days

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orm,
ETITION
nd conspicuous
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COMELEC/duly
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recall
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uthd
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CANDIDATES
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(Insuff.means
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(SEC.
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petition/authenticity
ts
fficial sought
PUBLCIATION
to be recalled.
of sigs.in:
NATIONAL
newspaper
of
SEC. 69 BY WHOM
EXERCISED
general circulation and a
The
shall be exercised by the
newpaper
of power
general

registered voters of a LGU to which the

local elective official subject of the recall
belongs.
WHY RECALL? Due to the voters loss of
confidence to the elected official
WHO MAY BE RECALLED? Any elective
PROVINCIAL, CITY, MUNICIPAL or BRGY
OFFICIAL
SEC. 70 INITIATION PROCESS

The COMELEC/duly authd

rep.shall, upon issuance of
cert., PROCEED indep.w/ the
VERIFICATION
and
AUTHENTICITY of the sigs. Of
the petitioners and reg.

The filing of any challenge or

protest shall be allowed w/in
the period provided in the
immediately preceding par.
(i.e., publication period) and
shall be ruled upon w/
FINALITY w/in 15 days from
the date of filing.

SEC. 71 - ELECTION ON RECALL

GARCIA v COMELEC

The COMELEC or its duly authorized rep.

shall SET the date of the elction or recall
which shall NOT be later than 30 days
upon the completion of the procedure
outlined above in case of brgy, city,
or municipal officials, and 45 days
provincial officials.

FACTS:

NOTE: THE OFFICIAL SOUGHT O BE

RECLLED SHALL BE AUTOMATICALLY
CONSDERED AS DULY REG. CANDIDATE/S
TO THE PERTINENT POSITIONS
SEC. 72 EFFECTIVITY OF RECALL
Only upon the election and proclamation
of the successor receiving the HIGHEST
no.of votes should the recall of an elective
official be effective.
Should the official sought to be recalled
receive
the
highest
no.
f
votes,
CONFIDENCE in him is thereby AFFIRMED
and he shall continue office.

SEC. 73 PROHIBITION FROM RESIG.

The elective olocal official sought to be
recalled NOT allowed to resign while the
recall process in progress
SEC. 74 LIMITATIONS ON RECALL
-

Recall election may only be done

once in the term of the elective
official for loss of confidence
No recall shall take place win 1 yr
from the date of the officials
assumption
to
office/
1
yr
immediately preceding a reg.
election

SEC. 75 EXPENSES INCIDENT TO

RECALL ELECTIONS
It shall be borne by the COMELEC (bot
NOTE: the publication shall be at the
petitioners expense)

CASES:

Petitioner Enrique T. Garcia was elected

governor of the province of Bataan in the
May 11, 1992 elections. In the early
evening of July 1993, some mayors, vicemayors and members of the Sangguniang
Bayan of the twelve (12) municipalities of
the province met at the National Power
Corporation compound in Bagac, Bataan.
At about 12:30 A.M of the following
day, July 2, 1993, they proceeded to
the Bagac town plaza where they
constituted
themselves
into
a
Preparatory Recall Assembly (PRA) to
INITIATE
the
recall
election
of
petitioner Garcia.
The mayor of Mariveles, Honorable Oscar,
de los Reyes, and the mayor of
Dinalupihan, the Honorable Lucila Payumo,
were chosen as Presiding Officer and
Secretary of the Assembly, respectively.
Thereafter, the Vice-Mayor of Limay, the
Honorable Ruben Roque, was recognized
and he moved that a RESOLUTION be
passed for the recall of the petitioner
on the ground of "loss of confidence.
The motion was unanimously seconded.
One hundred forty-six (146) names
appeared in Resolution No. 1 but only
eighty (80) carried the signatures of the
members of the PRA. Of the eighty (80)
signatures, only seventy-four (74) were
found genuine. 3 The PRAC of the province
had a membership of one hundred fortyfour (144) 4 and its majority was seventythree (73).
Petitioners filed with the respondent
COMELEC a petition to deny due course to
said Resolution No. 1. Petitioners alleged
that the PRAC failed to comply with the
"substantive and procedural requirement"
laid down in Section 70 of R.A. 7160,
otherwise known as the Local Government
Code of 1991. In a per curiamResolution
promulgated August 31, 1993, the
respondent COMELEC dismissed the
petition and scheduled the recall
elections for the position of Governor
of Bataan on October 11 , 1993.

CONTENTION:
Recall
unconstitutional

thru

PRAC

is

In accord with this Resolution, it appears

that on September 22, 1993, the
Honorable Mayor of Dinalupihan, Oscar de
los Reyes again sent Notice of Session to
the members of the PRAC to "convene in
session on September 26, 1993 at the
town plaza of Balanga, Bataan at 8:30
o'clock in the morning.
ISSUE: W/N the recall thru PRAC suffers
constitutional infirmity
HELD:
We find the original Petition and the
Supplemental Petition assailing the
constitutionality of section 70 of R.A.
7160
insofar
as
it
allows
a
preparatory recall assembly initiate
the recall of local elective officials as
bereft of merit.
BACKGROUND
Recall is a mode of removal of a public
officer by the people before the end
of his term of office. The people's
prerogative to remove a public officer is
an incident of their sovereign power and in
the absence of constitutional restraint, the
power is implied in all governmental
operations. Such power has been held
to be indispensable for the proper
administration of public affairs. 12 Not
undeservedly, it is frequently described as
a fundamental right of the people in a
representative democracy
FIRST MODE OF RECALL. The Batasang
Pambansa then enacted BP 337 entitled
"The Local Government Code of 1983."
Section 54 of its Chapter 3 provided
only one mode of initiating the recall
elections of local elective officials,
i.e., by petition of at least twenty-five
percent (25%) of the total number of
registered
voters
in
the
local
government unit concerned.
REVOLUTION. In February 1986, however,
our people more than exercised their right

of recall for they resorted to revolution

and they booted of office the highest
elective officials of the land.
SECOND MODE OF RECALL. In response to
this constitutional call, Congress enacted
R.A. 7160, otherwise known as the Local
Government Code of 1991, which took
effect on January 1, 1992. Congress
provided for a second mode of
initiating the recall process through a
preparatory recall assembly which in
the provincial level is composed of all
mayors,
vice-mayors
and sanggunian members
of
the
municipalities and component cities.
We quote the pertinent provisions of R.A.
7160. [Recall of provincial, city, or
municipal officials shall be validly initiated
through a resolution adopted by a majority
of all the members of the preparatory
recall assembly concerned during its
session called for the purpose.]
LEG. HISTORY. A reading of the legislative
history of these recall provisions will
reveal that the idea of empowering a
preparatory recall assembly to initiate the
recall from office of local elective officials
originated
from
the
House
of
Representatives and NOT from the Senate.
2 PRINCIPAL REASONS WHY PRA IS
ADOPTED AS ALT.MODE
(a) to diminish the difficulty of initiating
recall thru the direct action of the people;
and
(b) to cut down on its expenses.
[DISADV. OF RECALL BY DIR. ACTION BY
THE PEOPLE: too cumbersome, too
expensive and almost impossible to
implement.
CONTENTION OF PETITIONERS: "the
right to recall does not extend merely to
the prerogative of the electorate to
reconfirm or withdraw their confidence on
the official sought to be recalled at a
special election.

We do not agree. Petitioners cannot point

to
any
specific
provision
of
the
Constitution
that
will
sustain
this
submission. To be sure, there is nothing in
the Constitution that will remotely suggest
that
the
people
have
the
"sole and exclusive right to decide on
whether to initiate a recall proceeding."
The Constitution did not provide for any
mode, let alone a single mode, of initiating
recall elections. 19 Neither did it prohibit
the adoption of multiple modes of
initiating recall elections.
Congress was not straightjacketed to
one
particular
mechanism
of
initiating recall elections. What the
Constitution simply required is that
the mechanisms of recall, whether
one or many, to be chosen by
Congress should be EFFECTIVE. Using
its constitutionally granted discretion,
Congress deemed it wise to enact an
alternative mode of initiating recall
elections to supplement the former mode
of initiation by direct action of the people.
Congress has made its choice as called for
by the Constitution and it is not the
prerogative of this Court to supplant this
judgment.
Petitioners have misconstrued the nature
of the initiatory process of recall by the
PRAC. They have embraced the view that
initiation by the PRAC is not initiation by
the people. This is a misimpression for
initiation by the PRAC is also initiation by
the people, albeit done indirectly through
their
representatives.
It
is
not
constitutionally impermissible for the
people to act through their elected
representatives.
RESOLUTION IS ONLY A START OF THE
PROCESS. It cannot be seriously doubted
that a PRA resolution of recall merely,
starts the process. It is part of the
process but is not the whole process. This
ought to be self evident for a PRA
resolution of recall that is not submitted to
the COMELEC for validation will not recall
its subject official.

Likewise, a PRA resolution of recall that is

rejected by the people in the election
called for the purpose bears no effect
whatsoever.
ANOTHER CONTENTION: PRA may inject
political color in their decision as they may
initiate recall proceeding.
SC: A careful reading of the law, however,
will ineluctably show that it does not give
an asymmetrical treatment to locally
elected officials belonging to the political
minority. First to be considered is the
politically neutral composition of the
preparatory recall assembly.
MEMBERSHIP NOT APPORTIONED BY POLL
PARTIES. Under the law, all mayors, vicemayors and sangguniang members of the
municipalities and component cities are
made members of the preparatory recall
assembly at the provincial level. Its
membership is not apportioned to political
parties. No significance is given to the
political affiliation of its members. ALSO,
he Code provides that the only ground to
recall a locally elected public official is loss
of confidence of the people. The members
of the PRAC are in the PRAC not in
representation of their political parties but
as representatives of the people. By
necessary implication, loss of confidence
cannot be premised on mere differences in
political party affiliation. Indeed, our
Constitution
encourages
multi-party
system for the existence of opposition
parties is indispensable to the growth and
nurture of democratic system. Clearly
then, the law as crafted cannot be faulted
for discriminating against local officials
belonging to the minority. NOT
a
ground to strike down a law as
unconstitutional
NOTICE A CONDITION SINE QUA NON. As
explained above, the diverse and distinct
composition of the membership of a
preparatory recall assembly guarantees
that all the sectors of the electorate
province shall be heard. It is for this
reason that in Our Resolution of
September 21, 1993, We held that notice
to all the members of the recall assembly
is a condition sine qua non to the validity
of its proceedings.

NOTE: The law also requires a qualified

majority of all the preparatory recall
assembly
members
to
convene
in session and in a public place.
Needless to state, compliance with these
requirements is necessary, otherwise,
there will be no valid resolution of
recall which can be given due course
by the COMELEC.
LOSS
OF
CONFIDENCE;
BEYOND
INQUIRY. Neither a COMELEC not the
Court pass upon the question of what loss
of confidence is that led to a recall
proceeding. Former Senator Aquilino
Pimentel, Jr., a major author of the subject
law in his book The Local Government
Code of 1991: The Key to National
Development,
stressed
the
same
reason why the substantive content
of a vote of lack of confidence is
beyond any inquiry, thus:
There is only one ground for the recall of
local
government
officials:
loss
of
confidence. This means that the people
may petition or the Preparatory Recall
Assembly may resolve to recall any local
elective officials without specifying any
particular
ground
except
loss
of
confidence. There is no need for them to
bring up any charge of abuse or corruption
against the local elective officials who are
the subject of any recall petition.
In the case of Evardone vs. Commission
on Elections, et al., 204 SCRA 464, 472
(1991), the Court ruled that "loss of
confidence" as a ground for recall is a
political question. In the words of the
Court, "whether or not the electorate of
the municipality of Sulat has lost
confidence in the incumbent mayor is a
political question.
AGAIN, THE RECALL RESOL. IS NOT EQUAL
TO RECALL ITSELF.

What is the Resol. for? Resolution of recall

is a mere proposal to the electorate of
Bataan to subject petitioner to a new test
of faith. The electorate of Bataan may or
may not recall petitioner Garcia in an
appropriate election. If the electorate reelects petitioner Garcia, then the proposal
to recall him made by the preparatory
recall assembly is rejected. On the other
hand, if the electorate does not re-elect
petitioner Garcia, then he has lost the
confidence of the people which he once
enjoyed.
RULING: DISMISSED FOR LACK OF MERIT

CLAUDIO v COMELEC
FACTS:
Jovito O. Claudio, petitioner in G.R. No.
140560, was the duly elected mayor of
Pasay City in the May 11, 1998 elections.
He assumed office on July 1, 1998.
Sometime during the second week of May
1999, the chairs of several barangays in
Pasay City gathered to discuss the
possibility of filing a petition for recall
against Mayor Claudio for loss of
confidence. On May 19, 1999, at the
residence of barangay chair Benjamin Lim,
Jr. in Barangay 11, Zone 4, Pasay City,
several barangay chairs formed an ad hoc
committee for the purpose of convening
the
PRA.
Richard
Advincula
was
designated as Chair.
1,073 members of the PRA composed of
barangay
chairs,
kagawads,
and
sangguniang kabataan chairs of Pasay
City, adopted Resolution No. 01, S-1999,
entitled RESOLUTION TO INITIATE THE
RECALL OF JOVITO O. CLAUDIO AS MAYOR
OF PASAY CITY FOR LOSS OF CONFIDENCE.
In a letter dated June 29, 1999, Advincula,
as chair of the PRA, invited the Mayor,
Vice-Mayor, Station Commander, and
thirteen (13) Councilors of Pasay City

to witness the formal submission to

the Office of the Election Officer on
July 2, 1999 of the petition for recall.
The petition for recall was filed on July 2,
1999, accompanied by an affidavit of
service of the petition on the Office of the
City Mayor. Pursuant to the rules of the
COMELEC, copies of the petition were
posted on the bulletin boards of the local
COMELEC office, the City Hall, the Police
Department, the public market at Libertad
St. and Taft Avenue, and at the entrance of
the Sta. Clara Church on P. Burgos St., all
in
Pasay
City.
Subsequently,
a
verification of the authenticity of the
signatures on the resolution was
conducted by Ligaya Salayon, the
election
officer
for
Pasay
City
designated by the COMELEC.
OPPOSITION: Filed by Claudio alleging
substantive and procedural defects among
others: (1) the signatures affixed to the
resolution were actually meant to show
attendance at t
he PRA meeting;
(3) the convening of the PRA took place
within the one-year prohibited period.
COMELEC: granted the petition for
recall. On the issue of whether the PRA
was constituted by a majority of its
members, the COMELEC held that the
1,073 members who attended the May 29,
1999 meeting were more than necessary
to constitute the PRA, considering that its
records showed the total membership of
the PRA was 1,790, while the statistics of
the Department of Interior and Local
Government (DILG) showed that the total
membership of the PRA was 1,876. Finally,
on whether the petition for recall violated
the bar on recall within one year from the
elective official's assumption of office, the
COMELEC ruled in the negative, holding
that recall is a process which starts with
the filing of the petition for recall. Since
the petition was filed on July 2, 1999,
exactly one year and a day after petitioner
Claudio's assumption of office, it was held
that the petition was filed on time.
ISSUES:

(1) W/N the process of recall starts at the

act of convening and resolving to initiate a
recal as suchsince May 29, 1999 was less
than a year after he had assumed office,
the PRA was illegally convened and all
proceedings held thereafter, including the
filing of the recall petition on July 2, 1999,
were null and void. When does the process
start?
(2) Whether the Phrase "Regular Local
Election" in the Same Paragraph (b) of 74
of the Local Government Code includes
the Election Period for that Regular
Election or Simply the Date of Such
Election
HELD:
(1) The COMELEC maintains that the
process of recall starts with the filing of
the petition for recall and ends with the
conduct of the recall election, and that,
since the petition for recall in this case
was filed on July 2, 1999, exactly one year
and a day after petitioner's assumption of
office, the recall was validly initiated
outside the one-year prohibited period.
WHAT
DOES
RECALL
IN
LGC
CONTEMPLATE? We can agree that recall is
a process which begins with the convening
of the preparatory, recall assembly or the
gathering of the signatures at least 25% of
the
registered
voters
of
a
local
government unit, and then proceeds to
the filing of a recall resolution or petition
with the COMELEC, the verification of such
resolution or petition, the fixing of the
date of the recall election, and the holding
of the election on the scheduled date.
[5]
However, as used in paragraph (b)
of 74, "recall" refers to the election
itself by means of which voters
decide whether they should retain
their local official or elect his
replacement. Several reasons can be
cited in support of this conclusion.
RECALL IS RECALL ELECTION NOT
RECALL PROCEEDINGS. First, 74 deals
with restrictions on the power of recall. It
is in fact entitled "Limitations on Recall."
On the other hand, 69 provides that "the
power of recall ...shall be exercised by the
registered voters of a local government

unit to which the local elective official

belongs." Since the power vested on
the electorate is not the power to
initiate recall proceedings[6] but the
power to elect an official into office,
the limitations in 74 cannot be
deemed to apply to the entire recall
proceedings. In other words, the term
"recall" in paragraph (b) refers only to the
recall election, excluding the convening
of the PRA and the filing of a petition
for recall with the COMELEC, or the
gathering of the signatures of at
least 25 % of the voters for a petition
for recall. WHY? Bec. they are merely
PRELIMINARY steps for the purpose of
initiating a recall.
If these preliminary proceedings do not
produce a decision by the electorate on
whether the local official concerned
continues to enjoy the confidence of the
people, then, the prohibition in paragraph
(b) against the holding of a recall, except
one year after the official's assumption of
office, cannot apply to such proceedings.
The second reason why the term "recall"
in paragraph (b) refers to recall election is
to be found in the purpose of the
limitation itself. The purpose of the first
limitation is to provide a reasonable
basis for judging the performance of
an
elective
local
official.

INFERENCE: Hence, in this case, as long

as the election is held outside the oneyear
period,
the
preliminary
proceedings to initiate a recall can be
held even before the end of the first
year in office of a local official.

of the PRA for the purpose of discussing

the performance in office of elective local
officials would be to unduly restrict the
constitutional right of speech and of
assembly of its members.
The people cannot just be asked on the
day of the election to decide on the
performance of their officials. The
crystallization and formation of an
informed public opinion takes time.
Indeed, it is wrong to assume that such
assemblies will always eventuate in a
recall election. To the contrary, they may
result in the expression of confidence in
the incumbent.
Accdg to SC (speaking through J.
Mendoza): Indeed, recalls initiated
directly by 25% of the registered
voters of a local government unit
cannot be more representative of the
sentiments of the people than those
initiated by PRAs whose members
represent the entire electorate in the
local government unit. Voters who
directly initiate recalls are just as
vulnerable to political maneuverings or
manipulations as are those composing
PRAs.
As the recall election in Pasay City is
set on April 15, 2000, more than one
year after petitioner assumed office
as mayor of that city, we hold that
there is no bar to its holding on that
date.

NO RECALL ELECTION, NO JUDGMENT

BY ELECTORATE. As already stated, it is
not the holding of PRA nor the adoption of
recall
resolutions
that
produces
a
judgment on the performance of the
official concerned; it is the vote of the
electorate in the Election that does.
Therefore, as long as the recall election is
not held before the official concerned has
completed one year in office, he will not
be
judged
on
his
performance
prematurely.

(2) CONTENTION: Petitioner contends,

however, that the date set by the
COMELEC for the recall election is within
the second period of prohibition in
paragraph (b). He argues that the phrase
"regular local elections" in paragraph (b)
does not only mean "the day of the
regular local election" which, for the year
2001 is May 14, but the election period as
well, which is normally at least forty five
(45) days immediately before the day of
the election. Hence, he contends that
beginning March 30, 2000, no recall
election may be held. CONTENTION
untenable

Third, to construe the term "recall" in

paragraph (b) as including the convening

LAW IS UNAMBIGUOUS. The law is

unambiguous in providing that "[n]o recall

shall take place within . . . one (1) year

immediately preceding a regular local
election." Had Congress intended this
limitation to refer to the campaign period,
which period is defined in the Omnibus
Election Code,[10] it could have expressly
said so.
To construe the second limitation in
paragraph (b) as including the
campaign period would reduce this
period to eight months. Such an
interpretation must be rejected,
because it would devitalize the right
of recall which is designed to make
local
government
units"
more
responsive and accountable.
merely designates the period when such
elective local official may be subject to
recall election, that is, during the second
year of office."
RULING: PETITION DISMISSED

GOH v BAYRON
FACTS:
Goh filed before the COMELEC a recall
petition against Mayor Bayron due to loss
of trust and confidence brought about by
gross violation of Anti-graft and Corrupt
Practices Act among others
COMELEC promulgated Resolution No.
9864. Resolution No. 9864 found the recall
petition sufficient in form and substance,
but suspended the funding of any and all
recall elections until the resolution of the
funding issue.
Mayor Bayron filed with the COMELEC an
Omnibus Motion for Reconsideration and
for Clarification9 which prayed for the
dismissal of the recall petition for lack of
merit.
Goh filed Opposition w/c prayed fro the
immediate publication of the recall
petition, the verification process, and the
recall election against Mayor Bayron.

ISSUE: Does the 2014 GAA [Footnote 3 Republic Act No. 10633] include such
contingency fund in the Commissions
appropriations?
HELD:
We grant the petition.
The COMELECs Fiscal Autonomy
The 1987 Constitution expressly provides
the COMELEC with the power to [e]nforce
and administer all laws and regulations
relative to the conduct of an election,
plebiscite,
initiative,
referendum,
andrecall.26 The 1987 Constitution not
only guaranteed the COMELECs fiscal
autonomy,27 but also granted its head, as
authorized by law, to augment items in its
appropriations from its savings.28 The
2014 GAA provides such authorization to
the COMELEC Chairman.
Despite Resolution No. 9882s statement
about the alleged failure of the 2014 GAA
to provide for a line item appropriation for
the conduct of recall elections, we hold
that the 2014 GAA actually expressly
provides for a line item appropriation
for the conduct and supervision of
recall elections. This is found in the
Programs category of its 2014 budget,
which the COMELEC admits in its
Resolution No. 9882 is a line item for the
Conduct and supervision of elections,
referenda, recall votes and plebiscites.
In
addition,
one
of
the
specific
constitutional functions of the COMELEC is
to conduct recall elections. When the
COMELEC
receives
a
budgetary
appropriation for its Current Operating
Expenditures, such appropriation includes
expenditures to carry out its constitutional
functions, including the conduct of recall
elections.
Under these factual circumstances, we
find it difficult to justify the COMELECs
reasons why it is unable to conduct recall
elections in 2014 when the COMELEC was
able to conduct recall elections in 2002
despite lack of the specific words
Conduct and supervision of x x x recall
votes x x x in the 2002 GAA. In the 2002

GAA, the phrase Conduct and supervision

of elections and other political exercises
was sufficient to fund the conduct of recall
elections. In the 2014 GAA, there is a
specific line item appropriation for
the Conduct and supervision of x x
x recall votes x x x.
The COMELECs Alleged Lack of
Authority
to Augment the Project Recall
Elections
from
Savings
Despite the PhP2 billion to PhP10.7 billion
savings existing in the COMELECs coffers,
the COMELEC asserts that it cannot legally
fund the exercise of recall elections. The
power to augment from savings lies
dormant
until
authorized
by
law.39 Flexibility in the use of public funds
operates only upon legislative fiat.
POWER TO AUGMENT BY THE CHAIRMAN.
There is no clash between the COMELEC
and Congress. We reiterate that the
2014 GAA provides a line item
appropriation for the COMELECs
conduct of recall elections. Since the
COMELEC now admits that it does not
have sufficient funds from its current line
item appropriation for the Conduct and
supervision of x x x recall votes x x x to
conduct an actual recall election, then
there is therefore an actual deficiency in
its operating funds for the current year.
This is a situation that allows for the
exercise of the COMELEC Chairmans
power to augment actual deficiencies
in the item for the Conduct and
supervision of x x x recall votes x x x
in its budget appropriation.
However, contrary to the COMELECs
assertion, the appropriations for personnel
services and maintenance and other
operating
expenses falling
under
Conduct and supervision of elections,
referenda, recall votes and plebiscites
constitute a line item which can be
augmented from the COMELECs savings
to fund the conduct of recall elections in
2014. The conduct of recall elections
requires only operating expenses, not
capital outlays. The COMELECs existing
personnel in Puerto Princesa are the same
personnel who will evaluate the sufficiency

of the recall petitions and conduct the

recall election
Moreover, the line item appropriation for
the Conduct and supervision of x x x
recall votes x x x in the 2014 GAA is
sufficient to fund recall elections. There is
no constitutional requirement that the
budgetary appropriation must be loaded in
contingent funds. The Congress has
plenary power to lodge such appropriation
in current operating expenditures.
Considering that there is an existing line
item appropriation for the conduct of
recall elections in the 2014 GAA, we see
no reason why the COMELEC is unable to
perform its constitutional mandate to
enforce and administer all laws and
regulations relative to the conduct of x x x
recall.45 Should the funds appropriated in
the 2014 GAA be deemed insufficient,
then the COMELEC Chairman may exercise
his authority to augment such line item
appropriation
from
the
COMELECs
existing savings, as this augmentation is
expressly authorized in the 2014 GAA.
RULING: PETITION GRANTED.

FAILURE
OF
POSTPONEMENT
OF
SPECIAL ELECTIONS

ELECTIONS,
ELECTIONS,

POSTPONEMENT OF ELECTION (SEC.

6, ART. I)
GROUNDS - When for any serious cause
such as violence, terrorism, loss or
destruction of election paraphernalia or
records,
force
majeure,
and
other
analogous causes of such a nature that
the holding of a free, orderly and honest
election should become IMPOSSIBLE

WHO MAY FILE? COMELEC, motu proprio or

upon verified petition by any interested
party and after due notice and hearing
DATE COMELEC shall fix a new election
date w/c should be reasonable CLOSE to
the date of the election not held,
suspended or w/c resulted in a failure to

elect but NOT later than 30 days AFTER

the cessation of the cause for such
postponement or suspension of the
election or failure to select.
NOTE: Only the COMELEC EN BANC has
the power to postpone or reset an election
or declare a failure of election by a
MAJORITY VOTE of its mems (Sec. 4, RA
7166)
FAILURE OF ELECTION
A petition to declare failure of elections is
a SPECIAL ELECTION. It is the COMELEC en
banc that is vested w/ exclusive
jurisdiction to delicate a failure of
election,.
3 INSTANCES WHEN FAILURE
ELECTION MAY BE DECLARED

OF

If on account of force majeure, violence,

terrorism, fraud, or other analogous
causes:
(a) No election is held - the election in
any polling place has NOT been
held on the date fixed; or
(b) Election is suspended the election
had been suspended before the
hour fixed by law for the closing of
the voting; or
(c) Election is held after the voting
and during the prep and the
transmission of the ERs or in the
custody, or canvass thereof, such
election results in a failure to elect
on account of force majeure, etc.
NEW
DATE
FOR
HOLDING
OR
CONTINUATION OF ELECTION in any
of such cases, if the failure or suspension
of election would affect the result of the
election, the COMELEC shall, via verified
petition by any interested party and after
due notice and hearing, CALL for the
holding or continuation of the election not
held, suspended, or w/c resulted in a
failure to elect on a date reasonably
close to the date of election NOT
held, etc. but NOT later than 30 days
after the cessation of the election or
failure to elect .

CONSEQUENCES
OF
FAILURE
TO
ELECT - in the 3 instances, what is
common is a resulting failure to elect.
There is failure of election only when the
will of the electorate has been mutted and
CANNOT be ascertained. If the will of the
people is determinable, the same must as
far as possible be respected.
NATURE OF POWER TO DECLARE
FAILURE OF ELECTION such power is
an extraordinary remedy; Courts should be
slow in nullifying elections, exercising the
power only when it is shown that the
irregularities and frauds are so numerous
as to show an unmistakable intention or
design to defraud and defeat the true
expression of the will of the electorate.
ALLEGATIONS IN THE PETITION must
make out a prima facie case for the
declaration of failure of election. It is only
when the election is attended b patent
and
In case a permanent vacancy shall
massive
occur in the Senate or House of
Representatives at least one (1) year
before the expiration of the term, the
Commission shall call and hold a
special election to fill the vacancy not
earlier than sixty (60) days nor longer
than ninety (90) days after the
occurrence of the vacancy. However, in
case of such vacancy in the Senate, the
special
election
shall
be
held
irregularities and illegalities that the
election should be annulled.
3 CONDITIONS TO DECLARE A FAILURE
OF ELECTION
(1) No voting has take place in any
precinct, or even there was voting,
the election nevertheless results in
failure to elect;
(2) The votes NOT cast would affect
the result of the election; and
(3) The cause of such failure of
election should have been force
majeure, violence, terrorism, fraud
or other analogous causes.
NOTE:
The
concurrence
of
these
circumstances JUSTIFIES the calling of
special elections. The cause of such failure
may arise before or after the casting of
votes on the day of elections.

While fraud is a ground to declare a failure

of election, the commission of fraud MUST
be such that it prevented or suspended
the holding of an election including the
preparation and transmission of the ERs.

petitioner commenced suit before the

COMELEC by filing a petition seeking
to suspend the canvassing of votes
and/or proclamation in Quezon City
and to declare a failure of elections.

WHO HAS THE POWER TO DECLARE

FAILURE OF ELECTION? COMELEC may
exercise the power motu proprio or upon
verified petition. The hearing of the
case msut be summary in nature.

The said petition was supposedly filed

pursuant to Section 6[3] of the Omnibus
Election Code (Batas Pambansa Blg. 881,
as amended) on the ground of massive
and orchestrated fraud and acts
analogous thereto which occurred
after the voting and during the
preparation of election returns and in
the custody or canvass thereof, which
resulted in a failure to elect.

A pre-proclamation controversy is NOT the

same as an action for annulment of
election or declaration of failure of
elections.
FIXING THE
ELECTIONS.

DATE

FOR

SPECIAL

Result of the election means the net

result of the election in the rest of the
precincts in a given constituency, such
that of the margin of the leading
candidate is less than the total no. of
votes in the precinct where there was
failure of election, then such failure would
certainly affect the result of the election.
HENCE, SPECIAL ELECTION MUST BE
HELD
REQTS AS TO DATE. In fixing the date
for special elections,the COMELEC should
see to it that:
(a) It should NOT be later than 30 days
after the cessation of the cause of
the posdtponement or suspension
of the election or the failure to
elect; and
(b) It should NOT reasonably close to
the date of the election NOT held,
suspended or w/c resulted in the
failure to elect.

CASES:
SISON v COMELEC
FACTS:
It appears that while the election returns
were being canvassed by the Quezon City
Board of Canvassers but before the
winning candidates were proclaimed,

He alleged that the Board of Canvassers

announced that ERs w/ NO inner seal
would be included in the canvass; there
were precincts w/ missing ERs, among
others.
PROCLAMATION OF WINNER. While the
petition was pending before the COMELEC,
Board of Canvassers proclaimed the
winners including post of Vice Mayor.
COMELEC: dismissed the petition
Hence, this petition.
ISSUE: W/N the COMELEC erred in its
decision
HELD:
At the outset, we notice that petitioner
exhibits an ambivalent stand as to what
exactly is the nature of the remedy he
availed of at the time he initiated
proceedings before the COMELEC in SPC
No. 98-134. At the start, he anchors
his initiatory petition under Section
6[6] of the Omnibus Election Code
regarding failure of elections but he
later builds his case as a preproclamation controversy which is
covered by Sections 241-248 of the
Omnibus Election Code.
Recently, in Matalam v. Commission on
Elections,[8] we have already declared
that a pre-proclamation controversy is not
the same as an action for annulment of
election results or declaration of failure of

elections, founded as they are on different

grounds.
3 INSTANCES WHERE FAILURE
ELECTIONS MAY BE DECLARED

OF

(a) the election in any polling place has

not been held on the date fixed on
account of force majeure, violence,
terrorism, fraud, or other analogous
causes;
(b) the election in any polling place had
been suspended before the hour fixed by
law for the closing of the voting on
account
of force
majeure,
violence,
terrorism, fraud, or other analogous
causes; or
(c) after the voting and during the
preparation and transmission of the
election returns or in the custody or
canvass thereof, such election results in a
failure to elect on account of force
majeure, violence, terrorism , fraud, or
other analogous causes
SC: We have painstakingly examined
petitioners petition before the COMELEC
but found nothing therein that could
support an action for declaration of failure
of elections.He never alleged at all that
elections were either not held or
suspended. Furthermore, petitioners
claim of failure to elect stood as a
bare
conclusion
bereft
of
any
substantive support to describe just
exactly how the failure to elect came
about.
PRE-PROCLAMATION DIFF. FROM FAILURE
OF ELECTION. With respect to preproclamation controversy, it is well to note
that the scope of pre-proclamation
controversy is only limited to the issues
enumerated under Section 243[10] of the
Omnibus
Election
Code,
and
the
enumeration therein is restrictive and
exclusive.
PROPER REMEDY. However, with the
proclamation of the winning candidate for
the position contested, the question of
whether the petition raised issues proper
for a pre-proclamation controversy is
already of no consequence since the

well-entrench rule in such situation is

that a pre-proclamation case before
the COMELEC is no longer viable, the
more appropriate remedies being a
regular election protest or a petition
for quo warranto.
IN THE CASE AT BAR: But as we have
earlier declared, his petition, though
assuming to seek a declaration of failure
of elections, is actually a case of preproclamation controversy and, hence, not
falling within the ambit of the exception. In
any case, that omnibus resolution would
not have been applied in the first place
because that was issued posterior to the
date when the herein challenge resolution
was promulgated which is June 22,
1998. There was no provision that such
omnibus
resolution
should
have
retroactive effect.
RULING: PETITION DISMISSED

AMPATUAN v COMELEC
FACTS:
Petitioners[4] and
respondents[5] were
candidates for the provincial elective
positions in the province ofMaguindanao in
the May
14,
2001 election.Petitioner Ampatuan and
respondent Candao contended
for
the
position
of
governor.
The
slate
of Ampatuan emerged as winners as per
election returns.
Respondents filed a petition for annulment
of election results and declaration of
failure
of
elections
in
several
municipalities. They claimed that the
election was a completely a sham and
farcical. The ballots were filled-up en
masse by a few persons the night before
election day, and in some precincts, the
ballot boxes, official ballots and other
election paraphernalia were not delivered
at all.[8]
SUSPENSION
OF
PROCLAMATION.
COMELEC issued said order
for
Congressman of 2nd district, gov., vice
gov. and board mems of Maguindanao.

MOTION TO LIFT GRANTED. The board

proclaimed the aforementioned winners.

irregularities

Respondents filed with the Supreme Court

a petition to set aside the Comelec order
dated June 14, 2001, and preliminary
injunction to suspend the effects of the
proclamation
of
the
petitioners.
[13]
Meantime,
petitioners
assumed
their respective offices on June 30,
2001. On July 17, 2001, the Court
resolved
to
deny
respondents
petition.

Thus, theComelec, in the case of

actions for annulment of election
results or declaration of failure of
elections, may conduct technical
examination of election documents
and compare and analyze voters
signatures and thumbprints in order to
determine whether or not the elections
had indeed been free, honest, and clean
elections.

The COMELEC further ordered a random

technical examination on four to seven
precincts per municipality on the thumbmarks and signatures of the voters who
voted and affixed in their voters
registration records, and forthwith directed
the production of relevant election
documents in these municipalities.

NOTE: The fact that a candidate

proclaimed has assumed office does not
deprive the Comelec of its authority to
annul
any
canvass
and
illegal
proclamation.[28] In the case at bar, we
cannot
assume
that
petitioners
proclamation and assumption into office
on June 30, 2001, was legal precisely
because the conduct by which the
elections were held was put in issue by
respondents
in
their
petition
for
annulment of election results and/or
declaration of failure of elections.

Petitioners filed
the present petition.
Accdg to petitioners, proper remedy is
NOT failure of elections but election
protest. The former is heard summarily
while the latter, full-blown trial.
ISSUE: whether the Commission on
Elections was divested of its jurisdiction to
hear and decide respondents petition for
declaration of failure of elections after
petitioners had been proclaimed.
HELD:
We deny the petition.
Difference of pre-proclamation controversy
v.failure of elections
PREPROCLAMATION
The Comelec is
restricted, in preproclamation cases,
to an examination
of
the
election
returns on their face
and
is
without
jurisdiction to go
beyond or behind
them
and
investigate election

FAILURE OF
ELECTION
The Comelec is
duty
bound
to
investigate
allegations of fraud,
terrorism, violence,
and
other
analogous causes in
actions
for
annulment
of
election results or
for declaration of

failure of elections,

We are not unmindful of the fact that a

pattern of conduct observed in past
elections has been the pernicious grabthe-proclamation-prolong-the-protest
slogan of some candidates or parties such
that even if the protestant wins, it
becomes a mere pyrrhic victory, i.e., a
vindication when the term of office is
about to expire or has expired. xxx We
have but to reiterate the oft-cited rule that
the validity of a proclamation may be
challenged even after the irregularly
proclaimed candidate has assumed office.[
Respondents petition for declaration of
failure of elections, from which the present
case arose, exhaustively alleged massive
fraud and terrorism that, if proven, could
warrant a declaration of failure of
elections.
The Comelec en banc has the authority to
annul election results and/or declare a
failure of elections (Sec. 6).
IN THE CASE AT BAR: the Comelec is dutybound to conduct an investigation as to
the veracity of respondents allegations of

massive fraud and terrorism that attended

the conduct of the May 14, 2001 election.
It is well to stress that the Comelec has
started
conducting
the
technical
examination on November 16, 2001.
However, by an urgent motion for a
temporary restraining order filed by
petitioners, in virtue of which we issued a
temporary restraining order on November
20, 2001, the technical examination was
held in abeyance until the present. In
order not to frustrate the ends of
justice,
we
lift
the
temporary
restraining order and allow the
technical examination to proceed
with deliberate dispatch.
RULING: PETITION DISMISSED