670-671, 672, 678, 683, 686, 687-689).

Thus, it becomes clear from the above rulings that respondent Commission
on Elections has the power and authority to inquire into the allegation of
fake
voters,
with
fake
Ids
Identification
slips
in
a preproclamationcontroversy in order to determine the authenticity or integrity
of the election returns or whether such election returns faithfully record
that only registered or genuine electors were allowed to vote.
This ruling was further underscored in the case of Abes vs.
Comelec decided on December 15, 1967 (21 SCRA 1252, 1255-1256),
where this Court held:" ... Neither Constitution nor statute has granted
Comelec or the board of canvassers the power, in the canvass of election
returns, to look beyond the face thereof, once satisfied of their
authenticity." Thus, it is noted that before the canvass the Comelec must
first determine mine the genuineness and integrity of the election returns.
If on the face of the election returns the authenticity thereof is not patent,
then the Comelec can go beyond the face thereof to satisfy itself of their
authenticity or integrity.
While admittedly the Commission on Elections has no jurisdiction over
election contests involving municipal or municipal offices (Sec. 190, 1978
Election Code), WE must not lose sight of the fact that the instant suit
involved a pre- proclamation controversy filed by the private respondent
before the respondent Commission. Indeed, it is immaterial if some of the
grounds adduced by the private respondent (petition petitioner therein) are
grounds for an election contest rather than grounds for a preproclamation controversy.
Section 175 (first sentence) of the 1978 Election Code explicitly provides
that "the Commission shall be the sole judge of all preproclamation controversies and any of its decisions, orders or rulings shall
be final and executory" (emphasis supplied)
The law says "all," and therefore covers all pre-proclamation tion
controversies involving national, provincial, city and municipal elective
officials. The law does not distinguish nor contain qualifications.
Although the second sentence of Section 175 of the 1978 Election Code
provides that suspension or annulment of a proclamation may be made if
based on the grounds mentioned in Sections 172, 173 and 174, WE are not
prepared to declare that the enumeration is exclusive. The enumeration
made in Section 175 only emphasizes the old rulings of this Court and
statutory provisions on the matter affirming the power of the Comelec to
suspend or annul a proclamation based on material defects in the election
returns, tampered, altered, falsified elec- tion returns or in case of

discrepancies in the election returns. It may not be amiss to state also that
Sections 172, 173 and 174 of the 1978 Election Code are substantially a
reproduction of Sections 204, 205 and 206 respectively of the 1971
Election Code. Section 204 provides:
Section 204. Material defects in the election returns. If it
should clearly appear that some requisite in form or data
had been omitted in the election returns, the board shall
return them by the most expeditious means to the
corresponding boards of inspectors for correction. Said
election returns, however, shall not be returned for a
recount of the ballots or for any alteration of the number of
votes set forth therein: Provided, That in case of the
omission in the election returns of the name of any
candidate and/or his corresponding ding votes, the board
of canvassers shall require the board of inspectors
concerned to complete the necessary data in the election
returns and affix therein their initials: Provided, further,
That if the votes omitted to be placed in the return cannot
be ascertained by other means except by recounting the
ballots, the Commission on Elections after satisfying itself
that the Identity and integrity of the ballot box have not
been violated, shall order the board of inspectors to open
the ballot box, and also after satisfying itself that the
integrity of the ballots therein has been duly preserved,
order the board to count the votes for the candidate whose
votes have been omitted in the presence of the candidate
affected, or his representative and thereafter complete the
return.
Section 205 provides:
Sec. 205. When election returns appear to be tampered or
falsified. If the copy of the election return submitted to
the board of canvassers appears to be tampered, altered or
falsified after it has left the hands of the board of
inspectors, the board of canvassers shall use the other
authentic copies of said election return, except the copies
furnished the political parties, and, if necessary, the copy
inside the ballot box which upon previous authority given
by the Commission may be retrieved in accordance with
Section one hundred ninety-seven hereof. If all copies of
said returns are equally tampered, altered or falsified and
cannot be used in the canvass, the board or any candidate

affected shall bring the matter to the attention of the

Commission. The Commission shall then, after giving
notice to all candidates concerned and after satisfying itself
that nothing in the ballot box indicates that its identity and
integrity have been violated, order the opening of the
ballot box and likewise after satisfying itself that the
integrity of the ballots therein has own duly preserved shall
order the board of inspectors to recount the votes of the
candidates affected and prepare a new return which shall
then be used by the board of canvassers as basis of the
canvass.
And Section 206 provides:
Sec. 206. Recounting of votes. In case it appears to the
board of canvassers that there exists discrepancies in two
or more authentic copies of election returns, other than the
copies furnished the Political parties from an election
precinct or discrepancies in the votes of any candidate in
words and figures in the same return and in either case,
the difference affects the result of the election, the proper
Court of First Instance, upon motion of the board or of any
candidate affected and after due notice to candidates
concerned shall proceed summarily to determine whether
the integrity of the ballot box had been preserved and once
satisfied thereof shall order the opening of the ballot box to
recount the votes cast in the precinct solely for the
purpose of determining the true result of the count of votes
of the candidates concerned: Provided, however, That if
upon the opening of the ballot box it should appear that
there are I evidences or signs of replacement or tampering
of the ballots, the Court shall not recount the ballots but
shall forthwith seal the ballot box and deliver the same to
the Commission on Elections for safekeeping.
To give a strict interpretation of Section 175 (second sentence) of the 1978
Election
Code
would
be
to
limit
the
grounds
in preproclamation controversies to matters purely affecting election returns. WE
believe that to revert to the old doctrine prohibiting the Comelec from
looking behind the election returns as to the existence of election
irregularities is not consistent with the very purpose of the law. Clearly,
Sections 172, 173 and 174 only speak of irregularities committed in the
preparation of election returns themselves. WE cannot see any difference
however if the Comelec be allowed to suspend a canvass or suspend or

annul a proclamation of a candidate-elect on the ground that irregularities

or mistakes in the preparation of the returns such as tampering, altering,
falsifying of returns, material defects or discrepancies of election returns
exist and deny said authority to the Comelec if based on grounds not
apparent on the face of the election returns but indirectly affecting their
integrity. Certainly, it would be ridiculous to deny the Comelec the
authority to suspend a canvass or suspend or annul a proclamation if
based on grounds of election iregularities committed during the election
which would necessarily also vitiate or affect the integrity of the election
returns such as fake voters whose votes cast and included during the
canvass would inevitably be reflected in the election returns themselves,
although not apparent upon the face. Seemingly genuine returns based on
fake votes are equally spurious as tampered election returns. To sustain
the validity of election returns despite a prima facie showing of the
commission prior to the voting of election irregularities independent of the
subsequent act of preparing the election returns is to stamp our approval
on making said election returns as an impenetrable shield in the
perpetration of election anomalies.
Hence, once there is a prima facie showing of the commission of other
election irregularities which will ultimately be reflected in the election
returns, the Comelec should in a pre- proclamation controversy, with due
observance of due process of course, be also authorized to suspend
canvass, Suspend or annul a proclamation of a candidate-elect, for it
smacks of absurdity to proscribe the commission of one kind of irregularity
and yet countenance another kind of irregularity, when both irregularities
make a mockery of suffrage.
In the case of Aratuc vs. Commission on Elections (February 8, 1979, 88
SCRA 251), the issue as to the enlargement of the powers of the Comelec
has been foreclosed. Thus:
Correspondingly, the Election Code of 1978, which is the
first legislative construction of the pertinent constitutional
provisions, makes the Commission also the "sole judge of
all pre- proclamation controversies" and further provides
that "any of its decisions, orders or rulings (in such
controversies) shall be final and executory", just as in
election contests, "the decision of the Commission shall be
final, and executory and inappealable". (Section 193).
It is at once evident from these constitutional and statutory
modifications that there is a definite tendency to enhance
and envigorate the role of the Commission on Elections as

the independent constitutional body charged with the

safeguarding
of
free,
peaceful
and
honest
elections (emphasis supplied).
Justice Pacifico de Castro in a separate opinion in the Aratuc case affirming
the enlarged powers of the Comelec as envisioned by the framers of the
1973 Constitution, said:
... With the conferment of exclusive authority on the electoral process upon
it, the Commission may be said to have been given full discretionary
authority, the exercise of which would give rise to a controversy involving a
political question.
xxx xxx xxx
If the Commission has the power to suspend motu proprio
the proclamation of a candidate-elect, it must have the
power to conduct inquiry into the cause for which it ordains
the suspension of the proclamation such as making its own
examination of the integrity of election returns, or
inquiring into any relevant matter affecting the purity of
the ballot (88 SCRA 290, 291, emphasis supplied).
The Commission in Elections has been granted powers
under the Constitution which, under the old Constitution,
belonged either to the legislative body (Electoral Tribunals)
or to the courts. This is evident from the provision of the
new Constitution which reads:
(2) Be the sole judge of an contents
relating to the elections, returns, and
qualification of all Members of the National
Assembly and elective provincial and city
officials'
(Section
2,
Article
XII,
Constitution).
The Commission is thus envisioned to exercise exclusive
powers on all electoral matters except the right to vote,
such as the enforcement and administration of laws
relative to the conduct of elections deciding administrative
questions affecting elections, except those involving the
right to vote, but also those that heretofore have been
regarded, as matters for strictly judicial inquiry, such as the

hearing and disposition of election contests, as is

doubtlessly shown by the transfer thereto of the powers
previously conferred upon the Electoral Tribunal of
Congress and the Courts (see section 2, par. 2, Article XII,
New Constitution) ... (supra, pp. 288- 289).
The aforesaid enlarged powers of the Comelec under the 1973 Constitution
become more apparent under Section 174 of the 1978 Election Code
wherein the authority to recount the votes cast in a voting center, formerly
vested upon the Court of First Instance, is now exercised by the
Commission on Elec- Lions. Thus Section 163 of the Revised Election Code
(R.A. No. 180, as amended by R.A. Nos. 599, 867, 2242, 3036, 3522, 3588,
and 4074) provides:
Sec. 163. When statements of a precinct are contradictory.
In case it appears to the provincial board of canvassers
that another copy or other authentic copies of the
statement from an elec- tion precinct submitted to the
board give to a candidate a different number of votes and
the difference affects the result of the election, the Court
of First Instance of the province, upon motion of the board
or of any candidate affected, may proceed to recount the
votes cast in the precinct for the sole purpose of
determining which is the true statement or which is the
true refuse of the count of the votes cast in said precinct
for the office in question. Notice of such proceeding shall
be given to all candidates affected (C.A. 357-158)
[Emphasis supplied].
The Election Code of 1971 (R.A. No. 6388) also provides:
Sec. 206. Recounting of votes. In case it appears to the
board of canvassers that there exists discrepancies in two
or more authentic copies of election returns, other than the
copies furnished the political parties from an election
precinct or discrepancies in the votes of any candidate in
words and figures in the same return and in either case,
the difference affects the result of the election, the proper
Court of First Instance, upon motion of the board or of any
candidate affected and after due notice to all candidates
concerned shall proceed summarily to determine whether
the integrity of the ballot box had been preserved and once
satisfied thereof shall order the opening of the ballot box to
recount the votes cast in the precinct solely for the

purpose of determining the true result of the count of votes

of the candidates concerned: Provided, however, That if
upon the opening of the ballot box it should appear that
there are evidences or signs of replacement or tampering
of the ballot, the Court shall not recount the ballots but
shall forthwith seal the ballot box and deliver the same to
the Commission for safekeeping (emphasis supplied).
Whereas, Section 174 of the 1978 Election Code provides:
Section 174. Discrepancies in election returns. In case it
appears to the board of canvassers that there exists
discrepancies in the other authentic copies of the election
returns from a voting center or discrepancies in the votes
of any candidate in words and figures in the same return
and in either case, the difference affects the results of the
election, the Commission upon motion of the board of
canvassers or any candidate affected and after due notice
to all candidates concerned, shall proceed summarily to
determine whether the integrity of the ballot box had been
preserved and once satisfied thereof, shall order the
opening of the ballot box to recount the votes cast in the
voting center solely for the purpose of determining the true
result of the count of votes of the candidates concerned:
Provided, however, That if upon the opening of the ballot
box it should appear that there are evidences or signs or
replacement or tampering of the ballots, the Commission
shall not recount the ballots but shall forthwith seal the
ballot box and order its safekeeping (emphasis supplied).
Petitioners in asserting the non-applicability of the Aratuc case, supra, and
the Diaz case, supra, pointed out that in the above cases cited by private
respondent Lirio, "massive substitution of voters, failure of actual voting
and almost 100% voters turn out in certain voting centers impelled the
Supreme Court to issue the guidelines for the canvass of votes"
(Petitioners' Memorandum, p. 18).
Suffice it to reiterate that in the petition and supplementary petition filed
by respondents Lirio, et al., they charged, among other things, that fake
voters numbering about 2,776 persons in 68 voting centers out of the 102
voting centers of Tanauan (approximately 66%), allegedly with fake Ids
and/or with fake identification slips, were allowed to vote in the January 30,
1980 elections, and that these votes have been reflected in the returns. As
correctly advanced by respondent Commission, said election returns would

not reflect the true will of the electorate And considering that the
difference in the number of votes garnered by petitioner Sotero Olfato over
private respondent Francisco E. Lirio is only about 1,579, the number of
votes in the aforesaid questioned returns could materially affect the result
of the elections. That the precariousness of the alleged winning margin of
petitioner Olfato over respondent Lirio can be gleaned from the totality of
the votes contested is therefore beyond doubt.
An examination of the official list of registered voters in the remaining 34
voting centers may reveal additional fake votes allowed to vote, to
aggravate the election irregularity.
Petitioners also argued that private respondent cannot now raise for the
first time in a petition to annul proclamation the alleged spuriousness or
falsity of the election returns since no objection to the canvass of the
election returns had ever been made before the Municipal Board of
Canvassers.
Much reliance has been made by the petitioners on the ruling of this Court
declaring that "all questions regarding the returns should be initially raised
before the Board of canvassers, subject to appeal from its decision to the
COMELEC (Anni vs. Rasul, No. L-34904, Aug. 30, 1972, 46 SCRA 758, 769;
citing Moore vs. COMELEC, 31 SCRA 60, 67 [1970]).
But there was compliance with the aforesaid rule, when respondent Lirio
filed with the Comelec on February 2, 1980, three days before the
proclamation of petitioners on February 5, 1980, the petition (P.P. No. 118)
to suspend the canvass and proclamation of petitioners, making the
Municipal Board of Canvassers a respondent, which was then notified of
the challenge raised by respondent Lirio.
It may appropriate to note here that said ruling applies to cases where the
irregularities of the election returns are patent upon their faces, which
makes it incumbent upon the aggrieved candidates to raise their objection
before the Board of Canvassers. The rationale of the above doctrine has
been aptly explained by this Court through Justice Conrado Sanchez in the
case of Abrigo vs. COMELEC (No. L-31374, Jan. 21, 1970, 31 SCRA 26, 35,
36. Thus 8:
... After the preparation of the election returns by the board
of inspectors, the next step outlined by the law is the
canvass thereof by the canvassing board. It is before this
body that a candidate must present any question regarding

the election returns ... The law envisions that while the
board is doing its work is canvassing the election returns
and tallying the results, its attention should be called to
any question which could affect its work. The board should
be given an opportunity, as Section 163 (now Section 174)
plainly directs, to decide whether on the existence or nonexistence of discrepancy to defer the canvass or to
continue with it. After all, it is upon this body that the duty
to canvass is reposed. This function, it would seem to us
complements its authority to canvass only election returns
which are in due form and to exclude those which are
obviously manufactured or palpably irregular (emphasis
supplied).
It is only then after the Board of Carvassers has passed upon the objection
when the Comelec will exercise its appellate jurisdiction.
It must be observed further, that there is no plausible reason to prohibit an
aggrived candidate from filing an objection regarding the election returns
directly, before the Comelec itself if the election irregularities that vitiate
the integrity of the election returns are not apparent upon their faces.
What is therefore involved is the original jurisdiction of the Comelec rather
than its appellate jurisdiction for precisely the objection is filed not before
the Board of Canvassers because the irregularities are not apparent upon
the face of the election returns.
The reason is obvious "the board of canvassers exists for a specific
function that is, to canvass the result of the elec- tion as shown in the
election returns and to proclaim the winning candidates. Once this specific
function had been perform- ed the existence of the board of canvassers is
ended or terminated (Aquino vs. COMELEC, L-28392, Jan. 29, 1968, cited in
Pelayo, Jr. vs. COMELEC, No. L-28869, June 29, 1968,23 SCRA 1374, 1386).
And it is more within the powers of the Comelec, being the "sole judge of
all pre-proclamation controversies", to determine the circumstances that
stamp the election returns with the indelible mark of falsity.
At any rate, as heretofore stated, private respondent Lirio filed his petition
for suspension of canvass and of proclamation against the Municipal Board
of Canvassers of Tanauan and the petitioners on February 2, 1980 or three
days before petitioners were proclaimed and before the termination of the
canvass. The same may therefore be considered as a formal objection to
the integrity of the election returns based on fake votes.

Not even the rule of "expression unius est exclusion alterius" will carry the
day for the petitioners. "Where a statute appears on its face to limit the
operation of its provisions to particular persons or things by enumerating
them, but no reason exists why other persons or things not so enumerated
should not have been included, and manifest injustice will follow, by not so
including them, the maxim 'expression unius est exclusion alterius', should
not be invoked" (Blevins vs. Mullaly 135 p. 307, 22 Cal. App. 519, cited in
People vs. Manantan, No L-14129, July 31, 1962, 115 Phil. 657, 668-669).
The rule of 'expression unius est exclusion alterius' shall be
applied only as a means of discovering the legislative
intent which is not otherwise manifest and shall never be
permitted to defeat the plainly indicative purpose of the
legislature (82 C.J.S. p. 668).
Moreover, "the cardinal rule of statutory construction requires the court to
give effect to the general legislative intent if that can be discovered within
the four corners of the Act. When the object intended to be accomplished
by the statute is once clearly ascertained general words may be restrained
to it and those of narrower import may be expanded to embrace it, to
effectuate the intent" (Borromeo vs- Mariano, 41 Phil. 322, cited in Martin,
G.R. Statutory Construction, Revised Ed., p. 46).
The Courts should give the statute a reasonable or liberal
construction which will best effect its purpose rather than
one which will defeat it (82 C.J.S., p. 593) even though such
construction is not within the strict literal interpretation of
the statute (In re Marshall, 69 .. 2d, p. 619, cited in Martin,
G.R., Statutory Construction, Revised Ed., p. 67).
Thus, cases will frequently be found enunciating the
principle that the intent of the legislature win govern U.S.
vs. Corbet 215, U.S. 233). It is to be noted that a strict
construction should not be permitted to defeat the policy
and purposes of the statute (Ash Sheep Co. vs. U.S. 252
U.S. 159). The court may consider the spirit and reason of
a statute, as in this particular instance, where a literal
meaning would defeat the clear purpose of the law makers
(Crawford,
Interpretation of Laws,
Manantan, supra, p. 665).

Sec.

78,

p.

294,

cited

in

(People

vs.

Finally, petitioners, in assailing the jurisdiction of respon dent Comelec,

argue that the electoral protest filed by respon dent Lirio before the Court
of First Instance of Batangas deprived the Comelec of its jurisdiction over
P.P. Case No. 118.
But the records amply show that private respondent's tion for suspension
of canvass and of proclamation was earlier filed on February 2, 1980,
whereas the electoral protest was filed before the Court of First Instance of
Batangas on February 15, 1980. Evidently the electoral protest was filed by
Lirio to preserve his right in The event the prayers he sought in P.P. Case
No. 118 would not be granted as said electoral protest bore the character
of an ex abundante ad cautela Thus the footnote of said electoral protest
reads:
Protestant has petition with the COMELEC for the
annulment of the proclamation of the protestee because
the COMELEC has only suspended the effects of the
proclamation, this protest is being filedex abundante ad
cautela p. 106, rec.).
The second issue raised by petitioners is that Comelec acted in excess of
its jurisdiction and with grave abuse of discretion in reinstating respondent
Lirio's petition for the annulment of petitioners' proclamation.
WE cannot fault respondent Commission if in the course of its search for
the solutions to the problems posed by the numerous cases brought before
it, characterized by multifarious and oftentimes confusing charges and
counter-charges, it committed a mistake in its choice of solutions.
Respondent Commission cannot be charged with being guilty of an
"omission to weigh pertinent considerations" nor the blunder of rendering a
"decision arrived at without rational deliberation". Precisely, the
reinstatement of respondent Lirio's petition, affords the parties full hearing
on the issues raised by said petition to avoid any injustice to either party.
Certainly, the error, if any, does not amount to grave abuse of discretion.
Petitioners likewise charged that respondent Commission is guilty of
discrimination in the application of its rules. The charge is anchored on the
alleged conflicting decisions made by respondent Comelec in the Leviste
petition and the Lirio petition, notwithstanding the alleged identity of
circumstances in both cases.
WE do not agree, for aside from the claim of private respon dent Lirio that
the fake voters involved in their (private respondents') petition were

quantified unlike the Leviste petition, it would be improper to presume

irregularity in the performance of official acts on the part of the Comelec. It
must be noted that not only did respondent Lirio and his co-petitioners in
P.P. Case No. 118 charge alleged election irregularities but also adduced
evidence to prove the existence of said election irregularities. Hearing with
due notice to the parties was conducted on March 1, 1980, after which
respondent Commission "after considering the comments of the
respondents, as well as the oral arguments of both parties at the hearing"
promulgated the questioned resolution (Resolution No. 9558, amending
Resolution No. 9306). Respondent Commission therefore, had the occasion
to exercise its discretion in both petitions and it has not been shown that it
committed such a capricious and whimsical exercise of discretion
amounting to lack of jurisdiction or to grave abuse of discretion.
... [I]n the performance of its constitutional duty of insuring
free, orderly and honest elections the COMELEC possess
wide latitude of discretion which, unless shown to have
been exercised in an arbitrary or improvident manner,
which not be interfered with by this Court (Ligot vs.
COMELEC, No. L-31380, Jan. 21, 1970, 31 SCRA 45,47).
WE are more inclined to presume that respondent Commission in
proceeding summarily with the Leviste petition and the Lirio petition, acted
regularly or indiscriminately in the application of its rules. In the aforesaid
Resolution No. 9558, although silent as to what transpired during the
hearing, it can be safely presumed that with due observance of the basic
rules of due process, respondent Commission indeed heard the basic
contentions of both sides, which includes necessarily the contention of
respondent Lirio that election irregularities affecting the authenticity and
integrity of the election returns were committed. That respondent
Commission issued the question- ed resolution with due consideration on
the matter, is a presumption that would be in accord with the basic rules
on presumption of regularity of official acts. Thus, as aptly stated by this
Court through Justice Antonio Barredo in the above-cited case of Aratuc vs.
COMELEC, supra:
Such, to Our mind, is the constitutional scheme relative to
the Commission on Elections. Conceived by the charter as
the effective instrument to preserve the sanctity of popular
suffrage, endowed with independence and in the needed
concomitant powers, it is but proper that the Court should
accord the greatest measure of presumption of regularity
to its course of action and choice of means in performing
its duties, to the end that it may achieve its designed place

in the democratic fabric of our government. Ideally, its

members should be free from all suspicions of partisan
inclinations, ... (emphasis supplied).
The last issue raised by petitioners during the hearing is that respondent
Commission on Elections in questioning the alleged fake voters with fake
Ids and/or fake Identification slips violated the constitutional provision
prohibiting said Commission to decide questions involving the right to vote.
It is true that questions involving the right to vote is not within the ambit of
the Comelec as mandated by the constitution. Thus, paragraph 3, Section
2, Article XII (c) of the 1973 Constitution, specifically provides:
Sec. 2. The Commission on Elections shall have the
following powers and functions:
(1) xxx.
(2) xxx.
(3) Decide, save those involving the right to vote,
administrative questions affecting elections, including the
determinate tion of the number and location of polling
places, the appointment of election officials and inspectors
and the registration of voters (emphasis supplied).
Likewise, it was held in the case of Nacionalista Party vs. Comelec, supra,
that "... the power to decide questions involving the right to vote is
provided in the Election Law, the enforcement and administration of which
is placed in the exclusive charge of the Commission" (85 Phil. 149, 156).
WE cannot agree with petitioners that respondent Commission has trodden
into the forbidden scope of questions involving the right to vote. It must be
observed that preparation of election forms or documents such as
registration records in the issuance of voters' Ids or Identification slips are
functions exercised by the Commission on Elections in the enforcement
and administration of election laws. If unscrupulous individuals however,
resorted to election anomalies such as issuance of fake voter's Ids and/or
fake Identification slips or resorted to misrepresentation before the election
registrar to subvert the will of the electorate, an inquiry conducted by the
Comelec as to the commission of such election anomalies does not violate
the above-said constitutional prohibition. It is when within the powers of
the Commission on Elections. If, however, in the course of its inquiry
conducted to determine the commission of election anomalies regarding

the preparation of false or fake election documents, persons possessed

with such spurious documents and who participated in the voting are
identified or their number determined, the Commission on Elections does
not thereby pass upon the right to vote of a duly registered and genuine
voter.
It is significant to note that Resolution No. 9558 is not final and definitive in
character as it only considered the proclamation tion in favor of petitioners
as temporary in nature as it was made subject to the final outcome of P.P.
Case No. 118.
The resultant delay that may be caused by the remand of this case to the
respondent Commission is eclipsed by its paramount purpose of
ascertaining the true will of the electorate in P.P. Case No. 118; so that one
of the contending parties may be duly proclaimed and thereafter assume
office, subject only to the outcome of the regular election protest that the
losing party may, after the proceedings before the Comelec, pursue.
WHEREFORE, THE PRESENT PETITION IS HEREBY DISMISSED. RESPONDENT
COMMISSION ON ELECTIONS IS HEREBY ORDERED TO PROCEED IN P.P.
CASE NO. 118 WITH DISPATCH. NO COSTS.
SO ORDERED.
Barredo, Concepcion, Jr., Fernandez, Guerrero, De Castro and MelencioHerrera, JJ., concur.
Abad Santos, J., took no part.

PIMENTEL vs. COMELEC

DECISION

Chairpersons of the MBOCs-Maguindanao regarding the due execution and

authenticity of the Maguindanao MCOCs, Pimentels counsel manifested her
continuing objection to the canvassing of the said MCOCs. In particular,
Pimentels counsel objected to the Maguindanao MCOCs because:

CHICO-NAZARIO, J.:

a)

the proceedings were illegal;

On 4 July 2007, petitioner Aquilino L. Pimentel III (Pimentel) filed

the present Petition for Certiorari and Mandamus (with Urgent Prayer for
Temporary Restraining Order and/or Status Quo Ante Order).[1]

b)

the MCOCs were palpably manufactured;

The Petition stemmed from the 14 May 2007 national elections for
12 senatorial posts. At the time of filing of the Petition, around two months
after the said elections, the 11 candidates with the highest number of
votes had already been officially proclaimed and had taken their oaths of
office as Senators. With other candidates conceding, the only remaining
contenders for the twelfth and final senatorial post were Pimentel and
private respondent Juan Miguel F. Zubiri (Zubiri). Public respondent
Commission on Elections (COMELEC) en banc, acting as the National Board
of Canvassers (NBC), continued to conduct canvass proceedings so as to
determine the twelfth and last Senator-elect in the14 May 2007 elections.

c)

the results reflected

statistically improbable;

d)

there is no basis for saying the MCOCs were

authentic because there were no other available
copies for comparison purposes;

e)

in

the MCOCs were

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

f)

there was no evidence or indication that the

copy 2 MCOCs had been posted as intended by
law;

Pimentel assailed the proceedings before the NBC and its

constituted
Special
Provincial
Board
of
Canvassers
for Maguindanao (SPBOC-Maguindanao) in which the Provincial and
Municipal
Certificates
of
Canvass
(PCOC
and MCOCs)
from
the province of Maguindanao were respectively canvassed.

g)

the serial numbers of the MCOCs are not

clearly stamped;

h)

copy 2 of the MCOCs cannot be used for

canvass;

The SPBOC-Maguindanao was created because the canvass

proceedings held before the original Provincial Board of Canvassers
for Maguindanao (PBOC-Maguindanao), chaired by Provincial Election
Supervisor (PES) Lintang Bedol, were marred by irregularities, and the
PCOC (Bedol PCOC) and other electoral documents submitted by the said
PBOC-Maguindanao were
tainted
with
fraud
and
statistical
improbabilities. Hence, the Bedol PCOC was excluded from the national
canvass then being conducted by the NBC.

i)

that the MCOCs are therefore,

unworthy and unfit for canvass;

j)

that the manner the re-canvassing which was

being done where the parties are not allowed to
ask questions was patently illegal; and

k)

that it has not been established that the other

copies of the MCOCs have been lost.[2]

Task Force Maguindanao, headed by COMELEC Chairman Benjamin

S. Abalos, Sr. and Commissioner Nicodemo T. Ferrer, retrieved and
collected 21 MCOCs from the municipalities of Maguindanao, mostly copy
2, or the copy intended to be posted on the wall. The SPBOCMaguindanao was then tasked to re-canvass the MCOCs submitted by Task
Force Maguindanao. The re-canvassing of the Maguindanao MCOCs was
conducted
by
the
SPBOC-Maguindanao from
25
to 26
June
2007 at Shariff Aguak, Maguindanao.Although
PES Bedol and
the
Chairpersons
of
the
Municipal
Boards
of
Canvassers
of Maguindanao (MBOCs-Maguindanao) were present during the canvass
proceedings before the SPBOC-Maguindanao, the candidates legal counsels
were not allowed to ask them any questions. Due to the consistent denial
by the SPBOC-Maguindanao of the repeated and persistent motions made
by Pimentels counsel to propound questions to PES Bedol and the

improper,

All of the foregoing observations, manifestations, and objections made by

Pimentels counsel, as well as those made by the other candidates
counsels, were simply noted by the SPBOC-Maguindanao without specific
action thereon.
On 29 June 2007, the SPBOC-Maguindanao submitted to the NBC
the second PCOC for Maguindanao. In the proceedings before the NBC,
Pimentels counsel reiterated her request to propound questions to
PES Bedol and the Chairpersons of the MBOCs-Maguindanao and the
SPBOC-Maguindanao. The NBC, however, refused to grant her
request. Pimentels counsel thereafter moved for the exclusion of the
second Maguindanao PCOC from the canvass, maintaining that the said

PCOC did not reflect the true results of the elections because it was based
on the manufactured Maguindanao MCOCs, the authenticity and due
execution of which had not been duly established. The motion to exclude
made by Pimentels counsel was once again denied by the NBC, and she
was ordered to sit down or she would be forcibly evicted from the session
hall. The secondMaguindanao PCOC was thus included in the canvass
proceedings conducted by the NBC and, resultantly, Pimentels lead
over Zubiri was significantly reduced from 133,000 votes to only 4,000
votes.

of Maguindanao, until further orders from this Court, or, in

the alternative, in the event that the proclamation of
Respondent Zubiri is made before the application for a TRO
is
acted
upon, ISSUE
A
STATUS
QUO
ANTE
ORDER requiring the parties to observe the status quo at
the time of the filing of the Petition, in order to maintain
and preserve the situation of the parties at the time of the
filing of this Petition, so as not to render the issues raised
in this Petition moot and academic;

Pimentel averred that said canvass proceedings were conducted by

the NBC and SPBOC-Maguindanao in violation of his constitutional rights to
substantive and procedural due process and equal protection of the laws,
and in obvious partiality to Zubiri. Pimentel thus filed the Petition at bar
on 4 July 2007, anchored on the following grounds:

2. After proper proceedings, RENDER JUDGMENT:

(a) ANNULLING AND SETTING ASIDE for being
unconstitutional and illegal the proceedings and acts of
respondent Commission on Elections en banc sitting as the
National Board of Canvassers for Senators for the May 14,
2007 elections (NBC) of including, on June 29, 2007, in the
national canvass of votes for Senators the results from the
Province of Maguindanao as reflected in its new/second
Provincial Certificate of Canvass as well as the proceedings
and acts of the respondent Special Provincial Board of
Canvassers for Maguindanao (SPBOC) in canvassing or recanvassing the collected MCOCs, on June 25, 26 and 27,
2007, leading to the preparation of the new/second PCOC
for Maguindanao,
and (b)
COMPELLING
or
ORDERING respondent NBC and its deputy, the SPBOC, to
perform their ministerial constitutional duty of fully
determining the due execution and authenticity of
the MCOCs, including, but not limited to, allowing
petitioner [Pimentel] to substantiate his claim of
manufactured results and propound questions to the
officers concerned, primarily, the Chairpersons of the
former PBOC and SPBOC of Maguindanao and the
Chairpersons of the Municipal Boards of Canvassers
of Maguindanao.

I.

The petitioner [Pimentel] was denied his right

to due process of law when the respondent SPBOC
and
the
respondent
NBC
adopted
an
unconstitutional procedure which disallowed the
petitioner [Pimentel] the opportunity to raise
questions on the COCs subject of the canvass.

II.

The petitioner [Pimentel] was denied his right

to equal protection of the law when the respondent
SPBOC and the respondent NBC unconstitutionally
adopted a procedure of no questions in the
canvass of COCs from Maguindanao, different from
the procedure adopted in the canvass of COCs from
other provinces/areas.

III.

The respondent NBC acted with manifest grave

abuse of discretion when it refused to exercise its
broad, plenary powers in fully or accurately
ascertaining due execution, authenticity and
fitness for the canvass of the MCOCs collected by
the Comelec in the exercise of such broad plenary
powers. It violated its own rules when it deprived
petitioner [Pimentel] of the right to ventilate and
prove his objections to the Maguindanao COCs.[3]

Pimentel seeks from this Court the following remedies:

1. Forthwith ISSUE A TEMPORARY RESTRAINING
ORDER enjoining the respondent Commission on Elections
en banc sitting as the National Board of Canvassers for
Senators for the May 14, 2007 elections (NBC) from
proceeding with any proclamation (of the twelfth and last
winner of the May 14, 2007 Elections for Senators) based
on the on-going senatorial canvass which includes the
new/second
Provincial
Certificate
of
Canvass

Petitioner [Pimentel] also prays for other reliefs,

just and equitable, under the premises.[4]
Pursuant to the Resolution[5] dated 10 July 2007 issued by this
Court, Zubiri filed his Comment[6] on the Petition at bar on 12 July 2007;
while the NBC and SPBOC-Maguindano, chaired by Atty. Emilio S. Santos,
filed their joint Comment[7] on even date. The respondents Zubiri, NBC, and
SPBOC-Maguindanao collectively sought the denial of Pimentels application
for Temporary Restraining Order (TRO) and/or Status Quo Ante Order and
the dismissal of the instant Petition.
Pimentels prayer for the issuance of a TRO and/or Status Quo
Ante Order was set for oral arguments on 13 July 2007. After hearing the
parties oral arguments, the Court voted seven for the grant and seven for
the denial of Pimentels prayer for the issuance of a TRO and/or Status Quo

Ante Order; thus, said prayer was deemed denied for failure to garner the
required majority vote. The parties were then directed to submit their
respective Memoranda, after which, the case would be deemed submitted
for resolution.[8] All the parties complied, with Zubiri submitting his
Memorandum[9] on 31 July 2007; Pimentel,[10] on 1 August 2007; and the
NBC and SPBOC-Maguindanao,[11] on 10 August 2007.
In the meantime, without any TRO and/or Status Quo Ante Order
from the Court, the canvass proceedings before the NBC continued, and by
14 July 2007, Zubiri (with 11,004,099 votes) and Pimentel (with 10,984,807
votes) were respectively ranked as the twelfth and thirteenth Senatorial
candidates with the highest number of votes in the 14 May 2007
elections. Since the NBC found that the remaining uncanvassed certificates
of canvass would no longer materially affect Zubiris lead of 19,292 votes
over Pimentel, it issued Resolution No. NBC 07-67, [12] dated 14 July 2007,
proclaiming Zubiri as the twelfth duly elected Senator of the Philippines in
the 14 May 2007 elections, to serve for a term of six years beginning 30
June 2007 in accordance with the provisions of the Constitution.

filed his Petition before this Court prior to the proclamation ofZubiri as
Senator. Moreover, Pimentel asserted that his Petition questioned
not Zubiris proclamation, but the conduct of the canvass proceedings
before the NBC and SPBOC-Maguindanao. He maintained that his case was
one of first impression and no existing jurisprudence could be used as
precedent for its summary dismissal. Pimentel then reiterated his
arguments in his Memorandum that Sections 37 and 38 of Republic Act No.
9369,[17] amending Sections 30 and 15 of Republic Act No. 7166,
[18]
respectively, significantly affected and changed the nature of canvass
proceedings, the nature of the duty of canvassing boards, and the extent
of allowable pre-proclamation controversies in Senatorial elections. Based
on the foregoing, Pimentel prayed for the denial of Zubiris Motion to
Dismiss.
After a close scrutiny of the allegations, arguments, and evidence
presented by all the parties before this Court, this Court rules to dismiss
the present Petition.
Pre-proclamation controversy/case

On 19 July 2007, Zubiri filed with this Court a Manifestation with

Motion to Dismiss.[13] Zubiri sought the dismissal of the Petition at bar
arguing that, in consideration of his proclamation pursuant to Resolution
No. NBC 07-67 and his formal assumption of office on 16 July 2007,
controversies involving his election and qualification as a Senator are now
within the exclusive jurisdiction of the Senate Electoral Tribunal (SET).
Zubiri further informed the Court through a Manifestation, [14] dated
16
August
2007,
that
Pimentel
filed
an
Election
Protest
(Ex Abudante Ad Cautelam) before the SET on 30 July 2007, docketed as
SET Case No. 001-07, to which Zubiri filed his Answer Ad Cautelam (With
Special Affirmative Defenses, Counter-Protest and Petition for a Preliminary
Hearing on the Affirmative Defenses) on 13 August 2007. In his election
protest, Pimentel prays, among other remedies, for the annulment
of Zubiris proclamation as the twelfth winning Senator in the 14 May
2007 elections. Zubiri called the attention of the Court to the glaring reality
that with G.R. No. 178413 before this Court and SET Case No. 001-07
before the SET, there are now two cases involving the same parties with
practically the same issues and similar remedies sought filed before the
two (2) separate courts/tribunals. Zubiri also pointed out Pimentels
ostensible failure to inform this Court of his institution of SET Case No. 00107 and the subsequent developments therein.
On 23 August 2007, Pimentel filed before this Court his
Comment/Opposition (to Private Respondents Manifestation with Motion to
Dismiss).[15] Pimentel alleged thatZubiris Motion to Dismiss solely relied
on Aggabao v. Commission on Elections. [16] However, Pimentel argued
that Aggabao cannot be applied to the instant Petition because of the
difference in the factual backgrounds of the two cases. In Aggabao, therein
petitioner Aggabao filed his Petition before this Court after the
proclamation of therein private respondent Miranda as Congressman for
the Fourth District of Isabela; while in the present case, Pimentel already

A
pre-proclamation
controversy
has
been
defined
by
Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code
of the Philippines, as follows:
SEC.
241. Definition.
A
pre-proclamation
controversy is any question pertaining to or affecting the
proceeding of the board of canvassers which may be raised
by any candidate or by any registered political party or
coalition of political parties before the board or directly
with the Commission, or any matter raised under Sections
233, 234, 235 and 236 in relation to the preparation,
transmission, receipt, custody and appearance of the
election returns.
Under Republic Act No. 7166, providing for synchronized national and local
elections, pre-proclamation controversies refer to matters relating to the
preparation, transmission, receipt, custody and appearance of election
returns and certificates of canvass.[19]
Essentially reiterating Section 243 of the Omnibus Election Code, but
adding the reference to the certificates of canvass, COMELEC Resolution
No. 7859, dated 17 April 2007, identified the issues that may be subject of
a pre-proclamation controversy, to wit:
SEC. 37. Issues that may be raised in preproclamation controversy. The following shall be proper
issues that may be raised in a pre-proclamation
controversy:

1) Illegal composition or proceedings of the Board

of Canvassers;

brought in the first instance before the board of canvassers

only.

2) The canvassed election returns/certificates of

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

However, as to elections for President, Vice-President, Senators, and

Members of the House of Representatives, pre-proclamation cases are
prohibited. Section 15 of Republic Act No. 7166, prior to its amendment,
read:

3) The election returns/certificates of canvass were

prepared under duress, threats, coercion, or intimidation,
or they are obviously manufactured or not authentic; and
4) When
substitute
or
fraudulent
election
return/certificates of canvass were canvassed, the results
of which materially affected the standing of the aggrieved
candidate or candidates.
Pre-proclamation cases to resolve pre-proclamation controversies
are allowed in local elections. According to Section 16 of Republic Act No.
7166:
SEC.
16. Pre-proclamation
Cases
Involving
Provincial, City and Municipal Offices. Pre-proclamation
cases involving provincial, city and municipal officer shall
be allowed and shall be governed by Sections 17, 18, 19,
20, 21 and 22 hereof.
All pre-proclamation cases pending before the
Commission shall be deemed terminated at the beginning
of the term of the office involved and the rulings of the
boards of canvassers concerned shall be deemed affirmed,
without prejudice to the filing of a regular election protest
by the aggrieved party. However, proceedings may
continue when on the basis of the evidence thus far
presented, the Commission determines that the petition
appears meritorious and accordingly issues an order for the
proceeding to continue or when an appropriate order has
been issued by the Supreme Court in a petition for
certiorari.
SEC. 17. Pre-proclamation Controversies: How
Commenced. Questions affecting the composition or
proceedings of the board of canvassers may be initiated in
the board or directly with the Commission. However,
matters raised under Sections 233, 234, 235 and 236 of
the Omnibus Election Code in relation to the preparation,
transmission, receipt, custody and appreciation of the
election returns, and the certificates of canvass shall be

SEC. 15. Pre-proclamation Cases Not Allowed in

Elections for President, Vice-President, Senator, and
Member of the House of Representatives. For purposes of
the elections for President, Vice-President, Senator, and
Member of the House of Representatives, no preproclamation cases shall be allowed on matters relating to
the preparation, transmission, receipt, custody and
appreciation of the election returns or the certificates of
canvass, as the case may be. However, this does not
preclude the authority of the appropriate canvassing
body motu propioor upon written complaint of an
interested person to correct manifest errors in the
certificate of canvass or election returns before it.
Questions affecting the composition or proceedings
of the board of canvassers may be initiated in the board or
directly with the Commission in accordance with Section 19
hereof.
Any objection on the election returns before the
city or municipal board of canvassers, or on the municipal
certificates of canvass before the provincial board of
canvassers or district boards of canvassers in Metro Manila
Area, shall be specifically noted in the minutes of their
respective proceedings.
As Section 15 of Republic Act No. 7166 was then worded, it would
appear that any pre-proclamation case relating to the preparation,
transmission, receipt, custody and appreciation of election returns or
certificates of canvass, was prohibited in elections for President, VicePresident, Senators and Members of the House of Representatives. The
prohibition aims to avoid delay in the proclamation of the winner in the
election, which delay might result in a vacuum in these sensitive
posts. Proceedings which may delay the proclamation of the winning
candidate beyond the date[20] set for the beginning of his term of office
must be avoided, considering that the effect of said delay is, in the case of
national offices for which there is no hold over, to leave the office without
any incumbent.[21]
The law, nonetheless, recognizes an exception and allows the
canvassing body motu proprio or an interested person to file a written

complaint for the correction of manifest errors in the election returns or

certificates of canvass even in elections for President, Vice-President,
Senators and Members of the House of Representatives, for the simple
reason that the correction of manifest error will not prolong the process of
canvassing nor delay the proclamation of the winner in the election. [22] To
be manifest, the errors must appear on the face of the certificates of
canvass or election returns sought to be corrected and/or objections
thereto must have been made before the board of canvassers and
specifically noted in the minutes of their respective proceedings. [23] The law
likewise permits pre-proclamation cases in elections for President, VicePresident, Senators and Members of the House of Representatives, when
these cases question the composition or proceedings of the board of
canvassers before the board itself or the COMELEC, since such cases do
not directly relate to the certificate of canvass or election returns.
Section 15 of Republic Act No. 7166, after the amendment
introduced by Republic Act No. 9369, now reads:
SEC. 15. Pre-proclamation Cases in Elections for
President, Vice-President, Senator, and Member of the
House of Representatives. For purposes of the elections for
president, vice-president, senator, and member of the
House of Representatives, no pre-proclamation cases shall
be allowed on matters relating to the preparation,
transmission, receipt, custody and appreciation of election
returns or the certificates of canvass, as the case may
be, except
as
provided
for
in
Section
30
hereof. However, this does not preclude the authority of
the appropriate canvassing body motu propio or upon
written complaint of an interested person to correct
manifest errors in the certificate of canvass or election
returns before it.
Questions affecting the composition or proceedings
of the board of canvassers may be initiated in the board or
directly with the Commission in accordance with Section 19
hereof.
Any objection on the election returns before the
city or municipal board of canvassers, or on the municipal
certificates of canvass before the provincial board of
canvassers or district board of canvassers in Metro Manila
Area, shall be specifically noticed in the minutes of their
respective proceedings. (Emphasis supplied.)
Republic Act No. 9369 significantly amended Section 15 of Republic Act No.
7166 by adding an excepting phrase to the general prohibition against preproclamation controversies in elections for President, Vice-President,
Senators and Members of the House of Representatives. According to the
amended Section 15, no pre-proclamation cases on matters relating to the

preparation, transmission, receipt, custody and appreciation of election

returns or the certificates of canvass shall be allowed in elections for
President, Vice-President, Senators and Members of the House of
Representatives, except as provided by Section 30 of the same statute.
Section 30 of Republic Act No. 7166, which was likewise amended by
Republic Act No. 9369, provides:
SEC. 30. Congress as the National Board of
Canvassers for the Election of President and Vice
President: The Commission en banc as the National
Board
of
Canvassers
for
the
election
of
senators: Determination
of
Authenticity
and
Due
Execution of Certificates of Canvass. Congress and the
Commission en banc shall determine the authenticity
and due execution of the certificate of canvass for
president and vice-president and senators, respectively,
as accomplished and transmitted to it by the local board of
canvassers, on a showing that: (1) each certificate of
canvass was executed, signed and thumbmarked by the
chairman and members of the board of canvassers and
transmitted or caused to be transmitted to Congress by
them; (2) each certificate of canvass contains the names of
all of the candidates for president and vice-president or
senator, as the case may be, and their corresponding
votes in words and figures; (3) there exists no discrepancy
in other authentic copies of the certificates of canvass or
in any of its supporting documents such as
statement
of
votes
by
city/municipality/by
precinct or discrepancy in the votes of any candidate in
words and figures in the certificate; and (4) there exists
no discrepancy in the votes of any candidate in
words and figures in the certificate of canvass
against the aggregate number of votes appearing in
the election returns of precincts covered by the
certificate of canvass: Provided, That certified print
copies of election returns or certificates of canvass
may be used for the purpose of verifying the
existence of the discrepancy.
When the certificate of canvass, duly certified by
the board of canvassers of each province, city or district,
appears to be incomplete the Senate President or the
Chairman of the Commission, as the case may
be shall require the board of canvassers concerned to
transmit by personal delivery the election returns from
polling places that were not included in the certificate of
canvass and supporting statements. Said election returns
shall be submitted by personal delivery within two (2) days
from receipt of notice.

When it appears that any certificate of canvass or

supporting statement of votes by city/municipality or by
precinct bears erasures or alterations which may cast
doubt as to the veracity of the number of votes stated
herein and may affect the result of the election, upon
request of the presidential, vice-presidential or senatorial
candidate concerned or his party, Congress or the
Commission en banc, as the case may be, shall, for
the sole purpose of verifying the actual number of votes
cast for President and Vice-President or senator, count the
votes as they appear in the copies of the election returns
submitted to it.
In case of any discrepancy, incompleteness,
erasure or alteration as mentioned above, the
procedure on pre-proclamation controversies shall
be adopted and applied as provided in Sections 17,
18, 19 and 20.
Any person who presents in evidence a
simulated copy of an election return, certificate of
canvass or statement of votes, or a printed copy of
an election return, certificate of canvass or
statement of votes bearing a simulated certification
or a simulated image, shall be guilty of an election
offense and shall be penalized in accordance with
Batas PambansaBlg. 881. (Emphasis supplied.)
The highlighted portions in the afore-quoted section identify the
amendments introduced by Republic Act No. 9369, specifically: (1) the duty
to determine the authenticity and due execution of certificates of canvass
is now imposed, not only on Congress acting as the NBC for the election for
President and Vice-President, but also on COMELEC en banc acting as the
NBC for the election for Senators; (2) the third criterion for the
determination of the authenticity and due execution of the certificates of
canvass requires the absence of discrepancy in comparison not only with
other authentic copies of the said certificates, but also with the supporting
documents, such as the statements of votes; (3) a fourth criterion for the
determination of the authenticity and due execution of the certificates of
canvass was added, mandating the absence of discrepancy between the
number of votes of a candidate in a certificate when compared with the
aggregate number of votes appearing in the election returns of the
precincts covered by the same certificate; (4) pursuant to the exception
now provided in Section 15 of Republic Act No. 7166, as amended by
Republic Act No. 9369, permissible pre-proclamation cases shall adopt and
apply the procedure provided in Sections 17 to 20 of the same statute; and
(5) the use of a simulated copy of an election return, certificate of canvass,
or statement of vote, or a printed copy of said election documents bearing
a simulated certification or image shall be penalized as an election offense.

Indeed, this Court recognizes that by virtue of the amendments

introduced by Republic Act No. 9369 to Sections 15 and 30 of Republic Act
No. 7166, pre-proclamation cases involving the authenticity and due
execution of certificates of canvass are now allowed in elections for
President, Vice-President, and Senators. The intention of Congress to treat
a case falling under Section 30 of Republic Act No. 7166, as amended by
Republic Act No. 9369, as a pre-proclamation case is apparent in the fourth
paragraph of the said provision which adopts and applies to such a case
the same procedure provided under Sections 17, [24] 18,[25] 19[26] and 20[27] of
Republic Act No. 7166 on pre-proclamation controversies.
In sum, in elections for President, Vice-President, Senators and
Members of the House of Representatives, the general rule still is that preproclamation cases on matters relating to the preparation, transmission,
receipt, custody and appreciation of election returns or certificates of
canvass are still prohibited. As with other general rules, there are
recognized exceptions to the prohibition, namely: (1) correction of manifest
errors; (2) questions affecting the composition or proceedings of the board
of canvassers; and (3) determination of the authenticity and due execution
of certificates of canvass as provided in Section 30 of Republic Act No.
7166, as amended by Republic Act No. 9369.
The Petition at bar
Pimentels objections to the Maguindanao MCOCs delve into
matters relating to the preparation, transmission, receipt, custody and
appreciation of the said MCOCs by the SPBOC-Maguindanao. He suspects
the authenticity and due execution of the Maguindanao MCOCs used by the
SPBOC-Maguindanao in its canvass, which were mostly copy 2 or the copy
for the wall,[28] because of the supposed mysterious circumstances
surrounding the loss or unavailability of any other copy of the
said MCOCs. He decries the denial by the SPBOC-Maguindanao and the
NBC of the opportunity to question PES Bedol and the Chairpersons of
the MBOCs-Maguindanao on where did that copy 2 come from, what was
the basis, when was it accomplished, how was it posted x x x;[29] and to
substantiate his claim that the Maguindanao MCOCs are palpably
manufactured and are not fit for canvass. [30] He is raising issues related to
the
tampering
with,
falsification
of,
or
discrepancies
in
the Maguindanao MCOCs, which are properly the subject of a preproclamation controversy.[31]
Pimentel insists that the SPBOC-Maguindanao and the NBC should
hear his observations, accept his evidence, and rule on his objections to
the Maguindanao MCOCs in what would undeniably be a pre-proclamation
case. Ultimately, what Pimentel seeks is that his pre-proclamation case be
given due course by the boards of canvassers.
Respondents contend that Pimentel cannot initiate and pursue a
pre-proclamation case before the SPBOC-Maguindanao or the NBC, since
such a case is prohibited in elections for Senators. Pimentel, however,
argues that his pre-proclamation case is an exception to the prohibition

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

not to local boards of canvassers who must still be deemed

covered by the prohibition on pre-proclamation controversies.
It is also significant to note that Section 15 of Republic Act No.
7166, as amended by Republic Act No. 9369, prohibits pre-proclamation
cases in elections for President, Vice-President, Senators, and
Members of the House of Representatives; while Section 30 of the
same statute, as amended, refers only to elections for President, VicePresident and Senators. The intent of the Legislature to confine the
application of Section 30 of Republic Act No. 7166, as amended by
Republic Act No. 9369, only to Congress or the COMELEC en banc acting as
the NBC thus becomes even more evident, considering that the said
provision does not apply to elections for Members of the House of
Representatives. It must be borne in mind that only the votes for national
elective positions such as the President, Vice-President, and Senators are
canvassed by the NBC. The canvassing of votes for local elective positions,
including those for Members of the House of Representatives, end with the
local boards of canvassers. Therefore, it would be contrary to the
legislative intent to extend Section 30 of Republic Act No. 7166, as
amended by Republic Act No. 9369, even to the canvass proceedings
before local boards of canvassers.
This Court can only conclude that the canvass proceedings before
local boards of canvassers in elections for Senators are unaffected by the
amendment of Republic Act No. 7166 by Republic Act No. 9369. They still
remain administrative and summary in nature, so as to guard against
the paralyzation of canvassing and proclamation proceedings that would
lead to a vacuum in so important and sensitive office as that of Senator of
the Republic.[35]
For the same reasons stated in the preceding paragraphs, the four
criteria enumerated by Section 30 of Republic Act No. 7166, as amended
by Republic Act No. 9369, are not mandatory on local boards of canvassers
in their determination of authenticity and due execution of the certificates
of canvass submitted to them. It is already well-settled that the local
boards of canvassers, as well as the SPBOC-Maguindanao in this case, may
proceed with the canvassing of the election returns or certificates of
canvass for as long as they appear to be authentic and duly accomplished
on their face.[36]
Boards of canvassers are ad hoc bodies that exist only for the
interim task of canvassing election returns. They do not have the facilities,
the time and even the competence to hear, examine and decide on alleged
election irregularities, unlike regular courts or the COMELEC itself or the
electoral tribunals (Presidential, Senate, and House), which are regular
agencies of government tasked and equipped for the purpose. While this
Court has time and again expressed its abhorrence of the nefarious "grab
the proclamation and prolong the protest" strategy of some candidates,
nonetheless,
it
recognizes
the
very
limited
jurisdiction
of MBOCs and PBOCs. Unless Pimentel is able to show cogently and clearly
his entitlement to the summary exclusion of clearly unacceptable
certificates of canvass, this Court must uphold the constitutional and legal

presumption of regularity in the performance of official functions and

authenticity of official documents.[37]

wherein the parties may litigate all the legal and factual issues raised by
them in as much detail as they may deem necessary or appropriate. [40]

The
burden
is
upon
Pimentel
to
establish
that
the Maguindanao MCOCs are manufactured, and that it is evident on the
face thereof. Pimentels insistence on being allowed to propound questions
to PES Bedol and the Chairpersons of the MBOCs-Maguindanao and SPBOCMaguindanao reveals that, although he has his suspicions, he has yet no
actual evidence that the Maguindanao MCOCs were indeed manufactured.

Proceedings before the

COMELEC
en
banc
acting as the NBC for
elections for Senators

Moreover,
Pimentels
main
objection
to
the Maguindanao MCOCs used
in
the
canvass
by
the
SPBOCMaguindanao is that they are mostly copy 2 or the copy intended to be
posted on the wall. According to Section 43 of COMELEC Resolution No.
7859, dated 17 April 2007, the MBOCs must transmit copy 1 of
the MCOCs to the PBOC for use in the provincial canvassing of votes. The
SPBOC-Maguindanao was
compelled
to
use
copy
2
of
the Maguindanao MCOCs in the absence of copy 1 thereof. The fact that
copy 2 of the Maguindanao MCOCs was not the copy meant for the PBOCMaguindanao does not necessarily mean that copy 2 of the
said MCOCs was manufactured, falsified or tampered with. All the seven
copies of the MCOCs required to be prepared by the MBOCs should be
considered duplicate originals.[38] Just like copy 1 of the MCOCs, copy 2
should be afforded the presumption of authenticity as an official document
prepared by the MBOCs-Maguindanao in the regular performance of their
official functions. Copy 2 is no less authentic than all the other copies of
the MCOCs although it may be more susceptible to manufacture,
falsification, or tampering. If the manufacture, falsification, or tampering of
copy 2 of the MCOCs is not apparent on its face, the burden to prove the
same falls on the candidate making the allegation in a regular election
protest. At least as far as the proceedings before the local boards of
canvassers are concerned, this Courts ruling in Pangarungan v.
Commission on Elections[39] still holds true: it is not required that all the
other copies of the election returns or certificates of canvass be taken into
account and compared with one another before one of them, determined
to be authentic, may be used or included in the canvass.
The
SPBOC-Maguindanao determined
that
copy
2
of
the Maguindanao MCOCs is authentic and duly executed on its face, while
Pimentel insists otherwise. This issue involves the appreciation of copy 2 of
the Maguindanao MCOCs by the SPBOC-Maguindanao, the proper subject
of a pre-proclamation controversy, which, as this Court already declared, is
still prohibited in proceedings before local boards of canvassers for
elections for Senators.
The resolution of the issues raised by Pimentel as to the
irregularities
and
suspicious
circumstances
surrounding
the Maguindanao MCOCs, which appear prima facieregular on their face,
compels or necessitates the piercing of the veil of the said MCOCs. These
issues, however, are more appropriate in a regular election protest,

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

the Maguindanao MCOCs and prepared and submitted to the NBC the
second Maguindanao PCOC.
Hence, the four criteria enumerated in Section 30 of Republic Act
No. 7166, as amended by Republic Act No. 9369, must be applied by the
NBC to the secondMaguindanao PCOC. The authenticity and due execution
of the Maguindanao MCOCs, which had already been determined by the
SPBOC-Maguindanao, are no longer in issue before the NBC. To allow
Pimentel to revive again before the NBC the issue of authenticity and due
execution of the Maguindanao MCOCs after a determination thereof by the
SPBOC-Maguindanao is like granting him an appeal, a remedy which is
without any statutory or regulatory basis.
The SPBOC-Maguindanao prepared all seven copies of the
second Maguindanao PCOC. It properly submitted the first copy to the NBC
for national canvassing of the votes for Senators. All the six other copies
are in existence and have been distributed to the intended
recipients. There is no allegation or proof that there is a discrepancy
among
the
seven
authentic
copies
of
the
second Maguindanao PCOC. Neither
is
it
shown
that
the
second Maguindanao PCOC contains any discrepancy when compared with
its supporting documents. It would thus appear to this Court that the
second Maguindanao PCOC passed the third criterion for its authenticity
and due execution as provided in Section 30 of Republic Act No. 7166, as
amended by Republic Act No. 9369. As for the three other criteria, there is
no sufficient allegation, much less proof, that the NBC did not apply them
to the second Maguindanao PCOC or that the second Maguindanao PCOC
actually failed to meet any of them.
Given the foregoing, there is indeed no merit in Pimentels request
before the NBC to still question PES Bedol and the Chairpersons of
the MBOCs-Maguindanao and
SPBOC-Maguindanao regarding
the Maguindanao MCOCs. There is also no reason to exclude the
second Maguindanao PCOC from the national canvass of votes for Senators
after its authenticity and due execution had been determined by the NBC
in accordance with the criteria provided by the law.
Due process and equal
protection of the law
Pimentel alleges that the proceedings before the NBC and the
Maguindanao disallowing him from asking certain election officials,
PES Bedol and the Chairpersons of the MBOCs-Maguindanao and
Maguindanao, questions regarding the Maguindanao PCOC and
deprived him of his right to due process.

SPBOCsuch as
SPBOCMCOCs,

In City of Manila v. Hon. Laguio, Jr.,[41] this Court already provided a

discourse on due process, to wit:

The constitutional safeguard of due process is

embodied in the fiat (N)o person shall be deprived of life,
liberty or property without due process of law x x x.
There is no controlling and precise definition of due
process. It furnishes though a standard to which
governmental action should conform in order that
deprivation of life, liberty or property, in each appropriate
case, be valid. This standard is aptly described as a
responsiveness to the supremacy of reason, obedience to
the dictates of justice, and as such it is a limitation upon
the exercise of the police power.
The purpose of the guaranty is to prevent
governmental encroachment against the life, liberty and
property of individuals; to secure the individual from the
arbitrary exercise of the powers of the government,
unrestrained by the established principles of private rights
and distributive justice; to protect property from
confiscation by legislative enactments, from seizure,
forfeiture, and destruction without a trial and conviction by
the ordinary mode of judicial procedure; and to secure to
all persons equal and impartial justice and the benefit of
the general law.
The guaranty serves as a protection against
arbitrary regulation, and private corporations and
partnerships are persons within the scope of the guaranty
insofar as their property is concerned.
This clause has been interpreted as imposing two
separate limits on government, usually called procedural
due process and substantive due process.
Procedural due process, as the phrase implies,
refers to the procedures that the government must follow
before it deprives a person of life, liberty, or property.
Classic procedural due process issues are concerned with
what kind of notice and what form of hearing the
government must provide when it takes a particular action.
Substantive due process, as that phrase connotes,
asks whether the government has an adequate reason for
taking away a persons life, liberty, or property. In other
words, substantive due process looks to whether there is a
sufficient justification for the governments action. Case law
in the United States (U.S.) tells us that whether there is
such a justification depends very much on the level of
scrutiny used. For example, if a law is in an area where
only rational basis review is applied, substantive due
process is met so long as the law is rationally related to a
legitimate government purpose. But if it is an area where
strict scrutiny is used, such as for protecting fundamental
rights, then the government will meet substantive due

process only if it can prove that the law is necessary to

achieve a compelling government purpose.
This Court finds Pimentels argument of deprivation of due process
problematic since he has not established what he is being deprived of: life,
liberty, or property. He was a candidate in the senatorial elections. At the
time he filed the instant Petition, he might have been leading in the
canvassing of votes, yet the canvass proceedings were still ongoing, and
no winner for the twelfth and last senatorial post had been
proclaimed. May he already claim a right to the elective post prior to the
termination of the canvass proceedings and his proclamation as winner,
and may such a right be considered a property right which he cannot be
deprived of without due process? These were clearly substantial and
weighty issues which Pimentel did not address. Unfortunately, this Court
cannot argue and settle them for him.
Pimentel only made a sweeping claim that in the canvass proceedings of
the Maguindanao votes before the NBC and the SPBOC-Maguindanao, he
was deprived of his constitutional right to due process, both procedural
and substantive. After going over his allegations, however, and the
definition of substantive due process, this Court finds that Pimentel cannot
invoke denial of substantive due process because he is not assailing any
law, which, arbitrarily or without sufficient justification, supposedly
deprived him of life, liberty, or property.
At most, Pimentel can claim that he was denied procedural due process
when he was not allowed by the NBC and the SPBOC-Maguindanao to
propound questions to certain election officials. But even on this point,
Pimentel fails to convince this Court. Asking election officials questions and
confronting them with evidence are not part of the canvass
proceedings. There is no statute or regulation expressly providing for such
a procedure.
Any objection or manifestation concerning a certificate of canvass before
the NBC, as well as any contest involving the inclusion or exclusion of an
election return or certificate of canvass before a local board of canvassers,
must be orally submitted to the Chairperson of the NBC or the local board
of canvassers, as the case may be. Simultaneous with the oral submission,
the party concerned must submit his written objection, manifestation, or
contest in the form required. The objection, manifestation, or contest shall
also be recorded in the minutes of the canvass. In the event that the NBC
or local board of canvassers shall determine that there is a proper case for
the objection, manifestation, or contest submitted, it shall automatically
defer the canvass of the assailed election return or certificate of
canvass. Within 24 hours from the submission of the objection,
manifestation, or contest, the party concerned shall submit his evidence
which shall be attached to his written objection, manifestation, or
contest. Within the same 24-hour period, any party may file a written and
verified opposition to the objection, manifestation, or contest. Upon receipt
of the evidence, the NBC or the local board of canvassers shall take up the

assailed election return or certificate of canvass, and after considering the

objection, manifestation or contest, together with the opposition thereto
and the evidences submitted, shall summarily and immediately rule
thereon.[42]
The afore-described procedure does not provide any party the opportunity
to question and confront election officials and other witnesses. It may have
been allowed on occasion by the boards of canvassers, but it does not
necessarily ripen into a legally demandable right. Again, canvass
proceedings are administrative and summary in nature. As for local boards
of canvassers, in elections for Senators, they only need to determine the
authenticity and due execution of the election returns or certificates of
canvass on the face thereof.As for the COMELEC en banc, acting as the
NBC, the determination of the authenticity and due execution of the
certificates of canvass shall be limited only to those submitted before it by
the local boards of canvassers and in accordance with the criteria provided
in Section 30 of Republic Act No. 7166, as amended by Republic Act No.
9369. The limitations on the powers and duties of the boards of canvassers
are meant to avoid any delay in the proclamation of the elected
official. Issues whose resolution would require the presentation and
examination of witnesses are more properly raised in a regular election
protest.
And as a final observation on the matter of due process, this Court notes
that although Pimentel was not able to propound questions to the election
officials
involved
in
the
preparation
and
canvassing
of
the Maguindanao MCOCs and PCOC, he was still able, through his counsel,
to state his observations, manifestations, and objections regarding the said
certificates, which were duly noted.[43] He may not have received the
response or action that he wanted with respect to his observations,
manifestations, and objections, but Pimentel cannot deny that these were
heard and presented in the canvass proceedings. Pimentel further
admitted that he did not submit his written observations, manifestations,
and objections as the rules of procedure before the NBC and the local
boards of canvassers require.[44] He cannot now decry that his
observations, manifestations, and objections were not given due course
when he himself failed to comply with the procedure governing the same.
Equally baseless is Pimentels averment that his right to equal protection of
the laws was violated when the NBC and the SPBOC-Maguindanao adopted
a procedure of no questions in the canvass of the Maguindanao MCOCs,
different from the procedure adopted in the canvass of the certificates of
canvass from other provinces/areas. Article III, Section 1 of the 1987
Constitution guarantees that no person shall be denied equal protection of
the laws. According to a long line of decisions, equal protection simply
requires that all persons or things similarly situated should be treated alike,
both as to rights conferred and responsibilities imposed. Similar subjects,
in other words, should not be treated differently, so as to give undue favor
to some and unjustly discriminate against others. [45] According to Pimentel,
he was deprived of equal protection of the laws when he was not allowed
to question the election officials involved in the canvass proceedings

for Maguindanao, although he was allowed to do so for other provinces or

districts. In support of his claim, Pimentel compared his own experiences in
the canvass proceedings for different provinces or districts. This Court,
however, finds Pimentels assessment misplaced.What would have been
essential for Pimentel to allege and prove was that other senatorial
candidates were allowed during the canvass proceedings to question the
election officials involved in the preparation and canvassing of
the Maguindanao MCOCs and PCOC, while he was not; and that the other
senatorial candidates were given undue favor, while he was the only one
unjustly discriminated against. It seems apparent to this Court that the
position of the SPBOC-Maguindanao and the NBC not to allow, during the
canvass proceedings, the questioning of election officials involved in the
preparation and canvassing of the Maguindanao MCOCs and PCOC, was
consistent for all senatorial candidates. Hence, petitioner was similarly
situated with all the other senatorial candidates and they were all treated
alike insofar as the canvass proceedings for Maguindanaowere concerned.
Electoral protest before
the
Senate
Electoral
Tribunal (SET)

gross as to amount to an evasion of a positive duty or to a virtual refusal to

perform the duty enjoined or to act at all in contemplation of law. [46]
The extraordinary remedy of mandamus, on the other hand, may
be availed of under the conditions provided below:
RULE 65, SECTION 3. Petition for mandamus. When
any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the
law specifically enjoins as a duty resulting from an office,
trust, or station, or unlawfully excludes another from the
use and enjoyment of a right or office to which such other
is entitled, and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that
judgment be rendered commanding the respondent,
immediately or at some other time to be specified by the
court, to do the act required to be done to protect the
rights of the petitioner, and to pay the damages sustained
by the petitioner by reason of the wrongful acts of the
respondent.

Pimentels Petition is for Certiorari and Mandamus, both governed

by Rule 65 of the Rules of Court.
A special civil action for certiorari may be filed under the following
circumstances:
SECTION 1. Petition for certiorari. When any
tribunal, board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is no appeal, or any
plain, speedy, and adequate remedy in the ordinary course
of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered annulling
or modifying the proceedings of such tribunal, board or
officer, and granting such incidental reliefs as law and
justice may require.

The writ of mandamus shall be issued only if the legal right to be

enforced is well defined, clear and certain. It lies only to compel an officer
to perform a ministerial duty, not a discretionary one. The duty is
ministerial only when its discharge requires neither the exercise of official
discretion nor judgment.[47]
To avail of both special civil actions, there must be no other plain, speedy
and adequate remedy in the ordinary course of law available to the
petitioner, and in this, Pimentels Petition falters.
It must be kept in mind that Zubiri was proclaimed the twelfth Senatorelect in the 14 May 2007 elections on 14 July 2007, and that he formally
assumed office on 16 July 2007.In accordance with this Courts ruling
in Aggabao, Pimentels Petition must be dismissed, for his recourse lies, not
with this Court, but with the SET.
This Court elucidated in Aggabao[48] that:

In a special civil action for certiorari, the burden is on the part of

petitioner to prove not merely reversible error, but grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the
public respondent issuing the impugned order. Grave abuse of discretion
means a capricious and whimsical exercise of judgment as is equivalent to
lack of jurisdiction. Mere abuse of discretion is not enough, it must be so
grave as when the power is exercised in an arbitrary or despotic manner
by reason of passion or personal hostility, and must be so patent and so

Article VI, Section 17 of the 1987 Constitution

provides:
Sec. 17.
The Senate and the House of
Representatives shall each have an Electoral Tribunal which
shall be the sole judge of all contests relating to the
election, returns, and qualifications of their respective
Members. Each Electoral Tribunal shall be composed of
nine Members, three of whom shall be Justices of the

Supreme Court to be designated by the Chief Justice, and

the remaining six shall be Members of the Senate or the
House of Representatives, as the case may be, who shall
be chosen on the basis of proportional representation from
the political parties and the parties or organization
registered under the party-list system represented therein.
The senior Justice in the Electoral Tribunal shall be its
Chairman.
In Pangilinan v. Commission on Elections we ruled
that:
The Senate and the House of
Representatives now have their respective
Electoral Tribunals which are the sole judge
of all contests relating to the election,
returns,
and
qualifications
of
their
respective Members, thereby divesting the
Commission on Elections of its jurisdiction
under the 1973 Constitution over election
cases pertaining to the election of the
Members
of
the Batasang Pambansa (Congress).
It
follows that the COMELEC is now bereft of
jurisdiction to hear and decide preproclamation
controversies
against
members of the House of Representatives
as well as of the Senate.
The HRET has sole and exclusive jurisdiction over
all contests relative to the election, returns, and
qualifications
of
members
of
the
House
of
Representatives. Thus, once a winning candidate has been
proclaimed, taken his oath, and assumed office as a
Member
of
the
House
of
Representatives, COMELECs jurisdiction
over
election
contests relating to his election, returns, and qualifications
ends, and the HRETs own jurisdiction begins.
It is undisputed that Miranda has already been
proclaimed, taken his oath and assumed office on June 14,
2004. As such, petitioners recourse would have been to
file an electoral protest before the HRET. His remedy is not
this petition for certiorari. Thus:
Finally, the private respondent
Feliciano Belmonte, Jr. has already been
proclaimed
as
the
winner
in
the
congressional elections in the fourth
district of Quezon City. He has taken his
oath of office and assumed his duties as
representative; hence, the remedy open to
the petitioner was to have filed an electoral

protest with the Electoral Tribunal of the

House of Representatives.
The allegation that Mirandas proclamation is null
and void ab initio does not divest the HRET of its
jurisdiction. Thus:
(I)n an electoral contest where the
validity of the proclamation of a winning
candidate who has taken his oath of office
and assumed his post as Congressman is
raised, that issue is best addressed to the
HRET. The reason for this ruling is selfevident, for it avoids duplicity of
proceedings and a clash of jurisdiction
between constitutional bodies, with due
regard to the peoples mandate.
In Lazatin v. Commission
that, upon proclamation of the
despite its alleged invalidity, the
its jurisdiction to hear the protest.

on Elections we ruled
winning candidate and
COMELEC is divested of
Thus:

The petition is impressed with

merit because the petitioner has been
proclaimed winner of the Congressional
elections in the first district of Pampanga,
has taken his oath of office as such, and
assumed his duties as Congressman. For
this Court to take cognizance of the
electoral protest against him would be to
usurp the functions of the House Electoral
Tribunal. The alleged invalidity of the
proclamation (which has been previously
ordered by the COMELEC itself) despite
alleged
irregularities
in
connection
therewith, and despite the pendency of the
protests of the rival candidates, is a matter
that is also addressed, considering the
premises, to the sound judgment of the
Electoral Tribunal.
In this case, certiorari will not lie considering that
there is an available and adequate remedy in the ordinary
course of law for the purpose of annulling or modifying the
proceedings before the COMELEC. After the proclamation,
petitioners remedy was an electoral protest before the
HRET. The resolution of the issues presented in this
petition is best addressed to the sound judgment and
discretion of the electoral tribunal.

The afore-quoted pronouncements are likewise applicable to the Petition at

bar, with the references therein to the jurisdiction of the House of
Representatives Electoral Tribunal over election protests involving
members of the House of Representatives also being true for the SET as
regards election protests involving Senators.
In Chavez v. Commission on Elections,[49] this Court similarly ruled
that the word "sole" in Article VI, Section 17 of the 1987 Constitution
underscores the exclusivity of the electoral tribunals' jurisdiction over
election contests relating to their respective members. It is therefore
crystal clear that this Court has no jurisdiction to entertain a petition
for certiorari and mandamus on matters which may be threshed out in an
election contest. It is the SET which has exclusive jurisdiction to act on the
complaint of Pimentel involving, as it does, a contest relating to the
election of Zubiri, now a member of the Senate.
Pimentel attempts to bring his case outside the jurisprudential precedent
set by Aggabao, but to no avail.
That Pimentel filed the present Petition prior to Zubiris proclamation is
insignificant. Since Pimentels prayer for a TRO and/or Status Quo
Ante Order had been denied, Zubiriwas proclaimed the twelfth winning
Senator in the 2007 Senatorial Elections.
Pimentel further claims that he is not challenging Zubiris proclamation, but
rather the conduct of the proceedings before the NBC and the SPBOCMaguindanao. This is just a roundabout argument. Pimentel cannot deny
that he assails the canvass proceedings because he believes that the
annulment and setting aside thereof would result in his winning as the
twelfth Senator in the 14 May 2007 elections; and if he is the rightful
winner, then logically and necessarily, Zubiris proclamation must also be
annulled and set aside.
Finally, while Section 15, in relation to Section 30, of Republic Act
No. 7166, as amended by Republic Act No. 9369, did introduce an
additional exception to the prohibition against pre-proclamation
controversies in elections for President, Vice-President, and Senators, this
Court has already established in the preceding discussion that Pimentel
cannot invoke the same in his Petition. The provisions in question did not
materially change the nature of canvass proceedings before the boards of
canvassers, which still remain summary and administrative in nature for
the purpose of canvassing the votes and determining the elected official
with as little delay as possible and in time for the commencement of the
new term of office.
This Court deems it necessary to stress that attempts to delay the canvass
proceedings, except for the permissible pre-proclamation controversies,
must be shunned. Grounds which are proper for electoral protests should
not be allowed to delay the proclamation of the winners. [50] It may well be
true that public policy may occasionally permit the occurrence of "grab the
proclamation and prolong the protest" situations; that public policy,
however, balances the possibility of such situations against the shortening
of the period during which no winners are proclaimed, a period commonly

fraught with tension and danger for the public at large. For those who
disagree with that public policy, the appropriate recourse is not to ask this
Court to abandon case law, which merely interprets faithfully existing
statutory norms, to engage in judicial legislation and in effect to rewrite
portions of the Omnibus Election Code. The appropriate recourse is, of
course, to the Legislative Department of the Government and to ask that
Department to strike a new and different equilibrium in the balancing of
the public interests at stake.[51]
IN VIEW OF THE FOREGOING, the present
for Certiorari and Mandamus is hereby DISMISSED. No costs.
SO ORDERED.

Petition

G.R. No. L-25444

January 31, 1966

WENCESLAO
RANCAP
LAGUMBAY, petitioner,
vs.
THE COMMISSION ON ELECTIONS and CESAR CLIMACO, respondents.
Wenceslao
R.
Lagumbay
Ambrosio Padilla for the respondents.

for

the

petitioner.

BENGZON, C.J.:
This petition prays for revision of an order of the Commission on Elections
declining to reject the returns of certain precincts of some municipalities in
Mindanao. The Constitution provides for review by this Court of the rulings
of the said Commission.
The matter being urgent, and having reached the conclusion that the
returns of certain questioned precincts were "obviously manufactured"
within the meaning of pertinent jurisprudence, particularly Mitchell v.
Stevens,1 we issued on December 24, 1965, a short resolution upholding
the Commission's power and duty to reject the returns of about fifty
precincts.
It appearing therein that contrary to all statistical probabilities
in the first set, in each precinct the number of registered voters
equalled the number of ballots and the number of votes reportedly
cast and tallied for each and every candidate of the Liberal Party,
the party in power; whereas, all the candidates of the Nacionalista
Party got exactly zero; and in the second set, again contrary to
all statistical probabilities all the reported votes were for
candidates of the Liberal Party, all of whom were credited
with exactly the same number of votes in each precinct, ranging
from 240 in one precinct to 650 in another precinct; whereas, all
the candidates of the Nacionalista Party were given exactly zero in
all said precincts.

We opined that the election result to said precincts as reported, was utterly
improbable and clearly incredible. For it is not likely, in the ordinary course
of things, that all the electors of one precinct would, as one man, vote
for all the eight candidates of the Liberal Party, without giving a single vote
to one of the eight candidates of the Nacionalista Party. Such extraordinary
coincidence was quite impossible to believe, knowing that the Nacionalista
Party had and has a nationwide organization, with branches in every
province, and was, in previous years, the party in power in these islands.
We also know from our experience in examining ballots in the three
Electoral Tribunals (Presidential, Senate, and House) that a large portion of
the electors do not fill all the blanks for senators in their ballots. Indeed,
this observation is confirmed by the big differences in the votes received
by the eight winning senators in this as well as in previous national
elections;2 almost a million votes between the first place and the eight.
Furthermore, in 1965, the total number of electors who cast their votes
was 6,833,369 (more or less). If every voter had written eight names on his
ballot, the total number of votes cast for all the candidates would be that
number multiplied by 8, namely 54,666,952. But the total number of the
votes tallied for the candidates for senator amounted to 49,374,942 only.
The difference between the two sums represents the number of
ballots that did not contain eight names for senators. In other words, some
5 million ballots did not carry eight names. Of course, this is a rough
estimate, because some ballots may have omitted more names, in which
case, the number of incomplete ballots would be less. But the general idea
and the statistical premise is there.
The same statistical result is deducible from the 1963 election data: total
number of electors who voted, 7,712,019; if each of them named eight
senators, the total votes tallied should have been 61,696,152; and yet the
total number tallied for all the senatorial candidates was 45,812,470 only.
A greater number of incomplete ballots.
It must be noted that this is not an instance wherein one return gives to
one candidate all the votes in the precinct, even as it gives exactly zero to
the other. This is not a case where some senatorial candidates obtain
zeroexactly, while some others receive a few scattered votes. Here, all the
eight candidates of one party garnered all the votes, each of them
receiving exactly the same number, whereas all the eight candidates of the
other party got precisely nothing.
The main point to remember is that there is no block-voting nowadays.

What happened to the vote of the Nacionalista inspector? There was one in
every precinct. Evidently, either he became a traitor to his party, or was
made to sign a false return by force or other illegal means. If he signed
voluntarily, but in breach of faith, the Nacionalista inspector betrayed his
party; and, any voting or counting of ballots therein, was a sham and a
mockery of the national suffrage.

Of course we agree that frauds in the holding of the election should be

handled and finally settled by the corresponding courts or electoral
tribunals. That is the general rule, where testimonial or documentary
evidence, is necessary; but where the fraud is so palpable from the return
itself (res ipsa loquitur the thing speaks for itself), there is no reason to
accept it and give it prima facie value.

Hence, denying prima facie recognition to such returns on the ground that
they are manifestly fabricated or falsified, would constitute a practical
approach to the Commission's mission to insure free and honest elections.

At any rate, fraud or no fraud, the verdict in these fifty precincts may
ultimately be ascertained before the Senate Electoral Tribunal. 4 All we hold
now, is that the returns show "prima facie" that they do not reflect true and
valid reports of regular voting. The contrary may be shown by candidate
Climaco in the corresponding election protest.

In Mitchell vs. Stevens, supra, the returns showed a noticeable excess of

votes over the number of registered voters, and the court rejected the
returns as obviously "manufactured". Why? The excess could have been
due to the fact that, disregarding all pertinent data, the election officers
wrote the number of votes their fancy dictated; and so the return was
literally a "manufactured", "fabricated" return. Or maybe because persons
other than voters, were permitted to take part and vote; or because
registered voters cast more than one ballot each, or because those in
charge of the tally sheet falsified their counts. Hence, as the Mitchell
decision concluded, the returns were "not true returns . . . but simply
manufactured evidences of an attempt to defeat the popular will." All these
possibilities and/or probabilities were plain fraudulent practices, resulting
in misrepresentation of the election outcome. "Manufactured" was the
word used. "Fabricated" or "false" could as well have been employed.
The same ratio decidendi applies to the situation in the precincts herein
mentioned. These returns were obviously false or fabricated prima facie.
Let us take for example, precinct No. 3 of Andong, Lanao del Sur. There
were 648 registered voters. According to such return all the
eight candidates of the Liberal Party got 648 each, 3 and the eight
Nacionalista candidates got exactly zero. We hold such return to be
evidently fraudulent or false because of the inherent improbability of such
a result against statistical probabilities specially because at least one
vote should have been received by the Nacionalista candidates, i.e., the
vote of the Nacionalista inspector. It is, of course, "possible" that such
inspector did not like his party's senatorial line-up; but it is not probable
that he disliked all of such candidates, and it is not likely that he
favored all the eight candidates of the Liberal Party. Therefore, most
probably, he was made to sign an obviously false return, or else he
betrayed his party, in which case, the election therein if any was no
more than a barefaced fraud and a brazen contempt of the popular polls.

The well-known delay in the adjudication of election protests often gave

the successful contestant a mere pyrrhic victory, i.e., a vindication when
the term of office is about to expire, or has expired. And so the notion has
spread among candidates for public office that the "important thing" is the
proclamation; and to win it, they or their partisans have tolerated or
abetted the tampering or the "manufacture" of election returns just to get
the proclamation, and then let the victimized candidate to file the protest,
and spend his money to work for an empty triumph.
It is generally admitted that the practice has prevailed in all previous
elections. Never was the point pressed upon us in a more clear-cut manner.
And without, in any way, modifying our stand as outlined in
the Nacionalista Party vs. Commission decision, we feel the mores of the
day require application even extension of the principle in the Mitchell
decision, which is realistic and common sensical even as it strikes a blow at
such pernicious "grab - the - proclamation - prolong - the - protest" slogan
of some candidates or parties.
It is strongly urged that the results reported in these returns are quite
"possible", bearing in mind the religious or political control of some leaders
in the localities affected. We say, possible, not probable. It is possible to
win the sweepstakes ten times; but not probable. Anyway, judges are not
disposed to believe that such "control" has proved so powerful as to
convert the electors into mere sheep or robots voting as ordered. Their
reason and conscience refuse to believe that 100% of the voters in such
precincts abjectly yet lawfully surrendered their precious freedom to
choose the senators of this Republic.
Indeed, social scientists might wonder whether courts could, consistently
with morality and public policy,5 render judgment acknowledging such

"control" or validating such "controlled votes" as candidate Climaco chose

to call them.
In view of the foregoing, and overlooking some intemperate language
which detracts from the force of the arguments, we hereby deny the
motion to reconsider our resolution of December 24, 1965, as well as the
petition for a re-hearing.
Concepcion, Reyes, J.B.L. Dizon and Makalintal, concur.

G.R. No. 120426 November 23, 1995

NICOLAS
C.
CASTROMAYOR, petitioner,
vs.
COMMISSION ON ELECTIONS and the MUNICIPAL BOARD OF
CANVASSERS OF CALINOG, ILOILO,respondents.

MENDOZA, J.:
This is a petition for certiorari, prohibition, and mandamus seeking to set
aside a resolution of the Commission on Elections (COMELEC) which directs
the Municipal Board of Canvassers of Calinog, Iloilo to reconvene for the
purpose of annulling the proclamation of petitioner Nicolas C. Castromayor
as councilor of that municipality and of proclaiming the winner after a
recomputation of the votes.
Petitioner was a candidate for a seat in the eight-member Sangguniang
Bayan of the municipality of Calinog, Iloilo in the elections held on May 8,
1995.
After the votes had been cast, the Municipal Board of Canvassers (MBC)
convened at 6:00 p.m. of that day and began the canvass of the election
returns from the different precincts in the municipality. The canvassing
lasted well into the night of May 9, 1995. The totals of the votes cast were
checked by the Municipal Accountant who acted as recorder of votes. 1

As matters stood, therefore the total number of votes cast for Demorito
was 5,470, or 51 more than the 5,419 votes cast for petitioner. 4
Garin reported the matter to the Regional Election Director, Atty. Rodolfo
Sarroza, who advised her to request authority from the COMELEC to
reconvene for the purpose of correcting the error.
On May 13, 1995, a fax letter was sent to the Law Department of the
COMELEC in Manila. The letter explained the problem and asked for
authority for the MBC to reconvene in order to correct the error, annul the
proclamation of petitioner and proclaim Demorito as the eighth member of
the Sangguniang Bayan.
A formal letter was later sent to the COMELEC on May 17, 1995.
On May 23, 1995, the COMELEC issued the following resolution:
95-2414. In the matter of the Fax-letter
dated 13 May 1995 from Election Officer
Alice M. Carin [sic], requesting for an
authority to reconvene the MBC of Calinog,
Iloilo to annul the proclamation of Nicolas
Castromayor for the No. 8 place for
councilor and to proclaim Nilda C. Demorito
as the duly elected number eight (8) SB
member of said municipality,
RESOLVED:

On May 10, 1995, the winners were proclaimed on the basis of the results
of the canvass which showed that petitioner received 5,419 votes and took
eighth place in the election for members of the Sangguniang Bayan. 2
However, when Alice M. Garin, Chairman of the MBC, rechecked the totals
in the Statement of Votes the following day, she discovered that the
number of votes cast for Nilda C. Demorito, as member of the Sangguniang
Bayan, was 62 more than that credited to her. As Garin later explained to
the Provincial Election Supervisor, the returns from one precinct had been
overlooked in the computation of the totals. 3 Two employees of the
Treasurer's Office, who were assigned to post the returns on the tally board
outside the municipal building, also discovered the error and reported it to
Garin.

1 To direct the Municipal board of Canvassers of said

municipality to reconvene to annul the proclamation of
Nicolas C. Castromayor for the number 8 place for
councilor; and
2 To proclaim the winning number eight (8)councilor, and
to submit compliance hereof within five (5) days from
receipt of notice. 5
On May 25, 1995, not yet apprised of the resolution of the COMELEC en
banc, Garin sent a letter to petitioner Castromayor, informing him of the
error in the computation of the totals and of the request made by the MBC
for permission to reconvene to correct the error.

Petitioner protested the proposed action in a letter dated June 5, 1995 to

COMELEC Executive Director Resurreccion A. Borra. He questioned the
legality of the actuations of Garin as stated in her letter. 6
On June 9, 1995, the MBC was informed by fax of the COMELEC's action on
its request. 7
Accordingly on June 14, 1995, the MBC sent notices to the parties
concerned that it was going to reconvene on June 22, 1995, at 10:00 a.m.,
at the Session Hall of the Sangguniang Bayan, to make a correction of
errors.
Hence this petition to annul COMELEC Resolution No. 95-2414.
Petitioner complains that the COMELEC en banc issued the resolution in
question without notice and hearing, solely on the basis of the fax letter of
the MBC. He claims that even if the matter were treated as a
preproclamation controversy, there would nonetheless be a need for
hearing, with notice to him and an opportunity to refute any contrary
argument which might be presented. He invokes the ruling of this Court
inBince, Jr. v. COMELEC 8 that the COMELEC is "without power to partially or
totally annul a proclamation suspend the effects of a proclamation without
notice and hearing."
Petitioner's contention is well taken. That is why upon the filing of the
petition in this case, we issued a temporary restraining order against
respondents enjoining them from enforcing the resolution of the COMELEC.
Public respondents, through the Solicitor General, now claim, however,
that said resolution merely stated the purpose of the
reconvening of respondent Board, and that the process and
hearing for the annulment of petitioner's proclamation, due
to mistake in computing the votes of Sangguniang Bayan
candidate Nilda Demorito, will formally take place when
respondent Board reconvenes, at which time and place,
petitioner was already informed of (see Annex E, Petition).
xxx xxx xxx
In the aforesaid reconvening, petitioner would have been
free to interpose all his objections, and discuss his position
regarding the matter. 9

To be sure, the COMELEC did not itself annul the proclamation of petitioner,
but, by "direct[ing] the Municipal Board of Canvassers of said municipality
to reconvene to annul the proclamation of Nicolas C. Castromayor," the
COMELEC in effect did so. After all, the authority of the COMELEC was
sought because, without such authority, the MBC would not have the
power to annul the proclamation of petitioner.
Be that as it may and in order to obviate the necessity of remanding this
case to the COMELEC for further proceedings in accordance with due
process, we will accept this representation of the public respondents that
what the COMELEC resolution contemplates is a hearing before the MBC at
which petitioner will be heard on his objection and that only if warranted
will the MBC be authorized to set aside the proclamation of petitioner
previously made on May 10, 1995. We find this to be the expedient course
of action to take, considering that, after all, in its notice to the candidates,
the MBC did not state that it was going to reconvene to annul petitioner's
proclamation and make a new one but only that it was going to do so "for
the correction of the errors noted in the Statement of Votes Per
Precinct/Municipality." 10
The proceedings before the MBC should be summary. Should any party be
dissatisfied with the ruling of the MBC, the party concerned shall have a
right to appeal to the COMELEC en banc, in accordance with Rule 27, 7 of
the COMELEC Rules of Procedure, which provides as follows:
7. Correction of Errors in Tabulation or Tallying of Results
by the Board of Canvassers. (a) Where it is clearly
shown before proclamation that manifest errors were
committed in the tabulation or tallying of election returns,
or certificates of canvass, during the canvassing as where
(1) a copy of the election returns of one precinct or two or
more copies of a certificate of canvass were tabulated
more than once, (2) two copies of the election returns or
certificate of canvass were tabulated separately, (3) there
was a mistake in the adding or copying of the figures into
the certificate of canvass or into the statement of votes by
precinct, or (4) so-called election returns from non-existent
precincts were included in the canvass, the board
may motu propio, or upon verified petition by any
candidate, political party, organization or coalition of
political parties, after due notice and hearing, correct the
errors committed.

(b) The order for correction must be made in writing and

must be promulgated.
(c) Any candidate, political party, organization or coalition
of political parties aggrieved by said order may appeal
therefrom to the Commission within twenty-four (24) hours
from the promulgation.
(d) Once an appeal is made, the board of canvassers shall
not proclaim the winning candidates, unless their votes are
not affected by the appeal.
(e) The appeal must implead as respondents the Board of
Canvassers concerned and all parties who may be
adversely affected thereby.
(f) Upon receipt of the appeal, the Clerk of Court concerned
shall forthwith issue summons, together with a copy of the
appeal, to the respondents.

Indeed, since the Statement of Votes forms the basis of the Certificate of
Canvass and of the proclamation, any error in the statement ultimately
affects the validity of the proclamation. It begs the question, therefore, to
say that this is not a preproclamation controversy and the procedure for
preproclamation controversies cannot be applied to the correction in the
computation of the totals in the Statement of Votes.
It should be pointed out, in this connection, that what is involved here is a
simple problem of arithmetic. The Statement of Votes is merely a
tabulation per precinct of the votes obtained by the candidates as reflected
in the election returns. In making the correction in computation, the MBC
will be acting in an administrative capacity, under the control and
supervision of the COMELEC. Hence any question pertaining to the
proceedings of the MBC may be raised directly to the COMELEC en banc in
the exercise of its constitutional function to decide questions affecting
elections.
What has just been said also disposes of petitioner's other contention that
because his proclamation has already been made, any remedy of the
losing party is an election protest. As held in the Duremdes case:

(g) The Clerk of Court concerned shall immediately set the

appeal for hearing.

It is DUREMDES' further submission that this proclamation

could not be declared null and void because a preproclamation controversy is not proper after a
proclamation has been made, the proper recourse being an
election protest. This is on the assumption, however, that
there has been a valid proclamation. Where a proclamation
is null and void, the proclamation is no proclamation at all
and the proclaimed candidate's assumption of office
cannot deprive the COMELEC of the power to declare such
nullity and annul the proclamation. (Aguam vs. COMELEC,
L-28955, 28 May 1968, 23 SCRA 883). 12

(h) The appeal shall be heard and decided by the

Commission en banc.
Athough this provision applies to preproclamation controversies and here
the proclamation of petitioner has already been made, there is nothing to
suggest that it cannot be applied to cases like the one at bar, in which the
validity of the proclamation is precisely in question. On the contrary,
in Duremdes v. COMELEC, 11 this Court sustained the power of the
COMELEC en banc to order a correction of the Statement of Votes to make
it conform to the election returns in accordance with a procedure similar to
the procedure now embodied in Rule 27, 7. If the Rule was not applied, it
was only because it was adopted after that case had arisen. Otherwise, as
we said there, this procedure "best recommends itself specially considering
that the Statement of Votes is a vital component in the electoral process."

WHEREFORE, the petition is DISMISSED and the Temporary Restraining

Order previously issued is hereby LIFTED.
SO ORDERED.

G.R. No. 78461 August 12, 1987

AUGUSTO
S.
vs.
COMMISSION ON ELECTIONS, respondent.

SANCHEZ, petitioner,

No. 79146 August 12,1987

JUAN
PONCE
ENRILE, petitioner,
vs.
COMMISSION ON ELECTIONS AND SANTANINA RASUL, respondents.
No. 79212 August 12,1987
JUAN
PONCE
vs.
COMMISSION
ON
ELECTIONS
SANCHEZ, respondents.

ENRILE, petitioner,
AND

AUGUSTO

S.

PER CURIAM:
In G.R. No. 78461, candidate Augusto S. Sanchez (Sanchez) filed his
petition on May 28, 1987 praying that respondent Commission on Elections
(Comelec) after due hearing, be directed to conduct a recount of the votes
cast three months ago in the May 11, 1987 senatorial elections to
determine the true number of votes to be credited to him and prayed
further for a restraining order directing the Comelec to withhold the
proclamation of the last four (4) winning candidates on the ground that
votes intended for him were declared as astray votes because of the
sameness of his surname with that of disqualified candidate Gil Sanchez,
whose name had not been crossed out from the Comelec election returns
and other election forms.
Sanchez further alleged that on May 12, 1987, he filed an "Urgent Petition
to Recount and/or Re-appreciate Ballots" with the Comelec; acting on the
petition, the Comelec ordered Sanchez to submit a Bill of Particulars where
votes for "Sanchez" were not counted in his favor. Sanchez' compliance
asserted that the invalidation of "Sanchez" votes occurred in all regions
where the assailed Comelec forms were distributed and cited specific
precincts in Quezon City, Batangas, Pampanga, Cebu, Caloocan, Manila
and Iloilo as examples, without any particulars as to the number of votes.

The Court in its Resolutions of June 25, 1987 and July 10, 1987 sustained
Comelec's position that it be allowed to complete the canvass of the
returns of the senatorial elections, (estimated at about 240,000 votes as of
June 25, 1987) which would be subject thereafter to its resolution of
Sanchez' therein pending petition for recount on the basis of the merits
and relevant facts thereof, and therefore found no basis to issue the
restraining order prayed for by Sanchez.
In the interval, it appears that on June 26, 1987, candidate Santanina T.
Rasul (Rasul) filed her motion for intervention and opposition to Sanchez'
petition for recount pending before respondent Comelec. On July 2, 1987,
Rasul also filed her Supplemental Opposition raising additional grounds
against the recount. On July 2 and 3, 1987, Rasul and candidate Juan Ponce
Enrile (Enrile), then ranked 24th and 23rd, respectively immediate filed a
petition with respondent Comelec praying for their immediate proclamation
as duly-elected senators. The Comelec deferred action on these two
petitions per its resolution dated July 4, 1987, until after the remaining
uncanvassed returns shall have been completely canvassed. On July 11,
1987, Enrile also filed his motion for intervention and a motion to dismiss
the Sanchez petition for recount. On July 13, 1987, the Comelec granted
the motions for intervention filed by candidates Rasul and Enrile.
On July 16, 1987, the Comelec, by a vote of four to three, promulgated its
decision dismissing petitioner Sanchez' petition for recount. On July 20,
1987, petitioner Sanchez filed a motion for reconsideration of the decision
of July 16, 1987, which was opposed by intervenors Rasul and Enrile.
On July 25, 1987, the Comelec proclaimed Rasul as the 23rd senator-elect.
At that time, the lead of Rasul over Enrile was 1,910 votes only while the
lead of Enrile over Sanchez was 73,034 votes with 31,000 votes still to be
canvassed in three (3) municipalities of Sulu, namely, Parang, Maimbung
and Patikul, and in 15 precincts in Lanao del Sur. In proclaiming Rasul as
the 23rd senator-elect, the Comelec, while admitting that it was
mathematically possible for Enrile to overtake Rasul, justified its action by
rationalizing that "this is improbable, if not highly improbable" considering
that the untabulated returns come from Muslim areas or towns "which are
all bailiwicks of candidate Rasul, " and "between a Muslim candidate and a
non-Muslim one, in all probability the Muslim candidate will obtain a higher
percentage of the votes cast."
On July 28, 1987, Enrile filed with this Court his petition [G.R. No. 79146
Juan Ponce Enrile v. Comelec and Santanina Rasul] (1) to compel the
Comelec to complete the canvass of votes cast for senators in the May 11,
1987 elections to determine the 23rd and 24th placers in the senatorial

race and (2) to annul the proclamation of respondent Rasul or to suspend

the effects of such proclamation pending the determination of the 23rd and
24th placers, on the ground of mathematical possibility that the
uncanvassed votes would materially affect the 23rd and 24th rankings in
the senatorial race, while the Comelec's proclamation of the first 20
elected senators was predicated upon a finding that the first 20 placers
would no longer be affected by the certificates of canvass still to be
submitted to the Comelec; and that Comelec gave the same reason when
it proclaimed subsequently the 21st placer (Ernesto Herrera) and 22nd
placer (Mamintal Tamano).
On July 24, 1987, however, respondent Comelec, by a vote of five to two,
announced its second decision reversing its earlier decision of July 16,
1987 of dismissal of Sanchez' petition and that it was instead granting
Sanchez' petition for recount and/or re-appreciation of ballots. Comelec
actually released this second decision on July 30, 1987.
On August 3, 1987, Enrile filed with this Court his second petition [G.R. No.
79212 Juan Ponce Enrile v. Comelec and Augusto S. Sanchez] to (1)
annul the Comelec decision granting Sanchez' petition for recount; and (2)
to compel it to proclaim Enrile as duly-elected senator, with prayer for
issuance of a temporary restraining order. Enrile alleged that the Comelec
exceeded its jurisdiction in granting Sanchez' petition for recount and
abused its discretion in refusing to proclaim him (Enrile on the ground that
Sanchez' petition for recount is not a pre-proclamation controversy which
involves issues affecting extrinsic validity, and not intrinsic validity, of the
said election returns and that as of July 25, 1987 up to now, Rasul's lead
over him was only 1,916 votes while his lead over Sanchez was 73,034
votes, with only 31,000 votes remaining to be canvassed in the three (3)
towns of Sulu and fifteen (15) precincts in Lanao del Sur could not offset
his lead over Sanchez.

jurisdiction of the Senate Electoral Tribunal as "the sole judge of all

contests relating to the election, returns and qualification of the [Senate's]
members." (Art. VI, Sec. 17, Constitution)
Without prejudice to the issuance of an extended opinion and after taking
into consideration the applicable legal provisions and the contentions of
the contending candidates as well as the two conflicting decisions of the
Comelec, the Court rules that Sanchez' petition for recount and/or reappreciation of the ballots cast in the senatorial elections does not present
a proper issue for a summary pre-proclamation controversy. Considerations
of definition, usage, doctrinal jurisprudence and public policy demand such
a ruling.
1. Sanchez anchors his petition for recount and/or reappreciation on
Section 243, paragraph (b) of the Omnibus Election Code 1 in relation to
Section 234 thereof 2 with regard to material defects in canvassed election
returns. He contends that the canvassed returns discarding "Sanchez"
votes as stray were "incomplete" and therefore warrant a recount or
reappreciation of the ballots under Section 234. A simple reading of the
basic provisions of the cited Section shows readily its inapplicability. By
legal definition and by the very instructions of the Comelec (Res. No. 1865,
Sec. 6, promulgated on March 11, 1987), an election return is incomplete if
there is "omission in the election returns of the name of any candidate
and/or his corresponding votes" (Sec. 234) or "in case the number of votes
for a candidate has been omitted." (Sec. 6, Res. No. 1865)

In its resolution of August 4, 1987, the Court, inter alia, required

respondents to comment on Enrile's petition against the Comelec's recount
decision, and directed the maintenance of the status quo. The parties were
heard in oral argument at the joint hearing held on August 6, 1987, and the
cases were thereafter submitted for resolution.

Here, the election returns are complete and indicate the name of Sanchez
as well as the total number of votesthat were counted and appreciated as
votes in his favor by the boards of inspectors. The fact that some votes
written solely as "Sanchez" were declared stray votes because of the
inspectors' erroneous belief that Gil Sanchez had not been disqualified as a
candidate, involves an erroneous appreciation of the ballots. It is
established by the law as well as jurisprudence (the cited section being a
substantial reproduction of Section 172 of the 1978 Election Code and
previous election laws) that errors in the appreciation of ballots by the
board of inspectors are proper subject for election protest and not for
recount or reappreciation of the ballots.

The basic issue at bar which Sanchez himself avers in his petition is "a
case of first impression" is whether his petition for recount and/or reappreciation of ballots filed with the Comelec may be considered a
summary pre-proclamation controversy falling within the Comelec's
exclusive jurisdiction (Sec. 242, Omnibus Election Code) or properly
pertains to the realm of election protest falling within the exclusive

2. The appreciation of the ballots cast in the precincts is not a "proceeding

of the board of canvassers" for purposes of pre-proclamation proceedings
under section 241, Omnibus Election Code, but of the boards of election
inspectors who are called upon to count and appreciate the votes in
accordance with the rules of appreciation provided in section 211, Omnibus
Election Code. Otherwise stated, the appreciation of ballots is not part of

the proceedings of the board of canvassers. The function of ballots

appreciation is performed by the boards of election inspectors at the
precinct level.
3. The scope of pre-proclamation controversy is limited to the issues
enumerated under sec. 243 of the Omnibus Election Code. The
enumeration therein of the issues that may be raised in pre-proclamation
controversy, is restrictive and exclusive. In the absence of any clear
showing or proof that the election returns canvassed are incomplete or
contain material defects (sec. 234), appear to have been tampered with,
falsified or prepared under duress (sec. 235) and/or contain discrepancies
in the votes credited to any candidate, the difference of which affects the
result of the election (sec. 236), which are the only instances where a preproclamation recount maybe resorted to, granted the preservation of the
integrity of the ballot box and its contents, Sanchez' petition must fail. The
complete election returns whose authenticity is not in question, must be
prima facie considered valid for the purpose of canvassing the same and
proclamation of the winning candidates.
4. To expand the issues beyond those enumerated under sec. 243 and
allow a recount/re-appreciation of votes in every instance where a claim of
misdeclaration of stray votes is made would open the floodgates to such
claims and paralyze canvass and proclamation proceedings, given the
propensity of the loser to demand a recount. The law and public policy
mandate that all pre-proclamation controversies shall be heard summarily
by the Commission after due notice and hearing and just as summarily
decided. (Sec. 246, Omnibus Election Code)
5. The Court has always stressed as in Alonto vs. Comelec 3 that "the policy
of the election law is that pre-proclamation controversies should be
summarily decided, consistent with the law's desire that the canvass and
proclamation be delayed as little as possible. As declared in Abes et al. vs.
Commission on Elections, L-28348, December 15, 1967, the powers of the
Comelec are essentially executive and administrative in nature, and the
question of whether or not there had been terrorism, vote buying and other
irregularities in the election should be ventilated in a regular election
protest, and the Commission on Elections is not the proper forum for
deciding such matters," and that the Comelec and the courts should guard
"both against proclamation grabbing through tampered returns" and "the
equally pernicious effects of excessive delay of proclamations" and
"attempts to paralyze canvassing and proclamation." To allow the recount
here notwithstanding the multifarious administrative and financial
problems of conducting such a recount, as enumerated by the Comelec in
its two decisions when now three months after the elections the

question of who is entitled to the 24th seat of the Senate would remain
unresolved for how long no one can tell is unthinkable and certainly
contrary to public policy and the mandate of the law that the results of the
election be canvassed and reported immediately on the basis of the
authentic returns which must be accorded prima facie status as bona fide
reports of the votes cast for and obtained by the candidates. 4
6. Election cases involved not only the adjudication of the private interest
of rival candidates but also the paramount need of dispelling the
uncertainty which beclouds the real choice of the electorate with respect to
who shall discharge the prerogatives of the offices within their gift. They
are imbued with public interest (Vda. de Mesa v. Mencias, 18 SCRA 533,
538).
7. The ground for recount relied upon by Sanchez is clearly not among the
issues that may be raised in a pre- proclamation controversy. His allegation
of invalidation of "Sanchez" votes intended for him bear no relation to the
correctness and authenticity of the election returns canvassed. Neither the
Constitution nor statute has granted the Comelec or the board of
canvassers the power in the canvass of election returns to look beyond the
face thereof, once satisfied of their authenticity (Abes v. Comelec, 21 SCRA
1252,1256).
8. In Grand Alliance for Democracy v. Comelec, et al., G.R. No. 78302,
promulgated May 27, 1987, the Court restated certain principles governing
canvass proceedings, which are fully applicable here, mutatis mutandis, to
wit:
The Court has restated the settled doctrine in senatorial
elections in Ilarde v. Commission on Elections, 31 SCRA 72,
thus: "Canvass proceedings are administrative and
summary in nature, and a strong prima facie case backed
up by a specific offer of evidence and indication of its
nature and importance has to be made out to warrant the
reception of evidence aliunde and the presentation of
witnesses and the delays necessarily entailed thereby.
Otherwise,
the
paralyzation
of
canvassing
and
proclamation proceedings leading to a vacuum in so
important and sensitive an office as that of Senator of the
Republic could easily be brought about this time involving
the eight place and next time involving perhaps all the
eight places, when it is considered that the position of
senator is voted for, nationwide by all the voters of the 66
provinces and 57 cities comprising the Philippines."

And in Anni v. Izquierdo 57 SCRA 692, the Court declared

that. "The decisive factor is that where it has been duly
determined
by
Comelec
after
investigation
and
examination of the voting and registration records that
actual voting and election by the registered voters had
taken place in the questioned precincts, the election
returns cannot be disregarded and excluded with the
resulting disenfranchisement of the voters but must be
accorded prima facie status as bona fide reports of the
result of the voting for canvassing and proclamation
purposes."
As the Court stated in Anni v. Rasul, 46 SCRA 758, "The
rule has been time-tested. To allow a respondent in the
Comelec to raise belated questions concerning returns at
any time during the pendency of the case on review before
the Comelec notwithstanding that he has not originally
raised such questions before the canvassing board and
only when he finds his position endangered would mean
undue delays in pre-proclamation proceedings before the
Comelec, ... The Court has stressed that Comelec and the
courts should guard both against the proclamation
grabbing through tampered and spurious returns as well as
attempts and machinations to paralyze canvassing and
proclamation ...
It should be added that the other alleged irregularities,
such as the omissions of the Commission on Elections in
the distribution and protection of the election forms and
paraphernalia, involve the discharge of its administrative
duties and so do not come under the jurisdiction of this
Court, which can review the decisions, orders and rulings of
the body only in cases of grave abuse of discretion
committed by it in the discharge of its quasi-judicial powers
(Aratuc v. Commission on Elections, 88 SCRA 251; Guevara
v. Commission on Elections, G.R. No. L-12596, July 31,
1958; Filipinas Engineering Co. v. Ferrer, 135 SCRA 25).
9. As of July 25, 1987, and as the canvassing results stand, Rasul as of her
proclamation as the 23rd Senator-elect, had a lead over Enrile of 1,910
votes, while Enrile had a lead over Sanchez of 73,034 with only 31,000
votes still to be canvassed (in three municipalities of Sulu and in 15
precincts of Lanao del Sur.). Said uncanvassed votes (31,000) are clearly
not sufficient in number to offset the 73,034 votes lead of Enrile over

Sanchez, even if awarded to the latter. There is no need to wait for the
canvass of the votes from the 3 municipalities of Sulu and the 15 precincts
in Lanao del Sur, which still remains up to this late day a big question mark
of when and how they will finally get canvassed, assuming their integrity
has been preserved. Candidate Juan Ponce Enrile is therefore entitled to
proclamation as the 24th senator-elect in the May 11, 1987 elections.
Enrile's petition against Rasul has been rendered moot.
ACCORDINGLY, the Petition in G.R. No. 79212 (Juan Ponce Enrile v.
Commission on Election and Augusto Sanchez) is hereby GRANTED and the
decision of respondent Commission on Elections promulgated on July 30,
1987 granting Sanchez' petition for recount is hereby SET ASIDE. The
respondent Comelec is hereby ordered to proclaim petitioner Juan Ponce
Enrile as a duly elected senator in the May 11, 1987 elections. The
petitions in G.R. No. 78461 (Augusto S. Sanchez v. Commission on Election)
and G.R. No. 79146 (Juan Ponce Enrile v. Commission on Elections and
Santanina T. Rasul) are both DISMISSED. This decision shall be
IMMEDIATELY EXECUTORY upon its promulgation.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin and Cortes, JJ., concur.
Melencio-Herrera, J., is on leave.

G.R. No. 94771 July 29, 1992

ATTY. RAMON J. VELORIA, ENGR. RENATO J. ESPEJO, JESUS O.
BANDOLIN, SEGUNDO D. BILLOTE, GERONIMO B. ENRIQUEZ,
RODOLFO C. MADRIAGA, and SOFRONIO L. MANGONON, and HON.
ROMULO E. ABASOLO, as Presiding Judge-Designate, Regional Trial
Court,
First
Judicial
Region,
Branch
49,
Urdaneta,
Pangasinan, petitioners,
vs.
COMMISSION ON ELECTIONS, composed of DARIO C. RAMA,
Commissioner-Ponente, HAYDEE B. YORAC, Acting Chairperson,
ALFREDO E. ABUEG, Commissioner, LEOPOLDO L. AFRICA,
Commissioner, ANDRES R. FLORES, Commissioner, MAGDARA B.
DIMAAMPAO, Commissioner, HON SANTIAGO G. ESTRELLA, as
Presiding Judge, Regional Trial Court, First Judicial Region, Branch
49, Urdaneta, Pangasinan, ATTY. PEDRO N. SALES, ENGR.
WILFREDO E. SORIANO, ERLINDA C. TAMBAOAN, ENGR. EMILIO M.
ANGELES, JR., ELEUTERIO C. SISON, MANUEL FERRER and SANTOS
SIBAYAN, respondents.

GRIO-AQUINO, J.:
This petition for certiorari seeks the nullification of the (1) resolution 1 of
the Commission on Elections dated August 2, 1990, and (2)
resolution 2 dated March 7, 1990 issued by Judge Santiago Estrella
dismissing the election protest filed by the petitioners against the private
respondents, Atty. Pedro N. Sales. Engr. Wilfredo E. Soriano, Erlinda C.
Tambaoan, Engr. Emilio M. Angeles, Jr., Eleuterio C. Sison, Manuel Ferrer
and Santos Sibayan.
The seven (7) petitioners, Ramon Veloria, Renato Espejo, Jesus Bandolin,
Segundo Billote, Geronimo Enriquez, Rodolfo Madriaga and Sofronio
Mangonon, as well as the seven (7) private respondents, Pedro Sales,
Wilfredo Soriano, Erlinda Tambaoan, Emilio Angeles, Jr., Eleuterio Sison,
Manuel Ferrer and Santos Sibayan were candidates for municipal mayor
(Veloria and Sales), vice-mayor (Espejo and Soriano) and members of the
Sangguniang Bayan of Manaoag, Pangasinan, in the local elections of
January 18, 1988.
After the canvass of the election returns on January 31, 1988, the private
respondents were proclaimed duly elected to the positions they ran for.

Dissatisfied, the petitioners filed Election Protest No. U-4659 which was
raffled to Branch 48 of the Regional Trial Court of Urdaneta, Pangasinan,
then presided over by the late Hon. Alfredo de Vera.
Several proceedings were had, and some issues were brought up to the
Court of Appeals and this Court for determination.
Finally, the revision of ballots was set on February 26, 1990 by Judge
Santiago Estrella, Presiding Judge of Branch 49, Regional Trial Court of
Urdaneta, Pangasinan, where the Election Protest No. U-4659 was reassigned by raffle after Judge Vera's untimely death.
On February 26, 1990, during the scheduled initial revision of the ballots in
Precinct No. 22, Barangay Licsi, the private respondents, as protestees,
filed a "Motion to Dismiss" on the ground that the RTC had not acquired
jurisdiction over the election protest on account of the following:
(1) that the election protest involves the contests over
three (3) different Municipal Offices joined together in one
(1) single petition namely: the Office of Municipal Mayor,
the Office of Vice Mayor, and the Offices of the
Sangguniang Bayan, in wanton violation and clear
disregard of the specific and mandatory provisions of
Section 2, Rule 35, Part VI of the COMELEC RULES OF
PROCEDURE, and/or Section 2, Rule II of Comelec
Resolution No. 1451 (Procedural Rules for Election
Contests);
(2) that the Election Protest was verified by only four (4) of
the seven (7) protestants in violation of Section 6, Rule 35,
Part VI of the COMELEC RULES OF PROCEDURE, and/or
Section 3, Rule II of Comelec Resolution No. 1451; and
(3) that there is no showing that the protestants paid the
requisite filing fees and legal research fees for each
interest, also in violation of Section 9, Rule 35, Part VI of
the COMELEC RULES OF PROCEDURE, and/or Section 6,
Rule IV of the Procedural Rules for Election Contests.
On March 5, 1990, the private respondents filed a Supplemental Motion to
Dismiss, alleging as additional ground for the dismissal of the protest that:

(4) the seven (7) protestants representing seven (7)

interests or seven (7) election contests or protests failed to
make the necessary cash deposit within the period
required by this Honorable Court in clear violation of
Section 10, subparagraph (b) of Rule 35, Part VI of the
COMELEC RULES OF PROCEDURE.
The petitioners-protestants opposed the Motion to Dismiss. On March
7, 1990, Judge Santiago Estrella dismissed the election protest (p.
27, Rollo).
The petitioners received a copy of the court's Resolution on March 15,
1990. However, instead of perfecting an appeal within five (5) days as
provided by law, the petitioners filed a Motion for Reconsideration on
March 20, 1990.
The protestees opposed the Motion for Reconsideration, and the petitioners
filed a Rejoinder.
In the meantime, Judge Romulo E. Abasolo, presiding judge of Branch 47,
RTC of Urdaneta, Pangasinan, was assigned to take charge of the cases in
Branch 49 in view of Judge Santiago Estrella's detail in Branch 69, Regional
Trial Court of Pasig, Metro Manila, by order of this Court.
On March 29, 1990, Judge Abasolo denied petitioners' Motion for
Reconsideration. On April 3, 1990, the petitioners (as protestants) filed a
Notice of Appeal.
On April 10, 1990, the private respondents filed a "Motion to Dismiss
Notice of Appeal" on the grounds, that:
1. the Notice of Appeal was filed out of time in violation of
Section 256, Art. XXI of the Omnibus Election Code of the
Philippines (BP Blg. 881) and/or Section 22, Rule 35, Part VI
of the COMELEC Rules of Procedure.
2. the Resolution of the trial court dated March 7, 1990
dismissing the election protest had already become final
and executory.
On May 10, 1990, Judge Abasolo gave due course to petitioners' Notice of
Appeal.

The private respondents (as protestees) sought recourse in the

Commission on Elections (COMELEC) by a petition for certiorari and
Prohibition with a Prayer for a Writ of Preliminary Injunction or Restraining
Order (SPR No. 8-90) to annul Judge Abasolo's order giving due course to
the appeal.
On May 30, 1990, the Commission en banc issued a Temporary Restraining
Order enjoining Judge Abasolo from implementing his Order of May 10,
1990.
On June 14, 1990, the Commission en banc issued the following Order
defining the issues:
After a thorough discussion of the issues, the following
crystallized as the only issues to be presented for
resolution by the Commission, namely: (1) the issue of
whether or not a Motion for Reconsideration in electoral
cases is a prohibited pleading; and (2) the parties agreed
that in case the answer to the first issue is "yes," the notice
of appeal was filed out of time and in case the answer is
"no," the notice of appeal was filed on time.
Having agreed on these issues, the parties also agreed to
submit the same for resolution on the basis thereof. (p.
20, Rollo.)
On August 2, 1990, the COMELEC granted the petition for certiorari. The
dispositive portion of its resolution reads:
WHEREFORE, premises considered, the Commission En
Banc RESOLVES, as it hereby RESOLVES, to:
1. GRANT the petition for Certiorari;
2.
Permanently
ENJOIN
Public
Respondent
implementing the order of May 10, 1990: and

from

3. ORDER the Court a quo to proceed with the disposition

of Election Protest Case No. U-4659 in accordance with the
Resolution of March 7, 1990 dismissing the election protest
against herein Petitioners. (pp. 22-23, Rollo.)

Hence, this special civil action of Certiorari and Prohibition with prayer for a
writ of preliminary injunction and/or temporary restraining order, filed on
August 31, 1990 by the petitioners (protestants below), pursuant to Rule
39, Section 1, COMELEC RULES OF PROCEDURE (on Review of decisions of
the COMELEC) attacking:

Sec. 20. Promulgation and Finality of Decision. The

decision of the court shall be promulgated on a date set by
it of which due notice must be given the parties. It shall
become final five (5) days after promulgation. No motion
for reconsideration shall be entertained. (Emphasis
supplied.)

1. the Resolution of the COMELEC En Banc dated August 2, 1990; and

2. the Resolution of Judge Santiago Estrella dated March 7, 1990 dismissing
the election protest of the petitioners.
Without giving due course to the petition, we required the respondents to
comment.
After the latter had filed their Comments (pp. 37-63, 110-124, Rollo), the
petitioners asked for extensions of time to reply (which the Court granted
but they did not file the promised pleading).
As grounds of this petition, the petitioners allege that the questioned
resolutions are not only erroneous but were issued by the COMELEC "with
grave abuse of discretion tantamount to lack of jurisdiction."
There is no merit in this petition for review for the COMELEC correctly
found that the petitioners' appeal from the court's order dismissing their
election protest was indeed tardy. It was tardy because their motion for
reconsideration did not suspend their period to appeal. The petitioners'
reliance on Section 4, Rule 19 of the COMELEC RULES OF PROCEDURE
which provides:
Sec. 4. Effect of motion for reconsideration on period to
appeal. A motion to reconsider a decision, resolution,
order, or ruling when not pro-forma, suspends the running
of the period to elevate the matter to the Supreme Court.
is misplaced. The "motion for reconsideration" referred to above is a
motion for reconsideration filed in the COMELEC, not in the trial court
where a motion for reconsideration is not entertained.
The rule applicable to decisions or orders of the court in election protests is
Section 20, Rule 35 of the COMELEC RULES OF PROCEDURE which
provides:

The above COMELEC rule implements Section 256 of the Omnibus Election
Code quoted below:
Sec. 256. Appeals. Appeals from any decision rendered
by the regional trial court under Section 251 and paragraph
two,
Section
253
hereof
with
respect
to quowarranto petitions filed in election contests affecting
municipal officers, the aggrieved party may appeal to the
Intermediate Appellate Court [now Commission on
Elections] within five days after receipt of a copy of the
decision. No
motion
for reconsideration
shall
be
entertained by the Court. The appeal shall be decided
within sixty days after the case has been submitted for
decision. (Emphasis supplied.)
Petitioners admitted receipt of the resolution of the trial court dated March
7, 1990 on March 15, 1990 but they filed a notice of appeal on April 3,
1990 only, instead of on or before March 20, 1990 (five days from receipt
of the trial court's decision), because they filed a motion for
reconsideration which, as previously stated, is prohibited by Section 256 of
the Omnibus Election Code and Section 20, Rule 35 of the COMELEC RULES
OF PROCEDURE.
The COMELEC, therefore, correctly ruled that the motion for
reconsideration filed by the petitioners in the trial court on March 20, 1990
did not suspend the period to appeal since a "motion for reconsideration"
is prohibited under Section 256 of the Omnibus Election Code.
Since the right to appeal is not a natural right nor is it a part of due
process, for it is merely a statutory privilege that must be exercised in the
manner and according to procedures laid down by law (Borre vs. Court of
Appeals, 158 SCRA 560), and its timely perfection within the statutory
period is mandatory and jurisdictional (Delgado vs. Republic, 164 SCRA
347; Sembrano vs. Ramirez, 166 SCRA 30; PCI Bank vs. Ortiz, 150 SCRA
380; Quiqui vs. Boncaros, 151 SCRA 416), Judge Abasolo gravely abused
his discretion when he gave due course to the petitioners' tardy appeal
from his predecessor's (Judge Santiago Estrella's) resolution of March 7,

1990 dismissing the petitioners' election protest. Said resolution had

become final and unappealable.

(4) Section 5[1] of Republic Act No. 6734, or the Organic

Act for the Autonomous Region in Muslim Mindanao, to the
newly created Shari'ah Appellate Court; and

Nevertheless, we must grant this petition for certiorari for the COMELEC
does not possess jurisdiction to grant the private respondents' petition
for certiorari. This Court, through Mme. Justice Ameurfina A. MelencioHerrera, in the consolidated cases of "Garcia, et al. vs. COMELEC, et al."
(G.R. No. 88158)and "Tobon Uy vs. COMELEC and Neyra" (G.R. Nos. 9710809) promulgated on March 4, 1992, ruled that the COMELEC has not been
given, by the Constitution nor by law, jurisdiction to issue writs
of certiorari, prohibition and mandamus:
In the Philippine setting, the authority to issue Writs of
Certiorari, Prohibition and Mandamus involves the exercise
of original jurisdiction. Thus, such authority has always
been expressly conferred, either by the Constitution or by
law. As a matter of fact, the well-settled rule is that
jurisdiction is conferred only by the Constitution or by law.
(Orosa, Jr. vs. Court of Appeals, G.R. Nos. 76828-32, 28
January 1991; Bacalso vs. Ramolete, G.R. No. L-22488, 26
October 1967, 21 SCRA 519). It is never derived by
implication. Indeed, "[w]hile the power to issue the writ
of certiorari is in some instance conferred on all courts by
constitutional or statutory provisions, ordinarily, the
particular courts which have such power are expressly
designated" (J.
Aquino's
Concurring
Opinion
in
Pimentel, supra, citing 14 C.J. S. 202; Emphasis supplied).
Thus, our Courts exercise the power to issue Writs
of Certiorari, Prohibition and Mandamus by virtue of
express constitutional grant or legislative enactments. To
enumerate:
(1) Section 5[l], Article VIII of the 1987 Constitution
conferred upon this Court such jurisdiction;

(5) Article 143 [e], Chapter I, Title I, Book IV of Presidential

Decree No. 1083, or the Code of Muslim Personal Law, to
Shari'a District Courts.
Significantly, what the Constitution granted the COMELEC
was appellate jurisdiction. The Constitution makes no
mention of any power given the COMELEC to exercise
original jurisdiction over Petitions for Certiorari, Prohibition
and Mandamus unlike in the case of the Supreme Court
which was specifically conferred such authority (Art. VIII,
Sec. 5[1]. The immutable doctrine being that jurisdiction is
fixed by law, the power to issue such Writs can not be
implied from the mere existence of appellate jurisdiction.
Just as implied repeal of statutes are frowned upon, so also
should the grant of original jurisdiction by mere implication
to a quasi-judicial body be tabooed. If appellate jurisdiction
has to be statutorily granted, how much more the original
jurisdiction to issue the prerogative Writs?
In view of this pronouncement, an original special civil action of certiorari,
prohibition or mandamus against a regional trial court in an election
contest may be filed only in the Court of Appeals or in this Court, being the
only courts given such original jurisdiction under the Constitution and the
law.
WHEREFORE, the petition for certiorari is GRANTED. The Resolution dated
August 2, 1990, of the COMELEC en banc is annulled for lack of jurisdiction.
The Resolution dated March 7, 1990 of RTC Judge Santiago Estrella,
dismissing the election protest of the petitioners is AFFIRMED and declared
final and executory. Costs against the petitioners.
SO ORDERED.

(2) Section 9[1] of Batas Pambansa Blg. 129, or the

Judiciary Regorganization Act of 1980, to the Court of
Appeals (then Intermediate Appellate Court).
(3) Section 21[l] of the said Act, to Regional Trial Courts;

G.R. No. 168253

March 16, 2007

MAYOR
NOEL
vs.
COMMISSION ON ELECTIONS,
VICTOR IMPERIAL, Respondents.

E.
Second

ROSAL, Petitioner,
Division,

and

MICHAEL

x- - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 172741

March 16, 2007

MAYOR
NOEL
E.
vs.
COMMISSION
ON
ELECTIONS
and
IMPERIAL, Respondents.

ROSAL, Petitioner,
MICHAEL

VICTOR

DECISION
CORONA, J.:
Petitioner Noel E. Rosal and private respondent Michael Victor C. Imperial
were candidates for mayor of Legaspi City in the May 10, 2004 elections.
After the counting and canvassing of votes, petitioner was proclaimed as
the duly elected mayor of Legaspi City, having received 44,792 votes over
private respondents 33,747 and thereby winning by a margin of 11,045
votes.
On May 24, 2004, private respondent instituted a petition to annul the
proclamation,1 assailing the canvass of election returns in the 520
precincts that had functioned during the election. On July 6, 2004, the case
was superseded by an election protest filed by private respondent with the
Commission on Elections (Comelec) contesting the results of the election in
all 520 precincts on the grounds of miscounting, misreading and
misappreciation of votes, substitute voting, disenfranchisement of voters,
substitution and padding of votes, and other alleged irregularities. The
protest was docketed as EPC No. 2004-61 and raffled to the Second
Division of the Comelec.
After an initial hearing on private respondents protest and petitioners
answer, the Second Division issued on November 17, 2004 an order
directing the collection of the ballot boxes from the contested precincts
and their delivery to the Comelec. On December 16, 2004, private
respondent filed a manifestation2 apprising the Second Division of the fact

that out of the 520 ballot boxes retrieved for delivery to the Comelec, 95
had no plastic seals, 346 had broken plastic seals and only 79 remained
intact with whole plastic seals and padlocks.
Revision of the contested ballots commenced in mid-January of 2005 3 and
concluded on February 2, 2005. The revision report indicated a reduction in
petitioners vote count from 44,792 votes to 39,752 and an increase in that
of private respondent from 22,474 to 39,184 votes. Shortly thereafter,
petitioner filed a "motion for technical examination of contested ballots" on
the ground that thousands of ballots revised by the revision committees
were actually spurious ballots that had been stuffed inside the ballot boxes
sometime after the counting of votes but before the revision proceedings.
The Second Division denied the motion.
After the revision, the case was set for hearing on February 24, 2005. In
that hearing, private respondent manifested that he would no longer
present testimonial evidence and merely asked for time to pre-mark his
documentary evidence. On March 9, 2005, private respondent filed his
formal offer of evidence, thereby resting his case and signaling petitioners
turn to present evidence in his defense.
On March 17, 2005, the first hearing set for the presentation of his
evidence, petitioner was directed to pre-mark his exhibits and formalize his
intention to have his witnesses subpoenaed. Accordingly, petitioner filed
on April 11, 2005 a motion for issuance of subpoena duces tecum and ad
testificandum to witnesses whose testimonies would allegedly prove that a
significant number of the revised ballots were not the same ballots that
had been read and counted by the Board of Election Inspectors (BEI) during
the election.
In an order dated April 25, 2005, 4 the Second Division ruled that the
testimonies of the proposed witnesses were "unnecessary" inasmuch as
the Comelec had the authority and wherewithal to determine by itself the
ballots authenticity and, for that reason, denied the motion and directed
petitioner to file forthwith his formal offer of evidence.
Asserting his right to present evidence in his defense, petitioner filed on
May 6, 2005 a motion for reconsideration of the April 25, 2005 order. In an
order dated May 12, 2005, the Second Division denied the motion.
On June 4, 2005, petitioner filed an Ad Cautela (sic) Offer of Protestees
Evidence5 as a precautionary measure against the foreclosure of his right
to comply with the Second Divisions April 25, 2005 order. Petitioners

evidence included: (1) provincial election supervisor Serranos report that,

at the time he took custody of the ballot boxes, their security seals bore
signs of having been tampered with and (2) the affidavits of 157 BEI
chairpersons who swore to the effect that the authenticating signatures on
certain ballots6 identified and enumerated in their affidavits (that is,
signatures purporting to be theirs) were clear forgeries.
On June 15, 2005, petitioner filed in this Court a petition for
certiorari7 under Rule 65 of the Rules of Court (docketed as G.R. No.
1628253) assailing the April 25 and May 12, 2005 orders of the Comelecs
Second Division for having been rendered with grave abuse of discretion.
Petitioner complained, in substance, that the Second Division had, by these
orders, denied him due process by effectively depriving him of a
reasonable opportunity to substantiate with competent evidence his
contention that the revised ballots were not the same ballots cast and
counted during the elections, meaning, the revised ballots were planted
inside the ballot boxes after the counting of votes (in place of the genuine
ones) pursuant to a fraudulent scheme to manufacture grounds for a
successful election protest.
Meanwhile, the Second Division continued with the proceedings and,
following the submission of the parties memoranda, considered EPC No.
2004-61 submitted for resolution.
In a resolution8 dated January 23, 2006, the Second Division then
composed of only two sitting members, namely, Presiding Commissioner
Mehol Sadain (now retired) and Commissioner Florentino Tuason, Jr.
declared private respondent Imperial the winning candidate for mayor of
Legaspi City and ordered petitioner Rosal to vacate said office and turn it
over peacefully to private respondent.
Commissioner Sadain, who wrote the main opinion, relied on the election
return count only in precincts the ballot boxes of which were found to
contain fake ballots notwithstanding petitioners assertion that genuine but
otherwise invalid ballots might have been switched with the ones actually
cast in the elections. These numbered a mere 129 precincts. For the rest,
he examined, appreciated and counted the ballots themselves, invalidating
in the process over 14,000 ballots cast for petitioner for having been
written by two persons or for being in groups written by one hand.
Commissioner Sadain ended up crediting private respondent with 32,660
valid votes over 30,517 for petitioner.

Commissioner Tuason filed a separate concurring opinion 9 manifesting

disagreement with Commissioner Sadains appreciation of certain ballots
but arriving at the same practical result.
On January 30, 2006, petitioner filed a motion for reconsideration of the
Second Divisions resolution. The motion was denied by the Comelec en
banc in a resolution dated May 29, 2006. 10 In due time, petitioner came to
this Court with a petition for certiorari and prohibition assailing the
Comelec en banc resolution. The case was docketed as G.R. No. 172741
and consolidated with G.R. No. 168253.11
Interlocutory Orders and Rule 65
Before focusing on the merits of this case, the Court sees fit to address a
procedural concern with respect to G.R. No. 168253. Private respondent
has persistently thrust upon us the proposition that the April 25, 2005
order subject of the petition in G.R. No. 168253, being, as it is, an
interlocutory order rendered by a division of the Comelec, cannot be
assailed by means of a special civil action for certiorari, as only final orders
of the Comelec en banc can be brought to the Supreme Court by that
mode.
We disagree. Section 1, Rule 65 of the Rules of Court, which governs
petitions for certiorari, provides that:
When any tribunal, board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction, and
there is no appeal, or any plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and praying
that judgment be rendered annulling or modifying the proceedings of such
tribunal, board or officer, and granting such incidental reliefs as law and
justice may require.
xxx xxx xxx
Under the foregoing provision, one may resort to a special civil action for
certiorari under three conditions:
(1) the petition must be directed against a tribunal, board or officer
exercising judicial or quasi-judicial functions;

(2) the tribunal, board or officer has acted without or in excess of

jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction; and
(3) there is no plain, speedy and adequate remedy in the ordinary
course of law.
Other than these three, the Supreme Courts jurisdiction over petitions for
certiorari has no preset boundaries.Any act by an officer or entity
exercising judicial or quasi-judicial functions, if done without or in excess of
jurisdiction or with grave abuse of discretion, may be assailed by means of
a special civil action for certiorari when no appeal or any other plain,
speedy and adequate remedy in the ordinary course of law is available. In
other words, no judicial or quasi-judicial act or order is excluded a
priori from the ambit of the Supreme Courts power to correct through the
writ of certiorari. It is therefore incorrect to say that interlocutory orders
issued by a division of the Comelec, or by any judicial or quasi-judicial body
for that matter, are beyond the reach of this Court.
That the Supreme Court has jurisdiction over petitions for certiorari
assailing interlocutory orders rendered by a Comelec division from which
no recourse to the Comelec en banc could be had was, in fact,
acknowledged in Kho v. Commission on Elections.12 In that case, Kho, an
election protestant, filed a petition for certiorari in the Supreme Court
questioning the Comelec First Divisions interlocutory orders relating to the
admission of his opponents belatedly filed answer.
One of the issues in Kho was whether the controversial orders should have
first been referred to the Comelec en banc. Citing Section 5(c), Rule 3 of
the Comelec Rules of Procedure which states that:
[a]ny motion to reconsider a decision, resolution, order or ruling of a
Division shall be resolved by the Commission en banc except motions on
interlocutory orders of the division which shall be resolved by the division
which issued the order
this Court ruled that the authority to resolve such incidental matters fell on
the division itself. The Court went on to say that:
where the Commission in division committed grave abuse of discretion or
acted without or in excess of jurisdiction in issuing interlocutory orders
relative to an action pending before it and the controversy did not fall
under any of the instances mentioned in Section 2, Rule 3 of the COMELEC

Rules of Procedure [which enumerates the cases in which the Comelec may
sit en banc],13 the remedy of the aggrieved party is not to refer the
controversy to the Commission en banc as this is not permissible under its
present rules but to elevate it to this Court via a petition for certiorari
under Rule 65 of the Rules of Court.14
In fine, Kho tells us that an interlocutory order of a Comelec division should
be challenged at the first instance through a proper motion, such as a
motion for reconsideration, filed with the division that rendered the order. If
that fails and no other plain, speedy and adequate remedy (such as
recourse to the Comelec en banc) is available, the party aggrieved by the
interlocutory order may elevate the matter to the Supreme Court by means
of a petition for certiorari on the ground that the order was issued without
or in excess of jurisdiction or with grave abuse of discretion.
Private respondent asserts, however, that Kho has been superseded by the
more recent case of Repol v. Commission on Elections 15 from which he cites
the dictum that:
[t]he Supreme Court has no power to review via certiorari an interlocutory
order or even a final resolution of a Division of the COMELEC. Failure to
abide by this procedural requirement constitutes a ground for dismissal of
the action.16
Again, we disagree.
There is no contradiction between Kho and Repol that calls for the
application of the doctrine that a later judgment supersedes a prior one in
case of inconsistency. In Repol, the petitioner went directly to the Supreme
Court from an interlocutory order of the Comelec First Division without first
filing a motion for reconsideration with said division. That was properly a
cause for concern inasmuch as failure to move for reconsideration of the
act or order before challenging it through a petition for certiorari often
constitutes a ground for dismissal for non-compliance with the condition in
Rule 65: that resort to certiorari should be justified by the unavailability of
an appeal or any other plain, speedy and adequate remedy in the ordinary
course of law. In the end, however, the Court in Repol applied the ruling
in ABS-CBN Broadcasting Corporation v. COMELEC 17 that an exception to
the procedural requirement of filing a motion for reconsideration was
warranted since there was hardly enough time to move for reconsideration
and obtain a swift resolution in time for the impending elections.

A sensible reading of our decision shows that Repol was not a negation or
repudiation of this Courts jurisdiction over petitions for certiorari from
interlocutory orders rendered by a Comelec division. Had it been so, then
we would have dismissed the petition on the ground that it was beyond our
jurisdiction. Rather, this Court in Repolmerely applied the rule that a
petition for certiorari must be justified by the absence of a plain, speedy
and adequate remedy in the ordinary course of law; we said that the rule
had been satisfied inasmuch as a motion for reconsideration was not a
plain, speedy and adequate remedy under the circumstances.
Repol therefore merely serves as a reminder that, in a petition for certiorari
from an interlocutory order, the petitioner bears the burden of showing
that the remedy of appeal taken after a judgment or final order (as
opposed to an interlocutory one) has been rendered will not afford
adequate and expeditious relief,18 as it is often the better practice for a
party aggrieved by an interlocutory order to continue with the case in due
course and, in the event of an adverse decision, appeal from it and include
the interlocutory order as one of the errors to be corrected by the
reviewing body.
In this instance, petitioner filed a motion for reconsideration of the Second
Divisions order. When that failed, no other speedy and adequate remedy
against the unpardonable vices attending the Second Divisions treatment
of the election protest was left to him except recourse to this Court under
Rule 65. Under the circumstances, he was without the shadow of a doubt
justified in taking it.
Election Protest and Ballots As Evidence
It will be recalled that the Second Division had been apprised of the ballot
boxes impaired condition even prior to the commencement of the revision
proceedings. This notwithstanding, it brushed aside petitioners
protestations that he was the victim of an ingenious post-election fraud
involving infiltration of the ballot boxes and the clever switching of ballots
actually cast with invalid ones to ensure his defeat in the election protest.
The division ruled that:
mere allegations cannot suffice to convince this Commission that switching
of ballots has occurred, absent any positive and direct evidence in the form
of fake ballots themselves being found among genuine ballots. Regardless
of any technical examination that may have been conducted or testimonial
evidence presented, as emphatically moved by the protestee but denied
by the Commission, the best proof of the alleged substitution of ballots is
the ballots themselves. And the process by which this proof is established

is by way of an evaluation of the ballots by the Commission itself during its

appreciation of the revised ballots.19
On the basis of this reasoning, the Second Division proceeded with an
appreciation and recount of the ballots from over 300 precincts and set
aside the physical count of the revised ballots in favor of the election
returns only in precincts the ballot boxes of which were found to contain
spurious ballots.
In view of the facts of this case, the Court cannot but hold that the Second
Division adopted a manifestly unreasonable procedure, one totally unfit to
address the single most vital threshold question in an election protest,
namely, whether the ballots found in the ballot boxes during the revision
proceedings were the same ballots that were cast and counted in the
elections.
The purpose of an election protest is to ascertain whether the candidate
proclaimed elected by the board of canvassers is the true and lawful choice
of the electorate.20 Such a proceeding is usually instituted on the theory
that the election returns, which are deemed prima facie to be true reports
of how the electorate voted on election day 21 and which serve as the basis
for proclaiming the winning candidate, do not accurately reflect the true
will of the voters due to alleged irregularities that attended the counting of
ballots. In a protest prosecuted on such a theory, the protestant ordinarily
prays that the official count as reflected in the election returns be set aside
in favor of a revision and recount of the ballots, the results of which should
be made to prevail over those reflected in the returns pursuant to the
doctrine that "in an election contest where what is involved is the number
of votes of each candidate, the best and most conclusive evidence are the
ballots themselves."22
It should never be forgotten, though, that the superior status of the ballots
as evidence of how the electorate voted presupposes that these were
the very same ballots actually cast and counted in the elections.
Thus, it has been held that before the ballots found in a box can be used to
set aside the returns, the court (or the Comelec as the case may be) must
be sure that it has before it the same ballots deposited by the voters. 23
Procedure to Address Post-Election Fraud
How, then, can one establish that the ballots sought to be revised are the
same ballots cast by the voters during the elections? Obviously, the proof
cannot be supplied by an examination of the ballots themselves, their

identity being the very fact in dispute. Answers may be found in

abundance in the early case of Cailles v. Gomez24 in which the following
doctrines were quoted with favor:
In an election contest the ballots cast by the voters is the primary and best
evidence of the intention of the voters, but the burden of proof is on the
contestor to show that the ballots have been preserved in the manner
provided by law and have not been tampered with, and the fact that the
ballots have been in the custody of the proper officers from the time of the
canvass to the time of the recount is only prima facie and not conclusive
proof of their integrity.
In an election contest the rule that as between the ballots and the canvass
of them, the ballots control, has no application where the ballots have been
tampered with. The court must be sure that it has before it the identical
and unaltered ballots deposited by the voters before they become
controlling as against the certificate of the election officers of the result of
the canvass.
xxx xxx xxx
Where an official count has been made, it is better evidence of who was
elected than the ballots, unless he who discredits the count shows
affirmatively that the ballots have been preserved with a care which
precludes the opportunity of tampering and all suspicion of change,
abstraction or substitution.
The law is well settled that the burden of proof is on the plaintiff, when he
seeks to introduce the ballots to overturn the official count, to show
affirmatively that the ballots have not been tampered with, and that they
are the genuine ballots cast by the voters.
In an action to contest the right of a party to an office to which he has
been declared elected, the returns of the election boards should be
received as prima facie true. In order to overcome this evidence by a
recount of the ballots cast at the election, the contestant must
affirmatively prove that the ballots have not been tampered with, and that
they remained in the same condition as they were when delivered to the
proper custody by the judges of election. If it appear to the satisfaction of
the court that the ballots have not been tampered with, it should adopt the
result as shown by the recount, and not as returned by the election board.
xxx xxx xxx

The principles of law and the rules of evidence governing cases such as
this have been so often declared that a review of the many authorities is
unnecessary. Those curious or interested in pursuing the subject will find in
the reporter's notes, preceding, many instructive cases collated by the
industry of counsel. Suffice it here to say that, while the ballots are the
best evidence of the manner in which the electors have voted, being silent
witnesses which can neither err nor lie, they are the best evidence only
when their integrity can be satisfactorily established. One who relies,
therefore, upon overcoming the prima facie correctness of the official
canvass by a resort to the ballots must first show that the ballots, as
presented to the court, are intact and genuine. Where a mode of
preservation is enjoined by the statute proof must be made of a substantial
compliance with the requirements of that mode. But such requirements are
construed as directory merely, the object looked to being the preservation
inviolate of the ballots. If this is established it would be manifestly unjust to
reject them merely because the precise mode of reaching it had not been
followed.
So, too, when a substantial compliance with the provisions of the statute
has been shown, the burden of proof shifts to the contestee of establishing
that, notwithstanding this compliance, the ballots have in fact been
tampered with, or that they have been exposed under such circumstances
that a violation of them might have taken place. But this proof is not made
by a naked showing that it was possible for one to have molested them.
The law cannot guard against a mere possibility, and no judgment of any of
its courts is ever rendered upon one.
The probative value of the result of the return made by the board of
inspectors is a question already settled at various times by the courts of
the United States. In the case of Oakes vs. Finlay, the following doctrine
was laid:
"The returns of an election board, when legally and properly authenticated,
are not only conclusive upon the board of canvassing officers, but are also
prima facie evidence of the number of votes cast, in a proceeding to
contest the election; and the burden of proof is upon the person who
assails the correctness of these returns."
In the case of Stafford vs. Sheppard, the court said:
"Certificates of the result of an election, made by the commissioners at the
precincts, are prima facie evidence of the result of the election. The ballots,
if identified as the same cast, are primary and higher evidence; but, in
order to continue the ballots as controlling evidence, it must appear that

they have been preserved in the manner and by the officers prescribed by
the statute, and that, while in such custody, they have not been changed
or tampered with." (internal citations omitted)25
We summarize the foregoing doctrines: (1) the ballots cannot be used to
overturn the official count as reflected in the election returns unless it is
first shown affirmatively that the ballots have been preserved with a care
which precludes the opportunity of tampering and all suspicion of change,
abstraction or substitution; (2) the burden of proving that the integrity of
the ballots has been preserved in such a manner is on the protestant; (3)
where a mode of preserving the ballots is enjoined by law, proof must be
made of such substantial compliance with the requirements of that mode
as would provide assurance that the ballots have been kept inviolate
notwithstanding slight deviations from the precise mode of achieving that
end; (4) it is only when the protestant has shown substantial compliance
with the provisions of law on the preservation of ballots that the burden of
proving actual tampering or the likelihood thereof shifts to the protestee
and (5) only if it appears to the satisfaction of the court or Comelec that
the integrity of the ballots has been preserved should it adopt the result as
shown by the recount and not as reflected in the election returns.
Our election laws are not lacking in provisions for the safekeeping and
preservation of the ballots. Among these are Sections 160, 217, 219 and
220 of the Omnibus Election Code26 which provide:
SECTION 160. Ballot boxes. (a) There shall be in each polling place on
the day of the voting a ballot box one side of which shall be transparent
which shall be set in a manner visible to the voting public containing two
compartments, namely, the compartment for valid ballots which is
indicated by an interior cover painted white and the compartment for
spoiled ballots which is indicated by an interior cover painted red. The
boxes shall be uniform throughout the Philippines and shall be solidly
constructed and shall be closed with three different locks as well as three
numbered security locks and such other safety devices as the Commission
may prescribe in such a way that they can not be opened except by means
of three distinct keys and by destroying such safety devices.
(b) In case of the destruction or disappearance of any ballot box on
election day, the board of election inspectors shall immediately report it to
the city or municipal treasurer who shall furnish another box or receptacle
as equally adequate as possible. The election registrar shall report the
incident and the delivery of a new ballot box by the fastest means of
communication on the same day to the Commission and to the provincial
election supervisor.

SECTION 217. Delivery of the ballot boxes, keys and election

supplies and documents. Upon the termination of the counting of
votes, the board of election inspectors shall place in the compartment for
valid ballots, the envelopes for used ballots hereinbefore referred to, the
unused ballots, the tally board or sheet, a copy of the election returns, and
the minutes of its proceedings, and then shall lock the ballot box with three
padlocks and such safety devices as the Commission may prescribe.
Immediately after the box is locked, the three keys of the padlocks shall be
placed in three separate envelopes and shall be sealed and signed by all
the members of the board of election inspectors. The authorized
representatives of the Commission shall forthwith take delivery of said
envelopes, signing a receipt therefor, and deliver without delay one
envelope to the provincial treasurer, another to the provincial fiscal and
the other to the provincial election supervisor.
The ballot box, all supplies of the board of election inspectors and all
pertinent papers and documents shall immediately be delivered by the
board of election inspectors and the watchers to the city or municipal
treasurer who shall keep his office open all night on the day of election if
necessary for this purpose, and shall provide the necessary facilities for
said delivery at the expense of the city or municipality. The book of voters
shall be returned to the election registrar who shall keep it under his
custody. The treasurer and the election registrar, as the case may be, shall
on the day after the election require the members of the board of election
inspectors who failed to send the objects referred to herein to deliver the
same to him immediately and acknowledge receipt thereof in detail.
SECTION 219. Preservation of the ballot boxes, their keys and
disposition of their contents. (a) The provincial election supervisor,
the provincial treasurer and the provincial fiscal shall keep the envelope
containing the keys in their possession intact during the period of three
months following the election. Upon the lapse of this period, unless the
Commission has ordered otherwise, the provincial election supervisor and
the provincial fiscal shall deliver to the provincial treasurer the envelope
containing the keys under their custody.
(b) The city and municipal treasurer shall keep the ballot boxes
under their responsibility for three months and stored unopened in
a secure place, unless the Commission orders otherwise whenever
said ballot boxes are needed in any political exercise which might
be called within the said period, provided these are not involved in
any election contest or official investigation, or the Commission or
other competent authority shall demand them sooner or shall order
their preservation for a longer time in connection with any pending

contest or investigation. However, upon showing by any candidate

that the boxes will be in danger of being violated if kept in the
possession of such officials, the Commission may order them kept
by any other official whom it may designate. Upon the lapse of said
time and if there should be no order to the contrary, the
Commission may authorize the city and municipal treasurer in the
presence of its representative to open the boxes and burn their
contents, except the copy of the minutes of the voting and the
election returns deposited therein which they shall take and keep.
(c) In case of calamity or fortuitous event such as fire, flood, storm,
or other similar calamities which may actually cause damage to
the ballot boxes and/or their contents, the Commission may
authorize the opening of said ballot boxes to salvage the ballots
and other contents by placing them in other ballot boxes, taking
such other precautionary measures as may be necessary to
preserve such documents.
SECTION 220. Documents and articles omitted or erroneously
placed inside the ballot box. If after the delivery of the keys of the
ballot box to the proper authorities, the board of election inspectors shall
discover that some documents or articles required to be placed in the
ballot box were not placed therein, the board of election inspectors,
instead of opening the ballot box in order to place therein said documents
or articles, shall deliver the same to the Commission or its duly authorized
representatives. In no instance shall the ballot box be reopened to place
therein or take out therefrom any document or article except to retrieve
copies of the election returns which will be needed in any canvass and in
such excepted instances, the members of the board of election inspectors
and watchers of the candidates shall be notified of the time and place of
the opening of said ballot box: Provided, however, That if there are other
copies of the election returns outside of the ballot box which can be used in
canvass, such copies of the election returns shall be used in said canvass
and the opening of the ballot box to retrieve copies of the election returns
placed therein shall then be dispensed with.
Additional safeguards were provided for in Comelec Resolution No. 6667
(General Instructions for the Boards of Election Inspectors on the Casting
and Counting of Votes in Connection with the May 10, 2004 National and
Local Elections) which laid down the following directives:
Section 50. Disposition of ballot boxes, keys, election returns and other
documents. - Upon the termination of the counting of votes and the
announcement of the results of the election in the precinct, the BEI shall:

a. Place the following documents inside the compartment of the

ballot box for valid ballots.
1. Envelope containing used/counted official ballots;
2. Envelope containing excess/marked/spoiled/half of torn
unused official ballots;
3. Envelope containing the copy of the election returns for
the ballot box;
4. Envelope containing one copy of the Minutes of Voting
and Counting of Votes (copy for the ballot box);
5. Tally Board; and
6. Stubs of used pads of official ballots.
b. Close the inner compartments of the ballot box, lock them with
one (1) self-locking fixed-length seal and then lock the outer cover
with the (3) padlocks and one (1) self-locking fixed-length seal. The
three keys to the padlocks shall be placed in separate envelopes
which shall be sealed and signed by all members of the BEI;
c. Deliver the ballot box to the city or municipal treasurer. In case
the ballot box delivered by the BEI was not locked and/or sealed,
the treasurer shall lock and/or seal the ballot box. The treasurer
shall include such fact, including the serial number of the selflocking fixed-length seal used, in his report to the Commission;
d. Deliver to the Election Officer:
xxx xxx xxx
5. Three (3) envelopes, each containing a key to a padlock of the
ballot box which shall be delivered, under proper receipt, by the
election officer to the provincial election supervisor, the provincial
prosecutor and the provincial treasurer. In the case of cities whose
voters do not vote for provincial officials, and municipalities in the
National Capital Region, the election officer shall retain one
envelope and distribute the two other envelopes to the
city/municipal prosecutor and city/municipal treasurer, as the case
may be.

xxx xxx xxx

The ballot box, all supplies of the BEI and all pertinent papers and
documents shall immediately be delivered by the BEI, accompanied by
watchers, to the city/municipal treasurer. For this purpose, the
city/municipal treasurer shall, if necessary, keep his office open all night on
the day of the election and shall provide the necessary facilities for said
delivery at the expense of the city/municipality.
Section 52. Omission or erroneous inclusion of documents in ballot box. If after locking the ballot box, the BEI discovers that some documents or
articles required to be placed in the ballot box were not placed therein, the
BEI, instead of opening the ballot box in order to place therein said
documents or articles, shall deliver the same to the election officer. In no
instance shall the ballot box be reopened to place therein or to take out
therefrom any document or article except in proper cases and with prior
written authority of the Commission, or its duly authorized official, to
retrieve copies of the election returns which will be needed in any canvass.
In such instance, the members of the BEI and the watchers shall be
notified of the time and place of the opening of said ballot box. However, if
there are other copies of the election returns outside of the ballot box
which can be used in the canvass, such copies of the election returns shall
be used in said canvass and the opening of the ballot box to retrieve
copies of the election returns placed therein shall then be dispensed with.
In case the BEI fails to place the envelope containing the counted ballots
inside the ballot box, the election officer shall, with notice to parties,
deposit said envelopes in a separate ballot box which shall be properly
sealed, padlocked and stored in a safe place in his office. Said ballot boxes
shall remain sealed unless otherwise ordered by the Commission.
As made abundantly clear by the foregoing provisions, the mode of
preserving the ballots in this jurisdiction is for these to be stored safely in
sealed and padlocked ballot boxes which, once closed, shall remain
unopened unless otherwise ordered by the Comelec in cases allowed by
law. The integrity of the ballots and therefore their probative value, as
evidence of the voters will, are contingent on the integrity of the ballot
boxes in which they were stored. Thus, it is incumbent on the protestant to
prove, at the very least, that the safety features meant to preserve the
integrity of the ballot boxes and their contents were installed and that
these remained in place up to the time of their delivery to the Comelec for
the revision proceedings. If such substantial compliance with these safety
measures is shown as would preclude a reasonable opportunity of
tampering with the ballot boxes contents, the burden shifts to the

protestee to prove that actual tampering took place. If the protestee fails
to discharge this burden, the court or the Comelec, as the case may be,
may proceed on the assumption that the ballots have retained their
integrity and still constitute the best evidence of the election results.
However, where a ballot box is found in such a condition as would raise a
reasonable suspicion that unauthorized persons could have gained
unlawful access to its contents, no evidentiary value can be given to the
ballots in it and the official count reflected in the election return must be
upheld as the better and more reliable account of how and for whom the
electorate voted.
The procedure adopted by the Second Division was a complete inverse of
the one outlined above and was contrary to reason. There was complete
arbitrariness on its part.
First, there was no indication at all that it ever considered the condition of
the ballot boxes at the time they were delivered to the Comelec for
revision. We find this rather puzzling, considering that it had been apprised
of such information even before revision and even its own Rules of
Procedure on election protests requires the revision committee to "make a
statement of the condition in which the ballot boxes and their contents
were found upon the opening of the same"27 in recognition of the vital
significance of such facts.
Second, it placed the burden of proving actual tampering of the ballots on
petitioner herein (the protestee below) notwithstanding private
respondents previous manifestation that most of the ballot boxes bore
"overt signs of tampering"28 and only 79 ballot boxes were found intact.
Third, instead of diligently examining whether the ballot boxes were
preserved with such care as to preclude any reasonable opportunity for
tampering with their contents, the Second Division made the probative
value of the revised ballots dependent solely on whether spurious ballots
were found among them. It failed to recognize that, in view of reports that
the ballot boxes had been tampered with and allegations that their
contents had been switched with genuine but invalid ballots, the question
of whether the revised ballots could be relied on as the same ones cast and
counted during the elections could not obviously be settled by an
examination of the ballots themselves. Clearly, the time when these were
deposited in the ballot boxes a detail of utmost importance could not
possibly have been determined by that means.
These errors on the part of the Second Division were infinitely far from
harmless; the proper legal procedure could have made a substantial

difference in the result of the election protest and most certainly could
have led to a better approximation of the true will of the electorate. This, in
the final analysis, is what election protests are all about.
Under the circumstances, the question as to who between the parties was
duly elected to the office of mayor cannot be settled without further
proceedings in the Comelec. In keeping with the precepts laid down in this
decision, the Comelec must first ascertain, after due hearing, whether it
has before it the same ballots cast and counted in the elections. For this
purpose, it must determine: (1) which ballot boxes sufficiently retained
their integrity as to justify the conclusion that the ballots contained therein
could be relied on as better evidence than the election returns and (2)
which ballot boxes were in such a condition as would afford a reasonable
opportunity for unauthorized persons to gain unlawful access to their
contents. In the latter case, the ballots must be held to have lost all
probative value and cannot be used to set aside the official count reflected
in the election returns.
WHEREFORE, the petitions are GRANTED. The April 25 and May 12, 2005
orders and the January 23, 2006 resolution of the Commission on Elections
Second Division and the May 29, 2006 resolution of the Commission on
Elections en banc in EPC No. 2004-61 are hereby declared null and void.
The Commission on Elections is hereby DIRECTED to determine, with
utmost dispatch and all due regard for the parties right to be heard, the
true result of the 2004 elections for mayor of Legaspi City. To this end, it
shall:
(1) identify the precincts the ballot boxes of which were found
intact with complete and undamaged seals and padlocks or were
otherwise preserved with such substantial compliance with
statutory safety measures as to preclude a reasonable opportunity
for tampering with their contents. The ballots from these precincts
shall be deemed to have retained their integrity in the absence of
evidence to the contrary and the Commission on Elections may
consider them in the recount.
(2) ascertain the precincts the ballot boxes of which were found in
such a condition as would afford a reasonable opportunity for
unlawful access to their contents. The Commission on Elections
shall exclude from the recount the ballots from these precincts and
shall rely instead on the official count stated in the election returns.
The status quo ante order issued by this Court on June 7, 2006 is, for all
intents and purposes consistent with this decision, hereby MAINTAINED.

SO ORDERED.

G.R. No. 87193 June 23, 1989

JUAN
GALLANOSA
FRIVALDO, petitioner,
vs.
COMMISSION ON ELECTIONS AND THE LEAGUE OF MUNICIPALITIES,
SORSOGON CHAPTER, HEREIN REPRESENTED BY ITS PRESIDENT,
SALVADOR NEE ESTUYE, respondents.
J.L. Misa & Associates for petitioner.
Lladoc, Huab & Associates for private respondent.

CRUZ, J.:
Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of
Sorsogon on January 22, 1988, and assumed office in due time. On October
27, 1988, the League of Municipalities, Sorsogon Chapter (hereafter,
League), represented by its President, Salvador Estuye, who was also suing
in his personal capacity, filed with the Commission on Elections a petition
for the annulment of Frivaldo; election and proclamation on the ground
that he was not a Filipino citizen, having been naturalized in the United
States on January 20, 1983. In his answer dated May 22, 1988, Frivaldo
admitted that he was naturalized in the United States as alleged but
pleaded the special and affirmative defenses that he had sought American
citizenship only to protect himself against President Marcos. His
naturalization, he said, was "merely forced upon himself as a means of
survival against the unrelenting persecution by the Martial Law Dictator's
agents abroad." He added that he had returned to the Philippines after the
EDSA revolution to help in the restoration of democracy. He also argued
that the challenge to his title should be dismissed, being in reality a quo
warranto petition that should have been filed within ten days from his
proclamation, in accordance with Section 253 of the Omnibus Election
Code. The League, moreover, was not a proper party because it was not a
voter and so could not sue under the said section.
Frivaldo moved for a preliminary hearing on his affirmative defenses but
the respondent Commission on Elections decided instead by its Order of
January 20, 1988, to set the case for hearing on the merits. His motion for
reconsideration was denied in another Order dated February 21, 1988. He
then came to this Court in a petition for certiorari and prohibition to ask
that the said orders be set aside on the ground that they had been

rendered with grave abuse of discretion. Pending resolution of the petition,

we issued a temporary order against the hearing on the merits scheduled
by the COMELEC and at the same time required comments from the
respondents.
In their Comment, the private respondents reiterated their assertion that
Frivaldo was a naturalized American citizen and had not reacquired
Philippine citizenship on the day of the election on January 18, 1988. He
was therefore not qualified to run for and be elected governor. They also
argued that their petition in the Commission on Elections was not really
for quo warranto under Section 253 of the Omnibus Election Code. The
ultimate purpose was to prevent Frivaldo from continuing as governor, his
candidacy and election being null and void ab initio because of his
alienage. Even if their petition were to be considered as one for quo
warranto, it could not have been filed within ten days from Frivaldo's
proclamation because it was only in September 1988 that they received
proof of his naturalization. And assuming that the League itself was not a
proper party, Estuye himself, who was suing not only for the League but
also in his personal capacity, could nevertheless institute the suit by
himself alone.
Speaking for the public respondent, the Solicitor General supported the
contention that Frivaldo was not a citizen of the Philippines and had not
repatriated himself after his naturalization as an American citizen. As an
alien, he was disqualified from public office in the Philippines. His election
did not cure this defect because the electorate of Sorsogon could not
amend the Constitution, the Local Government Code, and the Omnibus
Election Code. He also joined in the private respondent's argument that
Section 253 of the Omnibus Election Code was not applicable because
what the League and Estuye were seeking was not only the annulment of
the proclamation and election of Frivaldo. He agreed that they were also
asking for the termination of Frivaldo's incumbency as governor of
Sorsogon on the ground that he was not a Filipino.
In his Reply, Frivaldo insisted that he was a citizen of the Philippines
because his naturalization as an American citizen was not "impressed with
voluntariness." In support he cited the Nottebohm Case, [(1955 I.C.J. 4; 49
A.J.I.L. 396 (1955)] where a German national's naturalization in
Liechtenstein was not recognized because it had been obtained for reasons
of convenience only. He said he could not have repatriated himself before
the 1988 elections because the Special Committee on Naturalization
created for the purpose by LOI No. 27C had not yet been organized then.
His oath in his certificate of candidacy that he was a natural-born citizen
should be a sufficient act of repatriation. Additionally, his active

participation in the 1987 congressional elections had divested him of

American citizenship under the laws of the United States, thus restoring his
Philippine citizenship. He ended by reiterating his prayer for the rejection
of the move to disqualify him for being time-barred under Section 253 of
the Omnibus Election Code.

however, that he was naturalized as a citizen of the United States in 1983

per the following certification from the United States District Court,
Northern District of California, as duly authenticated by Vice Consul Amado
P. Cortez of the Philippine Consulate General in San Francisco, California,
U.S.A.

Considering the importance and urgency of the question herein raised, the
Court has decided to resolve it directly instead of allowing the normal
circuitous route that will after all eventually end with this Court, albeit only
after a, long delay. We cannot permit this delay. Such delay will be inimical
to the public interest and the vital principles of public office to be here
applied.

OFFICE
OF
THE
UNITED
STATES
DISTRICT
NORTHERN DISTRICT OF CALIFORNIA

It is true that the Commission on Elections has the primary jurisdiction over
this question as the sole judge of all contests relating to the election,
returns and qualifications of the members of the Congress and elective
provincial and city officials. However, the decision on Frivaldo's citizenship
has already been made by the COMELEC through its counsel, the Solicitor
General, who categorically claims that Frivaldo is a foreigner. We assume
this stance was taken by him after consultation with the public respondent
and with its approval. It therefore represents the decision of the COMELEC
itself that we may now review. Exercising our discretion to interpret the
Rules of Court and the Constitution, we shall consider the present petition
as having been filed in accordance with Article IX-A Section 7, of the
Constitution, to challenge the aforementioned Orders of the COMELEC.
The basic question we must resolve is whether or not Juan G. Frivaldo was
a citizen of the Philippines at the time of his election on January 18, 1988,
as provincial governor of Sorsogon. All the other issues raised in this
petition are merely secondary to this basic question.

September 23, 1988

TO WHOM IT MAY CONCERN:
Our records show that JUAN GALLANOSA FRIVALDO, born
on October 20, 1915, was naturalized in this Court on
January 20, 1983, and issued Certificate of Naturalization
No. 11690178.
Petition No. 280225.
Alien Registration No. A23 079 270.
Very truly yours,

WILLIAM L. WHITTAKER
Clerk

The reason for this inquiry is the provision in Article XI, Section 9, of the
Constitution that all public officials and employees owe the State and the
Constitution "allegiance at all times" and the specific requirement in
Section 42 of the Local Government Code that a candidate for local
elective office must be inter alia a citizen of the Philippines and a qualified
voter of the constituency where he is running. Section 117 of the Omnibus
Election Code provides that a qualified voter must be, among other
qualifications, a citizen of the Philippines, this being an indispensable
requirement for suffrage under Article V, Section 1, of the Constitution.
In the certificate of candidacy he filed on November 19, 1987, Frivaldo
described himself as a "natural-born" citizen of the Philippines, omitting
mention of any subsequent loss of such status. The evidence shows,

CLERK
COURT

by:
(Sgd.)

ARACELI V. BAREN
Deputy Clerk

This evidence is not denied by the petitioner. In fact, he

expressly admitted it in his answer. Nevertheless, as earlier
noted, he claims it was "forced" on him as a measure of
protection from the persecution of the Marcos government
through his agents in the United States.
The Court sees no reason not to believe that the petitioner
was one of the enemies of the Marcos dictatorship. Even
so, it cannot agree that as a consequence thereof he was
coerced into embracing American citizenship. His feeble
suggestion that his naturalization was not the result of his
own free and voluntary choice is totally unacceptable and
must be rejected outright.
There were many other Filipinos in the United States
similarly situated as Frivaldo, and some of them subject to
greater risk than he, who did not find it necessary nor do
they claim to have been coerced to abandon their
cherished status as Filipinos. They did not take the oath of
allegiance to the United States, unlike the petitioner who
solemnly declared "on oath, that I absolutely and entirely
renounce and abjure all allegiance and fidelity to any
foreign prince, potentate, state or sovereignty of whom or
which I have heretofore been a subject or citizen," meaning
in his case the Republic of the Philippines. The martyred
Ninoy Aquino heads the impressive list of those Filipinos in
exile who, unlike the petitioner, held fast to their Philippine
citizenship despite the perils of their resistance to the
Marcos regime.
The Nottebohm case cited by the petitioner invoked the
international law principle of effective nationality which is
clearly not applicable to the case at bar. This principle is
expressed in Article 5 of the Hague Convention of 1930 on
the Conflict of Nationality Laws as follows:
Art. 5. Within a third State a person having
more than one nationality shall be treated
as if he had only one. Without prejudice to
the application of its law in matters of
personal status and of any convention in
force, a third State shall, of the
nationalities which any such person
possesses, recognize exclusively in its

territory either the nationality of the

country in which he is habitually and
principally resident or the nationality of the
country with which in the circumstances he
appears to be in fact most closely
connected.
Nottebohm was a German by birth but a resident of
Guatemala for 34 years when he applied for and acquired
naturalization in Liechtenstein one month before the
outbreak of World War II. Many members of his family and
his business interests were in Germany. In 1943,
Guatemala, which had declared war on Germany, arrested
Nottebohm and confiscated all his properties on the ground
that he was a German national. Liechtenstein thereupon
filed suit on his behalf, as its citizen, against Guatemala.
The International Court of Justice held Nottebohm to be still
a national of Germany, with which he was more closely
connected than with Liechtenstein.
That case is not relevant to the petition before us because
it dealt with a conflict between the nationality laws of two
states as decided by a third state. No third state is involved
in the case at bar; in fact, even the United States is not
actively claiming Frivaldo as its national. The sole question
presented to us is whether or not Frivaldo is a citizen of the
Philippines under our own laws, regardless of other
nationality laws. We can decide this question alone as
sovereign of our own territory, conformably to Section 1 of
the said Convention providing that "it is for each State to
determine under its law who are its nationals."
It is also worth noting that Nottebohm was invoking his
naturalization in Liechtenstein whereas in the present case
Frivaldo is rejecting his naturalization in the United States.
If he really wanted to disavow his American citizenship and
reacquire Philippine citizenship, the petitioner should have
done so in accordance with the laws of our country. Under
CA No. 63 as amended by CA No. 473 and PD No. 725,
Philippine citizenship may be reacquired by direct act of
Congress, by naturalization, or by repatriation.

While Frivaldo does not invoke either of the first two

methods, he nevertheless claims he has reacquired
Philippine citizenship by virtue of a valid repatriation. He
claims that by actively participating in the elections in this
country, he automatically forfeited American citizenship
under the laws of the United States. Such laws do not
concern us here. The alleged forfeiture is between him and
the United States as his adopted country. It should be
obvious that even if he did lose his naturalized American
citizenship, such forfeiture did not and could not have the
effect of automatically restoring his citizenship in the
Philippines that he had earlier renounced. At best, what
might have happened as a result of the loss of his
naturalized citizenship was that he became a stateless
individual.
Frivaldo's contention that he could not have repatriated
himself under LOI 270 because the Special Committee
provided for therein had not yet been constituted seems to
suggest that the lack of that body rendered his repatriation
unnecessary. That is far-fetched if not specious Such a
conclusion would open the floodgates, as it were. It would
allow all Filipinos who have renounced this country to claim
back their abandoned citizenship without formally rejecting
their adoptedstate and reaffirming their allegiance to the
Philippines.
It does not appear that Frivaldo has taken these categorical
acts. He contends that by simply filing his certificate of
candidacy he had, without more, already effectively
recovered Philippine citizenship. But that is hardly the
formal declaration the law envisions surely, Philippine
citizenship previously disowned is not that cheaply
recovered. If the Special Committee had not yet been
convened, what that meant simply was that the petitioner
had to wait until this was done, or seek naturalization by
legislative or judicial proceedings.
The argument that the petition filed with the Commission
on Elections should be dismissed for tardiness is not welltaken. The herein private respondents are seeking to
prevent Frivaldo from continuing to discharge his office of
governor because he is disqualified from doing so as a
foreigner. Qualifications for public office are continuing

requirements and must be possessed not only at the time

of appointment or election or assumption of office but
during the officer's entire tenure. Once any of the required
qualifications is lost, his title may be seasonably
challenged. If, say, a female legislator were to marry a
foreigner during her term and by her act or omission
acquires his nationality, would she have a right to remain
in office simply because the challenge to her title may no
longer be made within ten days from her proclamation? It
has been established, and not even denied, that the
evidence of Frivaldo's naturalization was discovered only
eight months after his proclamation and his title was
challenged shortly thereafter.
This Court will not permit the anomaly of a person sitting
as provincial governor in this country while owing exclusive
allegiance to another country. The fact that he was elected
by the people of Sorsogon does not excuse this patent
violation of the salutary rule limiting public office and
employment only to the citizens of this country. The
qualifications prescribed for elective office cannot be
erased by the electorate alone. The will of the people as
expressed through the ballot cannot cure the vice of
ineligibility, especially if they mistakenly believed, as in
this case, that the candidate was qualified. Obviously, this
rule requires strict application when the deficiency is lack
of citizenship. If a person seeks to serve in the Republic of
the Philippines, he must owe his total loyalty to this
country only, abjuring and renouncing all fealty and fidelity
to any other state.
It is true as the petitioner points out that the status of the
natural-born citizen is favored by the Constitution and our
laws, which is all the more reason why it should be
treasured like a pearl of great price. But once it is
surrendered and renounced, the gift is gone and cannot be
lightly restored. This country of ours, for all its difficulties
and limitations, is like a jealous and possessive mother.
Once rejected, it is not quick to welcome back with eager
arms its prodigal if repentant children. The returning
renegade must show, by an express and unequivocal act,
the renewal of his loyalty and love.

WHEREFORE, the petition is DISMISSED and petitioner JUAN

G. FRIVALDO is hereby declared not a citizen of the
Philippines and therefore DISQUALIFIED from serving as
Governor of the Province of Sorsogon. Accordingly, he is
ordered to vacate his office and surrender the same to the
duly elected Vice-Governor of the said province once this
decision becomes final and executory. The temporary
restraining order dated March 9, 1989, is LIFTED.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano,
Gancayco, Padilla, Bidin, Grio-Aquino, Medialdea and
Regalado, JJ., concur.
Sarmiento, J., took no part.
Cortes J., concurs in the result.

G.R. No. 93986 December 22, 1992

BENJAMIN
T.
LOONG, petitioner,
vs.
COMMISSION ON ELECTIONS, NURSHUSSEIN UTUTALUM and ALIM
BASHIR EDRIS, respondents.

PADILLA, J.:
In this special civil action of certiorari, petitioner assails the Resolution
dated 15 May 1990 of the Commission on Elections (Second Division),
issued SPA No. 90-006 entitled "Nur Hussein Ututalum, petitioner vs.
Benjamin Loong, respondent," a petition to disqualify Benjamin Loong,
candidate for Regional Vice-Governor of the Autonomous Government in
Muslim Mindanao. Said assailed resolution ruled that the respondent
Commission has jurisdiction to hear and decide SPA No. 90-006.
On 15 January 1990, petitioner filed with the respondent Commission his
certificate of candidacy for the position of Vice-Governor of the Mindanao
Autonomous Region in the election held on 17 February 1990 (15 January
1990 being the last day for filing said certificate); herein two (2) private
respondents (Ututalum and Edris) were also candidates for the same
position.
On 5 March 1990 (or 16 days after the election), respondent Ututalum filed
before the respondent Commission (Second Division) a petition (docketed
as SPA Case No. 90-006) seeking to disqualify petitioner for the office of
Regional Vice-Governor, on the ground that the latter made a false
representation in his certificate of candidacy as to his age.
On 7 March 1990, the other candidate, respondent Edris, filed a "Petition in
Intervention" in the said SPA No. 90-006, raising therein issues similar to
those raised by respondent Ututalum in his main petition.
On 19 March 1990, 1 petitioner Loong filed in SPA No. 90-006 his answer to
the petition, seeking the dismissal of the petition, and alleging the
following:
1. that it has not been the practice among the Muslim
people in the community where respondent was born to
record the birth of a child with the Office of the Civil

Registry; that following such practice, respondent's parents

did not also record his birth with the said office; that, to be
sure of his age qualification, respondent, before filing his
certificate of candidacy consulted his mother and other
persons who have personal knowledge of his date of birth
and all assured respondent that his correct date of birth is
July 4, 1954.
2. that respondent COMELEC has no jurisdiction because
such petition is actually one which is to deny due course to
or cancel a certificate of candidacy which, under Section 78
of the Omnibus Election Code (BP 881), as amended by
Election Reforms Law of 1987, should have been filed
within 5 days following the last day for filing of the
certificate of candidacy.
On 30 March 1990, petitioner Loong also filed his "Answer to Petition for
Intervention." 2
On 15 May 1990, the respondent Commission (Second Division) rendered
the now assailed Resolution 3 (with two (2) Commissioners Yorac and
Flores concurring, and one Commissioner Dimaampao dissenting),
holding that:
WHEREFORE, on the basis of the foregoing, the
Commission on Elections (Second Division) holds that it has
jurisdiction to try the instant petition and the respondent's
motion to dismiss on the ground of lack of jurisdiction is
hereby denied.
In its questioned resolution, respondent Commission held that, in
consonance with the ruling of this Court inFrivaldo vs. COMELEC 4 to wit
The qualifications prescribed for elective office cannot be
erased by the electorate alone. The will of the people as
expressed through the ballot cannot cure the vice of
ineligibility, especially if they mistaken believed, as in this
case, that the candidate was qualified.
Section 6 and 7 of Rep. Act No. 6646
ruling) should now mean that:

(in relation to the said Frivaldo

1. When there is an allegation of falsification of an entry in

a candidate's certificate of candidacy, and such alleged
falsification refers to a fact concerning the candidate's
eligibility to run for and hold an elective public office, a
petition to declare such candidate ineligible is seasonable if
it is brought within a reasonable time of the discovery of
ineligibility.

The undisputed facts are as follows: petitioner Loong filed his certificate of
candidacy on 15 January 1990 (The last day for filing the same), the
election for officials of the Muslim Mindanao Autonomous Region being
on 17 February 1990; but private respondent Ututalum filed the petition
(SPA 90-006) to disqualify candidate Loong only on 5 March 1990, or fortynine (49) days from the date Loong's certificate of candidacy was filed (i.e.
15 January 1990), and sixteen (16) days after the election itself.

2. Such petition for a declaration of ineligibility is

seasonable even if filed after the period prescribed by law
for attacking certificate of candidacy and before the
proclamation of the candidate sought to be disqualified.
The substantive issue of qualification cannot be
subordinated to or defeated by the gap in procedural rules.
..." 6

Petitioner Loong contends that SPA No. 90-006 was filed out of time
because it was filed beyond the 25-day period prescribed by Section 78 of
the Omnibus Election Code. On the other hand, private respondent
Ututalum alleges that SPA No. 90-006, though filed only on 5 March 1990,
was filed when no proclamation of winner had as yet been made and that
the petition is deemed filed on time as Section 3, Rule 25 of the Comelec
Rules of Procedure states that the petition to disqualify a candidate on
grounds of ineligibility "shall be filed any day after the last day for filing of
certificates of candidacy but not later than the date of proclamation."

Denying petitioner's motion for reconsideration of the above-cited

resolution, the respondent Commission issued Resolution dated 3 July
1990, 7 stating among others that
While the Frivaldo case referred to the questioned of
respondent's citizenship, we hold that the principle applies
to discovery of violation of requirements for eligibility, such
as for instance the fact that a candidate is a holder of a
green card or other certificates of permanent residence in
another country, or, as in this case, that the candidate
does not possess the age qualification for the office.
On 3 July 1990, petitioner was proclaimed as the duly elected ViceGovernor of the Mindanao Autonomous Region. 8 Hence, this special civil
action of certiorari filed by petitioner on 9 July 1990 to annul the aforesaid
resolutions of respondent Commission dated 15 May 1990 and 3 July 1990,
issued in SPA No. 90-006.
The principal issue in the case at bar, as we see it, is whether or not SPA
No. 90-006 (a petition to cancel the certificate of candidacy of petitioner
Loong) was filed within the period prescribed by law.

On the part of respondent Commission, it held in its assailed resolution that

the petition in SPA No. 90-006 was timely filed, applying Sections 6 and 7
of Republic Act No. 6646, 9 and Section 2, Rule 23 of the Comelec Rules of
Procedure which states that the petition to deny due course to or cancel a
certificate of candidacy must be filed within five (5) days following the last
day for the filing of a certificate of candidacy, both read in the light of
the Frivaldo ruling of this Court.
We find the present petition to be meritorious.
Sections 3 and 4 of Rep. Act No. 6734 (entitled, "An Act Providing for an
Organic Act for the Autonomous Region in Muslim Mindanao") requires that
the age of a person running for the office of Vice Governor for the
autonomous region shall be at least thirty-five (35) years on the day of the
election. Private respondent Ututalum alleges that petitioner Loong falls
short of this age requirements, hence, on 5 march 1990, he filed a petition
to disqualify the petitioner.
Section 74 of the Omnibus Election Code ("Code" for brevity) provides that
the certificate of candidacy of the person filing it shall state, among others,
the date of birth of said person. Section 78 of the same Code states that is
case a person filing a certificate of candidacy has committed false
representation, a petition to cancel the certificate of the aforesaid person
may be filed within twenty-five (25) days from the time the certificate was
filed.

Clearly, SPA No. 90-006 was filed beyond the 25-day period prescribed by
Section 78 of the Omnibus Election Code.
We do not agree with private respondent Ututalum's contention that the
petition for disqualification, as in the case at bar, may be filed at any time
after the last day for filing a certificate of candidacy but not later than the
date of proclamation, applying Section 3, Rule 25 of the Comelec Rules of
Procedures.
Rule 25 of the Comelec Rules of Procedure refers to Disqualification of
Candidates; and Section 1 of said rule provides that any candidate who
commits any act declared by law to be a ground for disqualification may be
disqualified from continuing as a candidate. The grounds for
disqualification as expressed in Sections 12 and 68 of the Code are the
following:
SEC. 12. Disqualification. Any person who has been
declared by competent authority insane or incompetent, or
has been sentenced by final judgment for subversion,
insurrection, rebellion or for any offense for which he was
sentenced to a penalty of more than eighteen months or
for a crime involving moral turpitude, shall be disqualified
to be a candidate and to hold any office, unless he has
been given plenary pardon or granted amnesty.
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 official performing electoral functions; (b) committed
acts of terrorism to enhance his candidacy; (c) spent in his
election compaign an amount in excess of that allowed by
contribution prohibited under Sections 89, 95, 96, 97 and
104; or (e) violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be
disqualified from continuing as a candidate, or if he has
been elected, from holding the office. Any person who is a
permanent resident of or an immigrant to foreign country
shall not be qualified to run for any elective office under
this Code, unless said or immigrant of a foreign country in
accordance with the residence requirement provided for in
the election law.

The petition filed by private respondent Ututalum with the respondent

Comelec to disqualify petitioner Loong on the ground that the latter made
a false representation in his certificate of candidacy as to his age, clearly
does not fall under the grounds of disqualification as provided for in Rule
25 but is expressly covered by Rule 23 of the Comelec Rules of Procedure
governing petitions to cancel certificate of candidacy. Moreover, Section 3,
Rule 25 which allows the filing of the petition at nay time after the last day
for the filing of certificates of candidacy but not later than the date of
proclamation, is merely a procedural rule issued by respondent
Commission which, although a constitutional body, has no legislative
powers. Thus, it can not supersede Section 78 of the Omnibus Election
Code which is a legislative enactment.
We also do not find merit in the contention of respondent Commission that
in the light of the provisions of Section 6 and 7 of Rep. Act No. 6646, a
petition to deny due course to or cancel a certificate of candidacy may be
filed even beyond the 25 -day period prescribed by Section 78 of the Code,
as long as it is filed within a reasonable time from the discovery of the
ineligibility.
Section 6 and 7 of Rep. Act No. 6646 are here re-quoted:
SEC. 6. Effect of Disqualification Case. ny 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
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 of Commission
shall continue with the trial and hearing of the action,
inquiry, or protest and, upon motion of the complainant or
any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong.
SEC. 7. Petition to Deny Due Course To or Cancel a
Certificate of Candidacy. The procedure hereinabove
provided shall apply to petitions to deny due course to or
cancel a certificate of candidacy as provided in Section 78
of Batas Pambansa Blg. 881."
It will be noted that nothing in Sections 6 or 7 modified or alters the 25-day
period prescribed by Section 78 of the Code for filing the appropriate
action to cancel a certificate of candidacy on account of any false

representation made therein. On the contrary, said Section 7 affirms and

reiterates Section 78 of the Code.
We note that Section 6 refers only to the effects of a disqualification case
which may be based on grounds other than that provided under Section 78
of the Code. But Section 7 of Rep. Act No. 6646 also makes the effects
referred to in Section 6 applicable to disqualification cases filed under
Section 78 of the Code. Nowhere in Section 6 and 7 Rep. Act. No 6646 is
mentioned made of the period within which these disqualification cases
may be filed. This is because there are provisions in the Code which supply
the periods within which a petition relating to disqualification of candidates
must be filed, such as Section 78, already discussed, and Section 253 on
petitions for quo warranto.
Thus, if a person qualified to file a petition to disqualification a certain
candidate fails to file the petition within the 25-day period prescribed by
Section 78 of the Code for whatever reasons, the election laws do not
leave him completely helpless as he has another chance to raise the
disqualification of the candidate by filing a petition forquo warranto within
ten (10) days from the proclamation of the results of the election, as
provided under Section 253 of the Code. Section 1 Rule 21 of the Comelec
Rules of procedure similarly provides that any voter contesting the election
of any regional, provincial or city official on the ground of ineligibility or of
disloyalty to the Republic of the Philippines may file a petition for quo
warranto with the Electoral Contest Adjudication Department. The petition
may be filed within ten (10)days from the date the respondent is
proclaimed (Section 2).
It is true that the discovery of false representation as to material facts
required to be stated in a certificate of candidacy, under Section 74 of the
Code, may be made only after the lapse of the 25-day period prescribed by
Section 78 of the Code, through no fault of the person who discovers such
misrepresentations and who would want the disqualification of the
candidate committing the misrepresentations. It would seem, therefore,
that there could indeed be a gap between the time of the discovery of the
misrepresentation, (when the discovery is made after the 25-day period
under Sec. 78 of the Code has lapsed) and the time when the proclamation
of the results of the election is made. During this so-called "gap" the
would-be petitioner (who would seek the disqualification of the candidate)
is left with nothing to do except to wait for the proclamation of the results,
so that he could avail of a remedy against the misrepresenting candidate,
that is, by filing a petition for quo warranto against him. Respondent
Commission sees this "gap" in what it calls a procedural gap which,
according to it, it unnecessary and should be remedied.

At the same time, it can not be denied that it is the purpose and intent of
the legislative branch of the government to fix a definite time within which
petitions of protests related to eligibility of candidates for elective offices
must be filed, 10 as seen in Section 78 and 253 of the Code. Respondent
Commission may have seen the need to remedy this so-called "procedural
gap", but it is not for it to prescribed what the law does not provide, its
function not being legislative. The question of whether the time to file
these petitions or protests is too short or ineffective is one for the
Legislature to decide and remedy.
We are aware that in Frivaldo vs. Comelec, 11 this Court held that a petition
to disqualify an elective official, on the ground that he is not a Filipino
citizen, may be file at anytime, even beyond the period prescribed by law,
and office and in fact had long been discharging the duties of said office.
But we disagree with respondent Commission that the Frivaldoruling
applied to the case at bar in all its connotations and implications. For one,
the ground for which disqualification is sought in the present case is
misrepresentation as to the required age of the candidate, whereas,
in Frivaldo the ground for disqualification was lack of Philippine
citizenship. This is an overriding and fundamental desideratum matched
perhaps only by disloyalty to the Republic of the Philippines.
Mr. Justice Gutierrez, Jr., in his concurring opinion in Frivaldo vs.
Comelec 12 said:
It is an established rule of long standing that the period
fixed by law for the filing of a protest whether quo
warranto or election contest is mandatory and
jurisdictional.
As a rule, the quo warranto petition seeking to annul the
petitioner's election and proclamation should have been
filed within ten days after the proclamation of election
results. The purpose of the law in not allowing the filing of
protests beyond the period fixed by law is to have a certain
and definite time within which petitions against the results
of an election should be filed and to provide summary
proceedings for the settlement of such disputes.
xxx xxx xxx
I must emphasize, however, that my concurrence is limited
to a clear case of an alien holding an elective public office.

And perhaps in a clear case of disloyalty to the Republic of

the Philippines. Where the disqualification is based on age,
residence, or any of the many grounds for ineligibility, I
believe that the ten-day period should be applied strictly.
In Aznar vs. Comelec, 13 the records show that private respondent filed his
certificate of candidacy on 19 November 1987and that the petitioner filed
his petition for disqualification of said private respondent on 22 January
1988. Since the petition for disqualification was filed beyond the twenty
five-day period required in Section 78 of the Code, it was clear that the
said petition had been filed out of time. The Court also ruled that the
petition for the disqualification of private respondent could not also be
treated as a petition for quo warranto under Section 253 of the same Code
as it was unquestionably premature, considering that private respondent
was proclaimed Provincial Governor of Cebu only on 3 March 1988.
However, as a matter of public interest to ascertain the
respondent's citizenship and qualification to hold the public office to which
he had been proclaimed elected, the Court ruled on the merits of the case.
But the Court, in another case, in an EN BANC Resolution 14 affirmed the
dismissal by the COMELEC of the petitions for disqualification. It appeared
that on 2 March 1990, a petition to disqualify Padilla Pundaodaya (SPA No.
90-004) was filed because of an allegedly falsified certificate of candidacy
which he could not have personally filed on 15 January 1990 since he had
been in Saudi Arabia since 24 July 1987 and arrived in Manila only on 24
January 1990. The Court held that the disqualification petition was
correctly treated by the Commission on Elections as a petition to cancel a
defective certificate of candidacy but the petition was filed out of time and
could not anymore be entertained.
In sum, SPA No. 90-006 was filed by private respondent Ututalum beyond
the 25-day period (from the filing by petitioner Loong of the questioned
certificate of candidacy) prescribed by Section 78 of the Code. It follows
that the dismissal of said petition for disqualification is warranted. Further
it would appear that we can not treat SPA NO. 90-006 as a petition for quo
warranto (Section 253 of the Code) for when it was filed with the
respondent Commission, no proclamation of election results had as yet
been made, it was premature.
WHEREFORE, the petition is GRANTED. The resolution of respondent
Commission, dated 15 May 1990 and 3 July 1990, rendered in SPA No. 90006 are hereby SET ASIDE.
SO ORDERED.

Narvasa, Gutierrez, Jr., Cruz, Feliciano, Bidin, Grio-Aquino, Regalado,

Davide, Jr., Romero, Nocon, Bellosillo, Melo and Campos, Jr., JJ., concur.

G.R. No. 115022 August 14, 1995

PEOPLE
OF
THE
PHILIPPINES, petitioner,
vs.
HON. WILFREDO D. REYES, Presiding Judge, RTC, Branch 36,
Manila and BUENAVENTURA C. MANIEGO,respondents.

PUNO, J.:
This is a petition for certiorari and mandamus under Rule 65 of the Revised
Rules of Court to annul and set aside the orders dated September 23, 1993
and January 25, 1994 of respondent Judge Wilfredo D. Reyes, Regional Trial
Court, Branch 36, Manila in Criminal Case No. 93-120275.
The facts reveal that respondent Buenaventura C. Maniego, Collector of
Customs, Collection District II, Bureau of Customs, Manila International
Container Port (MICP), issued MICP Customs Personnel Order No. 21-92
dated January 10, 1992 assigning Jovencio D. Ebio, Customs Operation
Chief, MICP to the Office of the Deputy Collector of Customs for Operations
as Special Assistant. 1 The actual transfer of Ebio was made on January 14,
1992.
On May 4, 1992, Ebio filed with the Commission on Elections (COMELEC) a
letter-complaint protesting his transfer. Ebio claimed that his new
assignment violated COMELEC Resolution No. 2333 and section 261 (h) of
B.P. Blg. 881, the Omnibus Election Code, which prohibit the transfer of any
employee in the civil service 120 days before the May 11, 1992
synchronized national and local elections.

advantage of his position and abuse of authority, did, then and

there, wilfully and unlawfully, transfer Jovencio D. Ebio, Chief of the
Piers and Inspection Division, Manila International Container Port,
Bureau of Customs, to Special Assistant in the office of the Deputy
Collector for Operations, of the same office, without a prior written
authority from the Commission on Elections. 2
Before the arraignment, respondent Maniego moved to quash the
information on the ground that the facts alleged do not constitute an
offense. He contended that the transfer of Ebio on January 14, 1992 did not
violate B.P. Blg. 881 because on that date the act was not yet punishable
as an election offense. It purportedly became punishable only on January
15, 1992, the date of effectivity of COMELEC Resolution No. 2333
implementing Section 261 (h) of B.P. Blg. 881. Petitioner, through the
COMELEC, opposed the motion to quash.
On September 23, 1993, the trial court granted private respondent's
motion to quash and dismissed Criminal Case No. 93-120275. 3 Petitioner
moved to reconsider but the same was denied on January 25,
1995. 4 Petitioner forthwith elevated the case to this Court on a pure
question of law.
We affirm.
The basic law supposed to have been violated by respondent Maniego is
Section 261 (h) of B.P. Blg. 881 which reads as follows:
Sec. 261. Prohibited acts. The following shall be guilty of any
election offense:
xxx xxx xxx

After a preliminary investigation, the COMELEC filed on May 6, 1995 an

information with the Regional Trial Court, Branch 36, Manila charging
respondent Maniego with a violation of Section 261 (h) of B. P. Blg. 881
committed as follows:
That on or about January 14, 1992 which was within the election
period of the May 11, 1992 synchronized elections and within the
effectivity of the ban on transfer or detail of officers and employees
in the civil service, in the City of Manila, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, a
public official, being the Collector of Customs VI, Manila
International Container Port, Bureau of Customs, by taking

(h) Transfer of officers and employees in the civil service. Any

public official who makes or causes any transfer or detail whatever
of any officer or employee in the civil service including public
school teachers,within the election period except upon prior
approval of the Commission. (Emphasis supplied)
The Constitution has fixed the election period for all elections to
commence ninety (90) days before the day of election and end thirty (30)
days thereafter, unless otherwise fixed in special cases by the
COMELEC. 5 For the May 11, 1992 synchronized national and local
elections, the COMELEC fixed a longer election period of one hundred

twenty (120) days before the scheduled elections and thirty (30) days
thereafter. It issued Resolution No. 2314 on September 23, 1991 primarily
adopting therein a calendar of activities. In the process, it designated
January 12, 1992 to June 10, 1992 as the election period, viz.:

RESOLUTION NO. 2333

WHEREAS, the Omnibus Election Code of the Philippines provides:
Sec. 261. Prohibited acts, The following shall be
guilty of an election offense:

RESOLUTION NO. 2314

Pursuant to the powers vested in it by the Constitution of the
Republic of the Philippines, the Omnibus Election Code (B.P. Blg.
881), and Republic Act No. 7166, the Commission on Elections has
RESOLVED to adopt, the following calendar of activities for the May
11, 1992 elections:

xxx xxx xxx

(h) Transfer of officers and employees in the civil
service. Any public official who makes or causes
any transfer or detail whatever of any officer or
employee in the civil service including public
school teachers, within the election period except
upon prior approval of the Commission.

Date/Period Activities
November 28, 1991 Start of the period of nomination and
selection of official candidates for President, Vice-President and
Senators (165 days, SEC. 6, R.A.7166)
January 2, 1992 Last day for appointment of members of boards
of election inspectors (Sec.164, OEC) (Subject to appointments
which may be extended later in account of lack of public school
teachers and disqualifications due to relationship to candidates.)
January 12, 1992 ELECTION PERIOD (120 (Sunday) todays, per
Res.
No.
____
)
June 10, 1992 Bans on carrying of firearms Wednesday suspension
of elective local officials, organization of strike forces, etc. (Sec.
261,
OEC) 6
xxx xxx xxx
On January 2, 1992, the COMELEC promulgated Resolution No. 2328 for the
sole and specific purpose of fixing for the said elections the election period
from January 12, 1992 to June 10, 1992. 7 This Resolution was published in
the January 5, 1992 issue of the Manila Times and the January 6, 1992
issue of the Philippine Times Journal. 8
On January 2, 1992, the COMELEC also passed Resolution No. 2333 which
promulgated the necessary rules to enforce Section 261 of B.P. Blg. 881.
We quote its pertinent portions:

xxx xxx xxx

WHEREAS, to enforce effectively the foregoing provisions, there is
need to promulgate the necessary rules for the guidance of all
concerned;
NOW, THEREFORE, pursuant to the power vested in it by the
Constitution, the Omnibus Election Code, Republic Acts No. 6646
and 7166 and other election laws, the Commission has RESOLVED
to promulgate, as it hereby promulgates, the following rules to
implement the provisions of Sec. 261, subsections (g), (h) and (x)
of the Omnibus Election Code.
xxx xxx xxx
Sec. 2. Request for authority of the Commission. Any request for
authority to make or cause any transfer or detail of any officer or
employee in the civil service, including public school teachers, shall
be submitted in writing to the Commission indicating therein the
office and place to which the officer or employee is proposed to be
transferred or detailed, and stating the reason therefor.
xxx xxx xxx
Sec. 6. Effectivity. This resolution shall take effect on the seventh
day after its publication in two (2) newspapers of general
circulation in the Philippines.

xxx xxx xxx

Resolution No. 2333 was published in the January 8, 1992 issues
of Malaya and the Manila Standard. Hence, it took effect on January 15,
1992, the seventh day after its publication.
It is undeniable that the transfer of complainant Ebio on January 14, 1992
was made during the election period. The question, however, is whether
this transfer ipso facto makes respondent Maniego liable for an election
offense under Section 261 (h) of B.P. Blg. 881.
We rule in the negative.
We start with the constitutional injunction that no officer or employee in
the civil service shall engage, directly or indirectly, in any electioneering or
partisan political campaign. 9 This prohibition is reiterated in the
Administrative Code of 1987. 10 Section 261 (h) of B.P. Blg. 881 implements
this constitutional prohibition.
It ought to be immediately obvious that Section 261 (h) of B.P. Blg. 881
does not per se outlaw the transfer of a government officer or employee
during the election period. To be sure, the transfer or detail of a public
officer or employee is a prerogative of the appointing authority. 11 It is
necessary to meet the exigencies of public service sometimes too difficult
to perceive and predict. Without this inherent prerogative, the appointing
authority may not be able to cope with emergencies to the detriment of
public service. Clearly then, the transfer or detail of government officer or
employee will not be penalized by Section 261 (h) of B.P. Blg. 881 if done
to promote efficiency in the government service. Hence, Section 2 of
Resolution No. 2333 provides that the COMELEC has to pass upon the
reason for the proposed transfer or detail, viz: "Any request for authority to
make or cause any transfer or detail of any officer or employee in the civil
service, including public school teachers, shall be submitted in writing to
the Commission indicating therein the office and place to which the officer
or employee is proposed to be transferred or detailed, and stating the
reason therefor. 12
Prescinding from this predicate, two (2) elements must be established to
prove a violation of Section 261 (h) of B.P. Blg. 881, viz: (1) The fact of
transfer or detail of a public officer or employee within the election period
as fixed by the COMELEC, and (2) the transfer or detail was effected
without prior approval of the COMELEC in accordance with its
implementing rules and regulations.

In the case at bench, respondent Maniego transferred Ebio, then the

Customs Operation Chief, MICP to the Office of the Deputy Collector of
Customs for Operations as Special Assistant on January 14, 1992. On this
date, January 14, 1992, the election period for the May 11, 1992
synchronized elections had already been fixed to commence January 12,
1992 until June 10, 1992. As aforestated, this election period had been
determined by the COMELEC in its Resolution No. 2314 dated November
20, 1991 and Resolution No. 2328 January 2, 1992. Nonetheless, it was
only in Resolution No. 2333 which took effect on January 15, 1992 that
COMELEC promulgated the necessary rules on how to get its approval on
the transfer or detail of public officers or employees during the election
period. Before the effectivity of these rules, it cannot be said that Section
261 (h) of B.P. Blg. 881, a penal provision, was already enforceable.
Needless to state, respondent Maniego could not be charged with failing to
secure the approval of the COMELEC when he transferred Ebio on January
14, 1992 as on that day, the rules of the COMELEC on the subject were yet
in existent.
IN VIEW WHEREOF, the petition is dismissed and the orders dated
September 23, 1993 and January 25, 1995 of the respondent judge in
Criminal Case No. 93-120275 are affirmed.
SO ORDERED.

G.R. No. L-36388 March 16, 1988

COMMISSION
ON
ELECTIONS, petitioner,
vs.
HONORABLE MANUEL V. ROMILLO, JR., District Judge, Court of First
Instance of Ilocos Norte (Branch II), respondent.

MELENCIO-HERRERA, J.:

conducting himself in a disorderly manner as to interrupt

the voting proceedings in said polling place on the same
date and time.
After preliminary investigation, respondent Judge issued the Order, dated
October 27,1972, dismissing Criminal Cases Nos. 119-II, 121-II and 122- II
for insufficiency of evidence, and quashing the Complaint in Criminal Case
No. 120-II, which is the questioned portion of the Order, on the ground that
the mere presence of an unauthorized person in the polling place does not
constitute an offense.

In this Petition for certiorari and Mandamus, petitioner Commission on

Elections the (COMELEC) seeks to annul the Order of Respondent Judge,
dated October 27, 1972, in so far as it dismissed the Complaint in Criminal
Case No. 120-II, and the Order, dated December 20, 1972, which denied
petitioner's Motion for Reconsideration.

COMELEC's Motion for Reconsideration was denied by respondent Judge in

his Order dated December 20, 1972, which Order is also challenged herein.

On April 24,1972, the COMELEC filed four (4) criminal Complaints against
one Eden Asuncion for election offenses committed on Election Day,
November 8,1971, at around 10:00 A.M., at Polling Precinct No. 58, Laoag
City. The four (4) cases were filed with said court for preliminary
investigation pursuant to Sections 234 and 236 of the Election Code of
1971 (Republic Act No. 6388. 1

Pursuant to Section 2, Rule 110, Revised Rules of Court, in

relation to Section 234 and 236 of the Election Code of
1971, the undersigned accuses EDEN ASUNCION of Laoag
City for violation of Section 172 of Republic Act No. 6388,
committed as follows:

The criminal cases filed were:

(1) Criminal Case No. 119-II, for violation of Section 61 of
the Election Code of 1971, by carrying a gun inside the
said polling place on the same date and time, while the
voting was in progress;
(2) Criminal Case No. 120-II, for violation of Section 172 of
the Election Code of 1971, by unlawfully entering said
polling place on the same date and time;
(3)
Criminal
Case
No.121-II,
for
violation
of
Sec.231(a),par.25 of the Election Code of 1971, by
employing unlawful means or scheme to discover or read
the contents of prepared ballots by voters of said polling
place on the same date and time;
(4)
Criminal
Case
No.122-II,
for
violation
of
Sec.231(a),par.32 of the Election Code of 1971, by

The Complaint in Criminal Case No. 120-II for Preliminary Investigation

reads:

That on November 8, 1971, Election Day, around 10:00

a.m. in Laoag City and within the jurisdiction of this
Honorable Court, while the voting was going on in Precinct
No. 58 located at Balatong Elementary School Building in
Barrio Balatong, Laoag City, the accused EDEN ASUNCION
who is not authorized to enter a polling place, did, then
and there, unlawfully enter the polling place of said
precinct.
CONTRARY TO LAW.
Section 172, paragraph 1 of the Election Code of 1971, alleged to have
been violated, provides:
SEC. 172. Persons allowed in and around the polling place.
During the voting, no person shall be allowed inside the
polling place, except the members of the board of
inspectors and their substitutes, the watchers, the
representatives of the Commission, the voters casting their
votes, the voters waiting for their turn to get inside the

booths whose number shag not exceed twice the number

of booths and the voters waiting for their turn to cast their
votes whose number shall not exceed forty at any one
time. The watchers shall stay only in the space reserved for
them it being illegal for them to enter places reserved for
the voters or for the board, or to mingle and talk with the
voters within the polling place.

were submitted by Marcelino Dajugar and

Lucille Guerrero of Barrios Balatong and No.
19, respectively, of Laoag City charging
one, Eden Asuncion, of having entered the
polling place and voting booths of Precinct
No. 58, with firearms and then watched
voters fill up ballots and read the contents
thereof What can you say about that?

xxx xxx xxx

A All I can say is that when I saw Eden
Asuncion tried (sic) to enter the voting
booth, I stopped him and sent him out and
he did so; I never saw him carrying a
firearm. With respect to the charges that
Eden Asuncion watched voters fill up their
ballots and reading the contents of the
same, I never saw him committed (sic)
those acts because when he tried to enter
the voting booths I called his attention to
go out and he went out. (Exhibit "1")

Violation of the foregoing provision is classified as a serious election

offense, thus:
Sec. 230. Election offenses and their classification.
Violation of any of the provisions, or pertinent portions of
sections ... one hundred and seventy-two ... shall be
serious election offenses; ...
the penalty prescribed therefor being:
SEC. 233. Penalties. Any one found guilty of a serious
election offense shall be punished with imprisonment of
not less than six years and one day but not more than
twelve years; ...
From the tenor of the foregoing provisions, it is clear that Section 172, in
relation to Sections 230 and 233 of the Revised Election Code of 1971, is
penal in character, contrary to the ruling of respondent Judge.
Sections 172, 230 and 233 of the said 1971 Election Code have been
reproduced in Sections 137, 179 and 181 of the 1978 Election Code, and in
Sections 192, 262 and 264 of the Omnibus Election Code.
But while respondent Judge may have erred in his rationalization, the
quashal of the complaint in Criminal Case No. 120-II will have to be upheld.
The same reason given by respondent Judge for the dismissal of Criminal
Cases Nos. 119-II, 121-II and 122-II, that is, for insufficiency of evidence,
applies. Quoted in the dismissal Order is the following testimony of the
Chairman of the Board of Election Inspectors of Precinct No. 58, Laoag City,
showing the absence of a prima facie case against the accused.
Q As per telegram of the Comelec,
Manila, dated February 10, 1972, affidavits

Under those circumstances, by no means can it be concluded that Eden

Asuncion had violated Section 172 of the Election Code. The secrecy and
sanctity of the ballot sought to be protected by the said provision has not
been violated.
WHEREFORE, the Petition for certiorari and mandamus is denied. No costs.
SO ORDERED.

G.R. No. 176947

February 19, 2009

GAUDENCIO
M.
vs.
COMMISSION
ON
ELECTIONS
TAMBUNTING, Respondents.

3. No. 12 I am ELIGIBLE for the office I seek to be

elected.3 (Boldface and capitalization in the original)
CORDORA, Petitioner,

and

GUSTAVO

S.

DECISION
CARPIO, J.:
The Case
This is a petition for certiorari and mandamus, with prayer for the issuance
of a temporary restraining order under Rule 65 of the 1997 Rules of Civil
Procedure.
In EO Case No. 05-17, Gaudencio M. Cordora (Cordora) accused Gustavo S.
Tambunting (Tambunting) of an election offense for violating Section 74 in
relation to Section 262 of the Omnibus Election Code. The Commission on
Elections (COMELEC) En Banc dismissed Cordoras complaint in a
Resolution1 dated 18 August 2006. The present petition seeks to reverse
the 18 August 2006 Resolution as well as the Resolution 2 dated 20
February 2007 of the COMELEC En Banc which denied Cordoras motion for
reconsideration.
The Facts

Cordora stated that Tambunting was not eligible to run for local public
office because Tambunting lacked the required citizenship and residency
requirements.
To disprove Tambuntings claim of being a natural-born Filipino citizen,
Cordora presented a certification from the Bureau of Immigration which
stated that, in two instances, Tambunting claimed that he is an American:
upon arrival in the Philippines on 16 December 2000 and upon departure
from the Philippines on 17 June 2001. According to Cordora, these travel
dates confirmed that Tambunting acquired American citizenship through
naturalization in Honolulu, Hawaii on 2 December 2000. Cordora
concluded:
That Councilor Gustavo S. Tambunting contrary to the provision of Sec 74
(OEC): [sic] Re: CONTENTS OF CERTIFICATE OF CANDIDACY: which requires
the declarant/affiant to state, among others, under oath, that he is a
Filipino (No. 6), No. 9- residence requirement which he lost when [he
was] naturalized as an American Citizen on December 2, 2000 at [sic]
Honolulu, Hawaii, knowingly and willfully affirmed and reiterated that he
possesses the above basic requirements under No. 12 that he is
indeed eligible for the office to which he seeks to be elected, when
in truth and in fact, the contrary is indubitably established by his own
statementsbefore the Philippine Bureau of Immigration x x x. 4 (Emphases
in the original)

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

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

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

elected;

Tambunting further stated that he has resided in the Philippines since birth.
Tambunting has imbibed the Filipino culture, has spoken the Filipino

In his complaint affidavit filed before the COMELEC Law Department,

Cordora asserted that Tambunting made false assertions in the following
items:
That Annex A [Tambuntings Certificate of Candidacy for the 2001
elections] and Annex B [Tambuntings Certificate of Candidacy for the 2004
elections] state, among others, as follows, particularly Nos. 6, 9 and 12
thereof:
1. No. 6 I am a Natural Born/Filipino Citizen

language, and has been educated in Filipino schools. Tambunting

maintained that proof of his loyalty and devotion to the Philippines was
shown by his service as councilor of Paraaque.
To refute Cordoras claim that the number of years of residency stated in
Tambuntings certificates of candidacy is false because Tambunting lost his
residency because of his naturalization as an American citizen, Tambunting
contended that the residency requirement is not the same as citizenship.
The Ruling of the COMELEC Law Department
The COMELEC Law Department recommended the dismissal of Cordoras
complaint against Tambunting because Cordora failed to substantiate his
charges against Tambunting. Cordoras reliance on the certification of the
Bureau of Immigration that Tambunting traveled on an American passport
is not sufficient to prove that Tambunting is an American citizen.

The Issue
Cordora submits that the COMELEC acted with grave abuse of discretion
amounting to lack or excess of jurisdiction when it declared that there is no
sufficient evidence to support probable cause that may warrant the
prosecution of Tambunting for an election offense.
Cordoras petition is not an action to disqualify Tambunting because of
Tambuntings failure to meet citizenship and residency requirements.
Neither is the present petition an action to declare Tambunting a nonFilipino and a non-resident. The present petition seeks to prosecute
Tambunting for knowingly making untruthful statements in his certificates
of candidacy.
The Ruling of the Court
The petition has no merit. We affirm the ruling of the COMELEC En Banc.

The Ruling of the COMELEC En Banc

The COMELEC En Banc affirmed the findings and the resolution of the
COMELEC Law Department. The COMELEC En Banc was convinced that
Cordora failed to support his accusation against Tambunting by sufficient
and convincing evidence.
The dispositive portion of the COMELEC En Bancs Resolution reads as
follows:
WHEREFORE, premises considered, the instant complaint is hereby
DISMISSED for insufficiency of evidence to establish probable cause.
SO ORDERED.5
Commissioner Rene V. Sarmiento (Commissioner Sarmiento) wrote a
separate opinion which concurred with the findings of the En
Banc Resolution. Commissioner Sarmiento pointed out that Tambunting
could be considered a dual citizen. Moreover, Tambunting effectively
renounced his American citizenship when he filed his certificates of
candidacy in 2001 and 2004 and ran for public office.
Cordora filed a motion for reconsideration which raised the same grounds
and the same arguments in his complaint. In its Resolution promulgated on
20 February 2007, the COMELEC En Banc dismissed Cordoras motion for
reconsideration for lack of merit.

Whether there is Probable Cause to Hold Tambunting for Trial for

Having Committed an Election Offense
There was no grave abuse of discretion in the COMELEC En Bancs ruling
that there is no sufficient and convincing evidence to support a finding of
probable cause to hold Tambunting for trial for violation of Section 74 in
relation to Section 262 of the Omnibus Election Code.
Probable cause constitutes those facts and circumstances which would
lead a reasonably discreet and prudent man to believe that an offense has
been committed. Determining probable cause is an intellectual activity
premised on the prior physical presentation or submission of documentary
or testimonial proofs either confirming, negating or qualifying the
allegations in the complaint.6
Section 74 of the Omnibus Election Code reads as follows:
Contents of certificate of candidacy. The certificate of candidacy
shall state that the person filing it is announcing his candidacy for the
office stated therein and that he is eligible for said office; x x x the political
party to which he belongs; civil status; his date of birth; residence; his post
office address for all election purposes; his profession or occupation; that
he will support and defend the Constitution of the Philippines and will
maintain true faith and allegiance thereto; that he will obey the laws, legal
orders and decrees promulgated by the duly constituted authorities; that

he is not a permanent resident or immigrant to a foreign country; that the

obligation imposed by his oath is assumed voluntarily, without mental
reservation or purpose of evasion; and that the facts stated in the
certificate of candidacy are true to the best of his knowledge.
xxx
The person filing a certificate of candidacy shall also affix his latest
photograph, passport size; a statement in duplicate containing his bio-data
and program of government not exceeding one hundred words, if he so
desires.
Section 262 of the Omnibus Election Code, on the other hand, provides
that violation of Section 74, among other sections in the Code, shall
constitute an election offense.

We deem it necessary to reiterate our previous ruling in Mercado v.

Manzano, wherein we ruled that dual citizenship is not a ground for
disqualification from running for any elective local position.
To begin with, dual citizenship is different from dual allegiance. The former
arises when, as a result of the concurrent application of the different laws
of two or more states, a person is simultaneously considered a national by
the said states. For instance, such a situation may arise when a person
whose parents are citizens of a state which adheres to the principle of jus
sanguinis is born in a state which follows the doctrine of jus soli. Such a
person, ipso facto and without any voluntary act on his part, is
concurrently considered a citizen of both states. Considering the
citizenship clause (Art. IV) of our Constitution, it is possible for the
following classes of citizens of the Philippines to possess dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign
countries which follow the principle of jus soli;

Tambuntings Dual Citizenship

(2) Those born in the Philippines of Filipino mothers and alien

fathers if by the laws of their fathers country such children are
citizens of that country;

Tambunting does not deny that he is born of a Filipino mother and an

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

(3) Those who marry aliens if by the laws of the latters country the
former are considered citizens, unless by their act or omission they
are deemed to have renounced Philippine citizenship.
There may be other situations in which a citizen of the Philippines may,
without performing any act, be also a citizen of another state; but the
above cases are clearly possible given the constitutional provisions on
citizenship.
Dual allegiance, on the other hand, refers to the situation in which a
person simultaneously owes, by some positive act, loyalty to two or more
states. While dual citizenship is involuntary, dual allegiance is the result of
an individuals volition.
xxx
[I]n including 5 in Article IV on citizenship, the concern of the
Constitutional Commission was not with dual citizens per se but with
naturalized citizens who maintain their allegiance to their countries of
origin even after their naturalization. Hence, the phrase "dual citizenship"
in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be understood as

referring to "dual allegiance." Consequently, persons with mere dual

citizenship do not fall under this disqualification. Unlike those with
dual allegiance, who must, therefore, be subject to strict process
with respect to the termination of their status, for candidates with
dual citizenship, it should suffice if, upon the filing of their
certificates of candidacy, they elect Philippine citizenship to
terminate their status as persons with dual citizenship considering
that their condition is the unavoidable consequence of conflicting
laws of different states. As Joaquin G. Bernas, one of the most
perceptive members of the Constitutional Commission, pointed out: "[D]ual
citizenship is just a reality imposed on us because we have no control of
the laws on citizenship of other countries. We recognize a child of a Filipino
mother. But whether or not she is considered a citizen of another country is
something completely beyond our control."

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

By electing Philippine citizenship, such candidates at the same time

forswear allegiance to the other country of which they are also citizens and
thereby terminate their status as dual citizens. It may be that, from the
point of view of the foreign state and of its laws, such an individual has not
effectively renounced his foreign citizenship. That is of no moment as the
following discussion on 40(d) between Senators Enrile and Pimentel
clearly shows:

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

SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41,
page 17: "Any person with dual citizenship" is disqualified to run for any
elective local position. Under the present Constitution, Mr. President,
someone whose mother is a citizen of the Philippines but his father is a
foreigner is a natural-born citizen of the Republic. There is no requirement
that such a natural-born citizen, upon reaching the age of majority, must
elect or give up Philippine citizenship.
On the assumption that this person would carry two passports, one
belonging to the country of his or her father and one belonging to the
Republic of the Philippines, may such a situation disqualify the person to
run for a local government position?
SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the
moment when he would want to run for public office, he has to repudiate
one of his citizenships.
SENATOR ENRILE. Suppose he carries only a Philippine passport but the
country of origin or the country of the father claims that person,
nevertheless, as a citizen,? No one can renounce. There are such countries
in the world.1avvphi1

SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not
require an election. Under the Constitution, a person whose mother is a
citizen of the Philippines is, at birth, a citizen without any overt act to claim
the citizenship.
SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the
Gentlemans example, if he does not renounce his other citizenship, then
he is opening himself to question. So, if he is really interested to run, the
first thing he should do is to say in the Certificate of Candidacy that: "I am
a Filipino citizen, and I have only one citizenship."

SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts

that will prove that he also acknowledges other citizenships, then he will
probably fall under this disqualification.8 (Emphasis supplied)
We have to consider the present case in consonance with our rulings
in Mercado
v.
Manzano,9 Valles
v.
COMELEC,10 and AASJS
v.
11
Datumanong. Mercado and Valles involve similar operative facts as the
present case. Manzano and Valles, like Tambunting, possessed dual
citizenship by the circumstances of their birth. Manzano was born to
Filipino parents in the United States which follows the doctrine of jus soli.
Valles was born to an Australian mother and a Filipino father in Australia.
Our rulings in Manzano and Valles stated that dual citizenship is different
from dual allegiance both by cause and, for those desiring to run for public
office, by effect. Dual citizenship is involuntary and arises when, as a result
of the concurrent application of the different laws of two or more states, a
person is simultaneously considered a national by the said states. Thus,
like any other natural-born Filipino, it is enough for a person with dual
citizenship who seeks public office to file his certificate of candidacy and
swear to the oath of allegiance contained therein. Dual allegiance, on the
other hand, is brought about by the individuals active participation in the
naturalization process. AASJS states that, under R.A. No. 9225, a Filipino
who becomes a naturalized citizen of another country is allowed to retain
his Filipino citizenship by swearing to the supreme authority of the Republic
of the Philippines. The act of taking an oath of allegiance is an implicit
renunciation of a naturalized citizens foreign citizenship.

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

of the charge filed against him. Tambunting is eligible for the office which
he sought to be elected and fulfilled the citizenship and residency
requirements prescribed by law.

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

WHEREFORE, we DISMISS the petition. We AFFIRM the Resolutions of

the Commission on Elections En Bancdated 18 August 2006 and 20
February 2007 in EO Case No. 05-17.

In Sections 2 and 3 of R.A. No. 9225, the framers were not concerned with
dual citizenship per se, but with the status of naturalized citizens who
maintain their allegiance to their countries of origin even after their
naturalization.12 Section 5(3) of R.A. No. 9225 states that naturalized
citizens who reacquire Filipino citizenship and desire to run for elective
public office in the Philippines shall "meet the qualifications for holding
such public office as required by the Constitution and existing laws and, at
the time of filing the certificate of candidacy, make a personal and sworn
renunciation of any and all foreign citizenship before any public officer
authorized to administer an oath" aside from the oath of allegiance
prescribed in Section 3 of R.A. No. 9225. The twin requirements of swearing
to an Oath of Allegiance and executing a Renunciation of Foreign
Citizenship served as the bases for our recent rulings in Jacot v. Dal and
COMELEC,13 Velasco v. COMELEC,14 and Japzon v. COMELEC,15 all of which
involve natural-born Filipinos who later became naturalized citizens of
another country and thereafter ran for elective office in the Philippines. In
the present case, Tambunting, a natural-born Filipino, did not subsequently
become a naturalized citizen of another country. Hence, the twin
requirements in R.A. No. 9225 do not apply to him.
Tambuntings residency
Cordora concluded that Tambunting failed to meet the residency
requirement because of Tambuntings naturalization as an American.
Cordoras reasoning fails because Tambunting is not a naturalized
American. Moreover, residency, for the purpose of election laws, includes
the twin elements of the fact of residing in a fixed place and the intention
to return there permanently,16 and is not dependent upon citizenship.
In view of the above, we hold that Cordora failed to establish that
Tambunting indeed willfully made false entries in his certificates of
candidacy. On the contrary, Tambunting sufficiently proved his innocence

SO ORDERED.

[G.R. No. 157957. September 18, 2003]

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

petitioner Navarosa. The trial court also ordered petitioner Navarosa to pay
respondent Esto actual damages and attorneys fees. The dispositive
portion of the decision provides:
WHEREFORE, judgment is hereby rendered:
a) Declaring the Proclamation of xxx protestee [Navarosa] as the
duly elected Mayor of Libacao, Aklan and the Certificate of
Canvass of Votes and the Proclamation of the Winning
Candidates for Municipal Offices, dated May 17, 2001, as
null and void;
b) Declaring the protestant, Roger M. Esto, as the duly elected
Municipal Mayor of Libacao, Aklan in the May 14, 2001
election;
c) Ordering the protestee [Navarosa] to pay the sum
of P14,215.00 as actual and compensatory damages, and
the amount of P50,000.00 as and for attorneys fees, plus
the cost of suit.[4]
Petitioner Navarosa appealed the trial courts ruling to the COMELEC
(EAC Case No. A-9-2002). Respondent Esto, on the other hand, filed with
the trial court a motion for execution of the judgment pending petitioner
Navarosas appeal. Petitioner Navarosa opposed respondent Estos motion.
In the alternative, petitioner Navarosa offered to file a supersedeas bond to
stay execution pending appeal, should the trial court grant respondent
Estos motion.
In its Order of 22 March 2002 (Order), the trial court granted
respondent Estos motion subject to the filing of a P300,000 bond. However,
in the same order, the trial court also granted petitioner Navarosas prayer
to stay the execution pending appeal, upon filing a P600,000 supersedeas
bond. The Order reads:
The Supreme Court has explicitly recognized and given approval to
execution of judgments pending appeal in election cases, filed under
existing election laws. In these cases, the immediate execution was made
in accordance with Sec. 2, Rule 39 of the Rules of Court (Ramas et al. vs.
COMELEC, et al., G.R. No. 130831, 2/10/98). There is, therefore, no
question now that execution pending appeal may be granted.

xxx
[T]he grant of execution would give substance and meaning to the peoples
mandate specially since the court has established protestants right to the
office (Lindo vs. COMELEC cited in the Ramas case); more than 10 months
or nearly 1/3 of the 3-year term for Mayor had already lapsed (Gutierrez vs.
COMELEC, G.R. 126298, 3-25-97; Tobon Uy vs. COMELEC also cited in the
Ramas case). These are two good reasons to justify execution of the
decision pending appeal.
[P]rotestee [Navarosa] however, prays in the alternative, that should
execution pending appeal be granted, the same be stayed upon his [sic]
filing of supersedeas bond to be fixed by the court under Sec. 3, Rule 39,
1997 Rules of Civil Procedure.
Unlike Sec. 2, Rule 39 where the grant of execution pending appeal is
conditioned upon the presence of the good and valid reason for its grant,
Sec. 3, Rule 39 does not provide for any condition precedent before the
discretionary execution of Rule 2 may be stayed. All that it requires is that
a sufficient supersedeas bond must be approved by the court conditioned
upon the performance of the judgment allowed to be executed in case it
shall be finally sustained in whole or in part. Under this section, therefore,
the filing of a supersedeas bond sufficient in amount is enough to stay the
execution granted under Sec. 2.
Moreover, the margin of 42 votes in the instant case is not so big,
overwhelming or insurmountable as to be practically beyond or improbable
of being overturned by the higher courts. xxx
WHEREFORE, in view of the foregoing[,] the court finds that the protestant,
Roger M. Esto is entitled to the execution of the decision dated March 4,
2002, pending appeal, upon the filing of a bond which covers the salary
and emoluments of the office of the Municipal Mayor of Libacao, Aklan and
or the payment of all damages in the amount of P300,000.00, Philippine
Currency, in cash, surety bond or real property with assessed value in said
amount to be filed on or before April 3, 2002, furnishing copy thereof to the
protestee or his duly authorized representative.

The protestee, Charito Navarosa, considering that the margin is not so

insurmountable as to be beyond reversal by the higher court[,] is hereby
allowed to stay the execution of the decision of March 4, 2002 pending
appeal, by filing a supersedeas bond in double the amount posted by the
protestant, on or before April 3, 2002, furnishing copy thereof the
protestant or his duly authorized representative.[5]
Both petitioner Navarosa and respondent Esto sought reconsideration
of the Order but the trial court denied their motions on 5 April 2002.
Respondent Esto filed a petition for certiorari with the COMELEC
against the Order. In her memorandum to the petition, petitioner Navarosa
raised for the first time the issue of the trial courts failure to acquire
jurisdiction over the election protest because of respondent Estos failure to
pay the COMELEC filing fee.
The Ruling of the COMELEC
In its Resolution dated 28 November 2002 (Resolution), the COMELEC
Second Division affirmed the trial courts Order granting execution pending
appeal and nullified the stay of the execution. The Second Division also
found that respondent Esto duly paid the COMELEC filing fee. The
Resolution reads:
Going now to the main issue at hand, did respondent judge gravely abuse
his discretion and/or exceed his jurisdiction when he stayed the immediate
execution of his decision on a finding of good reasons he made in his
questioned Order of March 22, 2002 by allowing in the same Order the
filing of a supersedeas bond double the amount posted by petitioner?
The answer is yes.
It is [for] the Commission on Elections, in the exercise of its appellate
jurisdiction to issue the extraordinary writs of certiorari, prohibition,
mandamus and injunction over all contests involving elective municipal
officials decided by the trial courts of general jurisdiction elevated on
appeal, and not the trial court, that may order the stay or restrain the
immediate execution of the decision pending appeal granted by the trial
court of general jurisdiction in an election contest. Except when the trial
court reversed itself in a motion for reconsideration of its order granting
immediate execution, it cannot later on stay or restrain the execution
thereof in the guise of allowing the losing party to file a supersedeas
bond. The issue before the trial court where a motion for execution

pending appeal is filed is to determine whether or not there are good

reasons to justify the immediate execution pending appeal. The issue is not
whether x x x there are good reasons to stay the immediate execution of
the decision pending appeal.
The trial court, by granting the immediate execution of the March 4, 2002
decision, recognized that the good reasons cited in the questioned Order
constitute superior circumstances demanding urgency that will outweigh
the injuries or damages to the adverse party if the decision is reversed. By
declaring that petitioner Esto is the duly elected Mayor of Libacao, Aklan,
the trial court gave substance and meaning to the peoples mandate as
expressed in the ballot, especially since it has established petitioner Estos
right to the office. The trial court cannot indirectly reverse its substantial
finding of good reasons by a rule of procedure which does not strictly apply
in election protest cases when it allowed the filing of a supersedeas bond
under Section 3, Rule 39 of the 1997 Rules of Civil Procedure. To allow the
application of the said procedural relief would defeat the right of the
winning candidate in an election protest to hold the public office by virtue
of the peoples mandate expressed through the ballot and to perform the
functions of the said public office.
xxx
It is interesting to note that instead of expounding on the propriety of the
supersedeas bond to stay the execution of a judgment in an election
protest case, private respondent raised for the first time in his [sic]
memorandum the issue of lack of jurisdiction of the trial court over the
instant election protest for the alleged failure of petitioner Esto to pay the
filing fee of P300.00 required under Section 9, Rule 35 of the COMELEC
Rules of Procedure. However, the records of Election Case No. 129 of the
RTC of Kalibo, Aklan, Branch 9 showed otherwise. The Official Receipts
issued by the RTC of Kalibo, Aklan shows [sic] that petitioners paid a total
of P515.00 filing fees in Election Case No. 129 by specifically stating
therein [F]iling Fee in Election Case No. 129. At the time of filing the
election protest, petitioner specified that the payment made was to cover
the COMELEC filing fee for the election protest. Upon assessment,
petitioner paid not only the amount of P300.00 required under Section 9,
Rule 35 of the COMELEC Rules of Procedure, but a total sum of P515.00 as
filing fees. While it is true that the issue of jurisdiction may be raised
anytime, even on appeal, the same is of no moment now. [6]
Petitioner Navarosa sought reconsideration of this ruling but the
COMELEC En Banc denied her motion on 15 April 2003.

Hence, this petition.

On 10 June 2003, the Court required the parties to maintain the status
quo pending resolution of this petition.
The Issues
Petitioner Navarosa raises the following issues:
1. WHETHER PUBLIC RESPONDENT COMELEC EN BANC ACTED
WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN IT AFFIRMED THE 28
NOVEMBER 2002 RESOLUTION OF THE COMELEC SECOND
DIVISION FOR FAILURE TO RULE ON THE BASIC ISSUE OF
LACK OF JURISDICTION OF THE COURT A QUO OVER
RESPONDENT ESTOS ELECTION PROTEST FOR NONPAYMENT OF THE MANDATORY COMELEC FILING FEE
OF P300.00.
2. WHETHER PUBLIC RESPONDENT COMELEC EN BANC ACTED
WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN IT AFFIRMED THE 28
NOVEMBER 2002 RESOLUTION OF THE COMELEC SECOND
DIVISION DESPITE THE FACT THAT THERE WERE NO GOOD
REASONS TO EXECUTE THE 4 MARCH 2002 DECISION OF
THE TRIAL COURT.
3. WHETHER PUBLIC RESPONDENT COMELEC EN BANC ACTED
WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN IT AFFIRMED THE 28
NOVEMBER 2002 RESOLUTION OF THE COMELEC SECOND
DIVISION WHEN THE LATTER RULED THAT THE TRIAL
COURT HAD NO POWER TO ORDER THE STAY OF
EXECUTION OF ITS 4 MARCH 2002 DECISION PENDING
APPEAL IN AN ELECTION CONTEST, BECAUSE SECTION 3,
RULE 39 OF THE REVISED RULES OF COURT DOES NOT
APPLY TO ELECTION CASES.[7]
The Ruling of the Court
The petition has no merit.
The Trial Court Acquired Jurisdiction Over

Election Case No. 129

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

only P100 was indeed credited to the General Fund. Consequently,

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

courts jurisdiction before the COMELEC and eventually before this Court. In
contrast, in the instant case, petitioner Navarosa did not raise the
incomplete payment of the COMELEC filing fee in a motion to dismiss.
Consequently, the trial court proceeded with the revision of the contested
ballots and subsequently rendered judgment on the election
protest. Petitioner Navarosa raised for the first time the incomplete
payment of the COMELEC filing fee in her memorandum before the
COMELEC Second Division.
Thus, estoppel has set in precluding petitioner Navarosa from
questioning the incomplete payment of the COMELEC filing fee, and in
effect assailing the exercise of jurisdiction by the trial court over the
election protest. The law vests in the trial court jurisdiction over election
protests although the exercise of such jurisdiction requires the payment of
docket and filing fees by the party invoking the trial courts jurisdiction.
[20]
Estoppel now prevents petitioner Navarosa from questioning the trial
courts exercise of such jurisdiction, which the law and not any act of the
parties has conferred on the trial court. At this stage, the remedy for
respondent Estos incomplete payment is for him to pay the P200
deficiency in the COMELEC filing fee. [21] It is highly unjust to the electorate
of Libacao, Aklan, after the trial court has completed revision of the
contested ballots, to dismiss the election protest and forever foreclose the
determination of the true winner of the election for a mere P200 deficiency
in the COMELEC filing fee. We repeat that:
[E]lection contests involve public interest, and technicalities and
procedural barriers should not be allowed to stand if they constitute an
obstacle to the determination of the true will of the electorate in the choice
of their elective officials. And also settled is the rule that laws governing
election contests must be liberally construed to the end that the will of the
people in the choice of public officials may not be defeated by mere
technical objections. In an election case the court has an imperative duty
to ascertain by all means within its command who is the real candidate
elected by the electorate.[22]
Good Reasons Exist to Grant Execution
Pending Appeal in this Case
To grant execution pending appeal in election protest cases, the
following requisites must concur: (1) there must be a motion by the
prevailing party with notice to the adverse party; (2) there must be good
reasons for the execution pending appeal; and (3) the order granting
execution pending appeal must state the good reasons. [23] Petitioner

Navarosa concedes respondent Estos compliance with the first and third
requisites. What she contests is the trial courts finding that there are good
reasons to order discretionary execution of its decision.
In Ramas v. Commission on Elections,[24] the Court, after reviewing
pertinent jurisprudence, summarized the circumstances qualifying as good
reasons justifying execution pending appeal, thus:
In a nutshell, the following constitute good reasons, and a combination of
two or more of them will suffice to grant execution pending appeal: (1) the
public interest involved or the will of the electorate; (2) the shortness of
the remaining portion of the term of the contested office; and (3) the
length of time that the election contest has been pending.
The trial court in the present case, relying on cases [25] reviewed
in Ramas, invoked two good reasons to justify its order allowing execution
pending appeal. First, the order will give substance and meaning to the
peoples mandate. Second, more than 10 months or nearly 1/3 of the 3year term of the office in question had already lapsed. The COMELEC found
these good reasons sufficient. Being consistent with Ramas, we find no
grave abuse of discretion in the ruling of the trial court or of the COMELEC.
Petitioner Navarosas invocation of Camlian v. Commission on
Elections[26] is unavailing. In Camlian, the COMELEC ruled that
circumstances such as public interest in the true outcome of the
elections[;] that the protestee illegally manufactured votes[;] and that the
appeal was interposed for delay do not suffice to justify execution pending
appeal. On appeal, we sustained the COMELEC, noting that not every
invocation of public interest with x x x reference to the will of the
electorate can be appreciated as a good reason especially so if the same
appears to be self-serving and has not been clearly established. The Court
further pointed out that the protestant failed to substantiate his claim that
the appeal is dilatory as it in fact assails the trial courts ruling. These
circumstances
are
absent
in
the
present
case,
precluding Camlians application.
Section 3 of Rule 39 Not Applicable
To Election Protest Cases
Unlike the Election Code of 1971, [27] which expressly provided for
execution pending appeal of trial courts rulings in election protests, the
present election laws are silent on such remedy. Nevertheless, Section 2,

Rule 39 (Section 2) of the Rules of Court (now 1997 Rules of Civil

Procedure) applies in suppletory character to election cases, thus allowing
execution pending appeal in the discretion of the court. As explained
in Ramas:

In the earlier case of Gahol v. Riodique,[29] the Court explained the

legislative intent behind the enactment of Section 218 of the Election Code
of 1971. In Gahol, the Court gave an additional justification for allowing
execution pending appeal of decisions of trial courts, thus:

The Omnibus Election Code of the Philippines (B.P. Blg. 881) and the other
election laws do not specifically provide for execution pending appeal of
judgment in election cases, unlike the Election Code of 1971 whose Section
218 made express reference to the Rules of Court on execution pending
appeal; xxx

xxx [T]his innovative provision is the product of the bad experience of the
people under the previous election laws. Public policy underlies it. xxx
[S]omething had to be done to strike the death blow at the pernicious
grab-the-proclamation-prolong-the-protest
technique
often,
if
not
invariably, resorted to by unscrupulous politicians who would render
nugatory the peoples verdict against them and persist in continuing in an
office they very well know they have no legitimate right to hold. xxx [T]o
uphold the theory of Protestee that the very nature of the matter in dispute
in election contests, the holding of a public office and the performance of
its functions, makes gravely doubtful the propriety of an execution pending
appeal, what with the possible placing of the corresponding powers of
government in the hands of one who might ultimately turn out not to be
really entitled to the position, is to negate the unquestionable and patent
intent of the legislature to give as much recognition to the worth of a trial
judges decision as that which is initially ascribed by the law to the
proclamation by the board of canvassers. Why should the proclamation by
the board of canvassers suffice as basis of the right to assume office,
subject to future contingencies attendant to a protest, and not the decision
of a court of justice? Indeed, when it is considered that the board of
canvassers is composed of persons who are less technically prepared to
make an accurate appreciation of the ballots, apart from their being more
apt to yield extraneous considerations, that the board must act summarily,
practically [racing] against time, while, on the other hand, the judge has
the benefit of all the evidence the parties can offer and of admittedly
better technical preparation and background, apart from his being allowed
ample time for conscientious study and mature deliberation before
rendering judgment, one cannot but perceive the wisdom of allowing the
immediate execution of decisions in election cases adverse to the
protestees, notwithstanding the perfection and pendency of appeals
therefrom, as long as there are, in the sound discretion of the court, good
reasons therefor. (Emphasis supplied)

The failure of the extant election laws to reproduce Section 218 of the
Election Code of 1971 does not mean that execution of judgment pending
appeal is no longer available in election cases. In election contests
involving elective municipal officials, which are cognizable by courts of
general jurisdiction; and those involving elective barangay officials, which
are cognizable by courts of limited jurisdiction, execution of judgment
pending appeal under Section 2 of Rule 39 of the Rules of Court are
permissible pursuant to Rule 143 of the Rules of Court, which is now
Section 4, Rule 1 of the 1997 Rules of Civil Procedure. This Section 4
provides:
SEC 4. In what cases not applicable.- These Rules shall not apply to
election cases, land registration, cadastral, naturalization and insolvency
proceedings, and other cases not herein provided for, except by analogy or
in a suppletory character and whenever practicable and convenient.
As to election cases involving regional, provincial, and city officials, which
fall within the exclusive original jurisdiction of the COMELEC, Section 3 of
Article IX-C of the Constitution vests the COMELEC with the authority to
promulgate its rules of procedure in order to expedite disposition of
election cases, including pre-proclamation controversies. Additionally,
Section 52(c), Article VII of the Omnibus Election Code empowers the
COMELEC to promulgate rules and regulations implementing the provisions
of the Code or other laws which it is required to enforce and
administer. Accordingly, the COMELEC promulgated the COMELEC Rules of
Procedure. Section 1 of Rule 41 thereof expressly provides that [i]n the
absence of any applicable provision in [said] Rules, the pertinent provisions
of the Rules of Court in the Philippines shall be applicable by analogy or in
a suppletory character and effect. [28]

Thus, a primordial public interest to obviate a hollow victory for the

duly elected candidate as determined by the trial court lies behind the
present rule giving suppletory application to Section 2. Only a more
compelling contrary policy consideration can prevent the suppletory
application of Section 2. In insisting that the simple expedient of posting a
supersedeas bond can stay execution pending appeal, petitioner Navarosa
neither claims nor offers a more compelling contrary policy consideration.

Instead, she merely contends that Section 3 of Rule 39 (Section 3) applies

also in a suppletory character because its Siamese twin [30] provision,
Section 2, is already being so applied. Such simplistic reasoning both
ignores and negates the public interest underlying Section 2s
application. We cannot countenance such argument.
Furthermore, a supersedeas bond under Section 3 cannot fully protect
the interests of the prevailing party in election protest cases. Section 3
provides:
Stay of discretionary execution. Discretionary execution issued under the
preceding section may be stayed upon approval by the proper court of a
sufficient bond, filed by the party against whom it is directed, conditioned
upon the performance of the judgment or order allowed to be executed in
case it shall be finally sustained in whole or in part. The bond thus given
may be proceeded against on motion with notice to the surety. (Emphasis
supplied)
A supersedeas bond secures the performance of the judgment or
order appealed from in case of its affirmation. [31] Section 3 finds application
in ordinary civil actions where the interest of the prevailing party is capable
of pecuniary estimation, and consequently, of protection, through the filing
of a supersedeas bond. Thus, the penultimate sentence of Section 3 states:
[T]he bond thus given may be proceeded against on motion with notice to
the surety. Consequently, it finds no application in election protest cases
where judgments invariably include orders which are not capable of
pecuniary estimation such as the right to hold office and perform its
functions. As well observed by the COMELEC Second Division in its
Resolution in the instant case:
The supersedeas bond, as used under Section 3, Rule 39 of the 1997 Rules
of Civil Procedure, refers to a bond, either in cash or a surety bond, filed by
the losing party in an ordinary civil action to secure the performance or to
satisfy the judgment appealed from in case it is affirmed on appeal in favor
of the prevailing party. A supersedeas bond is filed purposely for the
performance of the judgment appealed from in case it is affirmed by the
appellate court. On the assumption that the filing of the supersedeas bond
applies in an election protest case, the practical considerations of the
matter dictate that it cannot secure the performance of or satisfy the
judgment rendered in an election protest which basically involves the right
to hold a public office and the performance of its functions in accordance
with the mandate of the law, except insofar as the monetary award
provided in the special order. By allowing the filing of a supersedeas bond

to stay the execution of a judgment in an election protest declaring the

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