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EN BANC

[G.R. No. 133486. January 28, 2000.]


ABS-CBN BROADCASTING CORPORATION , petitioner, vs.
COMMISSION ON ELECTIONS, respondent.
Quiason Makalintal Barot Torres & Ibarra for petitioner. The
Solicitor General for respondent.
SYNOPSIS
This is a petition for certiorari under Rule 65 of the Rules of Court
led by ABS-CBN Broadcasting Corporation assailing the
COMELEC En Banc Resolution No. 98-1419 dated April 21, 1998
approving the issuance of a restraining order to stop petitioner ABS-
CBN or any other groups, its agents or representatives from
conducting exit survey and to authorize the Honorable Chairman to
issue the same. Because of the issuance of this resolution, petitioner
led the instant case, and on May 9, 1998, the Court issued the
temporary restraining order prayed for by petitioner. The lone issue
to be resolved in this case is whether or not the respondent Comelec
acted with grave abuse of discretion amounting to lack or excess of
jurisdiction when it approved the issuance of a restraining order
enjoining the petitioner or any other group, its agents or
representatives from conducting exit polls during the May 11, 1998
elections.
The Supreme Court found the petition meritorious. The Court ruled
that the holding of exit polls and the dissemination of their results
through mass media constitute an essential part of the freedoms of
speech and of the press. Hence, the Comelec cannot ban them totally
in the guise of promoting clean, honest, orderly and credible
elections. Moreover, the Comelec's concern with the possible
noncommunicative effect of exit polls disorder and confusion in
the voting centers does not justify a total ban on them.
Undoubtedly, the assailed Comelec Resolution was too broad, since
its application is without quali cation as to whether the polling is
disruptive or not. Concededly, the Omnibus Election Code prohibits
disruptive behaviors around the voting centers. There was no
showing, however, that exit polls or the means to interview voters
cause chaos in voting centers. Neither had any evidence been
presented proving that the presence of exit poll reporters near the
election precincts tended to create disorder or confuse the voters.
Accordingly, the petition was granted and the temporary restraining
order issued by the Court was made permanent.
SYLLABUS
1. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF
RIGHTS; FREEDOM OF SPEECH AND OF THE PRESS;
NATURE AND SCOPE THEREOF. The freedom of expression is
a fundamental principle of our democratic government. It "is a
'preferred' right and, therefore, stands on a higher level than
substantive economic or other liberties. . . . [T]his must be so
because the lessons of history, both political and legal, illustrate that
freedom of thought and speech is the indispensable condition of
nearly every other form of freedom." Our Constitution clearly
mandates that no law shall be passed abridging the
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freedom of speech or of the press. In the landmark case Gonzales v.


Comelec, this Court enunciated that at the very least, free speech and
a free press consist of the liberty to discuss publicly and truthfully
any matter of public interest without prior restraint. The freedom of
expression is a means of assuring individual self-ful llment, of
attaining the truth, of securing participation by the people in social
and political decision-making, and of maintaining the balance
between stability and change. It represents a profound commitment
to the principle that debates on public issues should be uninhibited,
robust, and wide open. It means more than the right to approve
existing political beliefs or economic arrangements, to lend support
to of cial measures, or to take refuge in the existing climate of
opinion on any matter of public consequence. And paraphrasing the
eminent Justice Oliver Wendell Holmes, we stress that the freedom
encompasses the thought we hate, no less than the thought we agree
with.DTAaCE

2. ID.; ID.; ID.; ID.; LIMITATIONS; CLEAR AND PRESENT


DANGER TEST. This Court adheres to the "clear and present
danger" test. It implicitly did in its earlier decisions in Primicias v.
Fugoso and American Bible Society v. City of Manila; as well as in
later ones, Vera v. Arca, Navarro v. Villegas, Imbong v. Ferrer, Blo
Umpar Adiong v. Comelec and, more recently, in Iglesia ni Cristo v.
MTRCB. In setting the standard or test for the "clear and present
danger" doctrine, the Court echoed the words of Justice Holmes:
"The question in every case is whether the words used are used in
such circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that
Congress has a right to prevent. It is a question of proximity and
degree." A limitation on the freedom of expression may be justi ed
only by a danger of such substantive character that the state has a
right to prevent. Unlike in the "dangerous tendency" doctrine, the
danger must not only be clear but also present. "Present" refers to the
time element; the danger must not only be probable but very likely to
be inevitable. The evil sought to be avoided must be so substantive
as to justify a clamp over one's mouth or a restraint of a writing
instrument.
3. ID.; ID.; ID.; ID.; JUSTIFICATION FOR RESTRICTION.
Doctrinally, the Court has always ruled in favor of the freedom of
expression, and any restriction is treated an exemption. The power to
exercise prior restraint is not to be presumed; rather the presumption
is against its validity. And it is respondent's burden to overthrow such
presumption. Any act that restrains speech should be greeted with
furrowed brows, so it has been said. To justify a restriction, the
promotion of a substantial government interest must be clearly
shown. Thus: "A government regulation is suf ciently justi ed if it is
within the constitutional power of the government, if it furthers an
important or substantial government interest; if the governmental
interest is unrelated to the suppression of free expression; and if the
incidental restriction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that interest." Hence,
even though the government's purposes are legitimate and
substantial, they cannot be pursued by means that broadly sti e
fundamental personal liberties, when the end can be more narrowly
achieved.
4. ID.; ID.; ID.; ID.; TOTAL BAN ON EXIT POLL NOT
JUSTIFIED. The Comelec's concern with the possible
noncommunicative effect of exit polls disorder and confusion in
the voting centers does not justify a total ban on them.
Undoubtedly, the assailed Comelec Resolution is too broad, since its
application is without quali cation as to whether the polling is
disruptive or not. Concededly, the Omnibus Election Code prohibits
disruptive behavior around the voting centers. There is no showing,
however, that exit polls or the means to interview voters cause chaos
in voting centers. Neither has any evidence been presented proving
that the presence of exit poll reporters near an election precinct
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tends to create disorder or confuse the voters. Moreover, the


prohibition incidentally prevents the collection of exit poll data and
their use for any purpose. The valuable information and ideas that
could be derived from them, based on the voters' answers to the
survey questions will forever remain unknown and unexplored.
Unless the ban is restrained, candidates, researchers, social scientists
and the electorate in general would be deprived of studies on the
impact of current events and of election-day and other factors on
voters' choices. In Daily Herald Co. vs. Munro, the US Supreme
Court held that a statute, one of the purposes of which was to prevent
the broadcasting of early returns, was unconstitutional because such
purpose was impermissible, and the statute was neither narrowly
tailored to advance a state interest nor the least restrictive alternative.
Furthermore, the general interest of the State in insulating voters
from outside in uences is insuf cient to justify speech regulation. Just
as curtailing election-day broadcasts and newspaper editorials for the
reason that they might indirectly affect the voters' choices is
impermissible, so is regulating speech via an exit poll restriction.
The absolute ban imposed by the Comelec cannot, therefore, be justi
ed. It does not leave open any alternative channel of communication
to gather the type of information obtained through exit polling. On
the other hand, there are other valid and reasonable ways and means
to achieve the Comelec end of avoiding or minimizing disorder and
confusion that may be brought about by exit surveys.
5. ID.; ID.; ID.; ID.; EXIT POLLS DO NOT TRANSGRESS THE
SANCTITY AND SECRECY OF THE BALLOT. The contention
of public respondent that exit polls indirectly transgress the sanctity
and the secrecy of the ballot is off-tangent to the real issue. Petitioner
does not seek access to the ballots cast by the voters. The ballot
system of voting is not at issue here. The reason behind the principle
of ballot secrecy is to avoid vote buying through voter identi cation.
Thus, voters are prohibited from exhibiting the contents of their of
cial ballots to other persons, from making copies thereof, or from
putting distinguishing marks thereon so as to be identi ed. Also
proscribed is nding out contents of the ballots cast by particular
voters or disclosing those of disabled or illiterate voters who have
been assisted. Clearly, what is forbidden is the association of voters
with their respective votes, for the purpose of assuring that the votes
have been cast in accordance with the instructions of a third party.
This result cannot, however, be achieved merely through the voters'
verbal and con dential disclosure to a pollster of whom they have
voted for. In exit polls, the contents of the of cial ballot are not
actually exposed. Furthermore, the revelation of whom an elector has
voted for is not compulsory, but voluntary. Voters may also choose
not to reveal their identities. Indeed, narrowly tailored
countermeasures may be prescribed by the Comelec, so as to
minimize or suppress incidental problems in the conduct of exit
polls, without transgressing the fundamental rights of our people.
VITUG, J., separate opinion:
CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO FREE
SPEECH AND INFORMATION; NOT ILLIMITABLE AND
IMMUNE FROM THE VALID EXERCISE OF AN EVER
DEMANDING AND PERVASIVE POLICE POWER. While I
understand what the ponencia is saying quite laudably, I also
appreciate, upon the other hand, the concern of the Commission on
Elections, i.e., that the conduct of exit polls can have some adverse
effects on the need to preserve the sanctity of the ballot. The
Commission performs an indispensable task of ensuring free, honest,
and orderly elections and of guarding against any frustration of the
true will of the people. Expectedly, it utilizes all means available
within its power and
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authority to prevent the electoral process from being manipulated


and rendered an absurdity. Like my colleagues, I greatly prize the
freedom of expression but, so also, I cherish no less the right of the
people to express their will by means of the ballot. In any case, I
must accept the reality that the right to information and free speech is
not illimitable and immune from the valid exercise of an ever
demanding and pervasive police power. Whether any kind of
restraint should be upheld or declared invalid in the proper balancing
of interest is one that must be resolved at any given moment, not on
perceived circumstances, but on prevailing facts. aDIHCT

KAPUNAN, J., dissenting opinion:


1. POLITICAL LAW; CONSTITUTIONAL LAW; RIGHT TO
FREE SPEECH; IF THE RIGHT TO FREE SPEECH COLLIDES
WITH A NORM OF CONSTITUTIONAL STATURE, THE RULE
ON HEAVY PRESUMPTION OF INVALIDITY DOES NOT
APPLY. The majority opinion cites the general rule that any
restrictions to freedom of expression would be burdened with a
presumption of invalidity and should be greeted with "furrowed
brows." While this has been the traditional approach, this rule does
not apply where, as in this case, the Comelec exercised its
Constitutional functions of securing the secrecy and sanctity of the
ballots and ensuring the integrity of the elections. Thus, Mr. Justice
Feliciano in National Press Club (NPC) v. Comelec wrote: The
technical effect of Article IX (C) (4) of the Constitution may be seem
to be that no presumption of invalidity arises in respect of
supervisory or regulatory authority on the part of the COMELEC for
the purpose of securing equal opportunity among candidates for
political of ce, although such supervision or regulation may result in
some limitation of the right of free speech and free press. For
supervision or regulation of the operations of media enterprises is
scarcely conceivable without such accompanying limitation. Thus,
the applicable rule is the general, time honored one that a statute
is presumed to be constitutional and that the party asserting its
unconstitutionality must discharge the burden of clearly and
convincingly proving that assertion. The NPC decision holds that if
the right to free speech collides with a norm of constitutional stature,
the rule on heavy presumption of invalidity does not apply.
2. ID.; ID.; ID.; IF NO PRESUMPTION OF INVALIDITY ARISES,
THERE IS NO OCCASION FOR THE APPLICATION OF THE
CLEAR AND PRESENT DANGER TEST. Our Constitution
mandates the Comelec to enforce and administer laws and
regulations relative to the conduct of elections and to secure the
secrecy and sanctity of the ballots to ensure orderly, honest, credible
and peaceful elections. This Constitutional provision effectively
displaces the general presumption of invalidity in favor of the
presumption that Comelec acted in the exercise of its constitutionally
mandated powers.If no presumption of invalidity arises, I see no
occasion for the application of the "clear and present danger test." As
this Court, through Mr. Justice Mendoza, succinctly observed: . . .
the clear-and- present danger test is not, however, a sovereign
remedy for all free speech problems. As has been pointed out by a
thoughtful student of constitutional law, it was originally formulated
for the criminal law and only later appropriated for free speech cases.
For the criminal law is necessarily concerned with the line at which
innocent preparation ends and guilty conspiracy or attempt begins.
Clearly, it is inappropriate as a test for determining the constitutional
validity of law which, like 11(b) of R.A. No. 6646, are not
concerned with the content of political ads but only with their
incidents. To apply the clear-and-present danger test to such
regulatory measures would be like using a sledgehammer to drive a
nail when a regular hammer is all that is needed.
DECISION
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PANGANIBAN, J : p

The holding of exit polls and the dissemination of their results


through mass media constitute an essential part of the freedoms of
speech and of the press. Hence, the Comelec cannot ban them totally
in the guise of promoting clean, honest, orderly and credible
elections. Quite the contrary, exit polls properly conducted and
publicized can be vital tools in eliminating the evils of election-
xing and fraud. Narrowly tailored countermeasures may be
prescribed by the Comelec so as to minimize or suppress the
incidental problems in the conduct of exit polls, without
transgressing in any manner the fundamental rights of our people.
The Case and the Facts
Before us is a Petition for Certiorari under Rule 65 of the Rules of
Court assailing Commission on Elections (Comelec) en banc
Resolution No. 98-1419 1 dated April 21, 1998. In the said
Resolution, the poll body
"RESOLVED to approve the issuance of a restraining order to stop ABS-
CBN or any other groups, its agents or representatives from conducting
such exit survey and to authorize the Honorable Chairman to issue the
same."
The Resolution was issued by the Comelec allegedly upon
"information from [a] reliable source that ABS-CBN (Lopez Group)
has prepared a project, with PR groups, to conduct radio-TV
coverage of the elections . . . and to make [an] exit survey of the . . .
vote during the elections for national of cials particularly for
President and Vice President, results of which shall be [broadcast]
immediately." 2 The electoral body believed that such project might
con ict with the of cial Comelec count, as well as the unof cial quick
count of the National Movement for Free Elections (Namfrel). It also
noted that it had not authorized or deputized Petitioner ABS-CBN to
undertake the exit survey.
On May 9, 1998, this Court issued the Temporary Restraining Order
prayed for by petitioner. We directed the Comelec to cease and
desist, until further orders, from implementing the assailed
Resolution or the restraining order issued pursuant thereto, if any. In
fact, the exit polls were actually conducted and reported by media
without any difficulty or problem.
The Issues
Petitioner raises this lone issue: "Whether or not the Respondent
Commission acted with grave abuse of discretion amounting to a
lack or excess of jurisdiction when it approved the issuance of a
restraining order enjoining the petitioner or any [other group], its
agents or representatives from conducting exit polls during the . . .
May 11 elections." 3
In his Memorandum, 4 the solicitor general, in seeking to dismiss the
Petition, brings up additional issues: (1) mootness and (2)
prematurity, because of petitioner's failure to seek a reconsideration
of the assailed Comelec Resolution. LibLex

The Petition 5 is meritorious.


The Court's Ruling
Procedural Issues: Mootness and Prematurity

The solicitor general contends that the petition is moot and academic,
because the May
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11, 1998 election has already been held and done with. Allegedly,
there is no longer any actual controversy before us.
The issue is not totally moot. While the assailed Resolution referred
speci cally to the May 11, 1998 election, its implications on the
people's fundamental freedom of expression transcend the past
election. The holding of periodic elections is a basic feature of our
democratic government. By its very nature, exit polling is tied up
with elections. To set aside the resolution of the issue now will only
postpone a task that could well crop up again in future elections. 6
In any event, in Salonga v. Cruz Pano, the Court had occasion to
reiterate that it "also has the duty to formulate guiding and
controlling constitutional principles, precepts, doctrines, or rules. It
has the symbolic function of educating bench and bar on the extent
of protection given by constitutional guarantees." 7 Since the
fundamental freedoms of speech and of the press are being invoked
here, we have resolved to settle, for the guidance of posterity,
whether they likewise protect the holding of exit polls and the
dissemination of data derived therefrom.
The solicitor general further contends that the Petition should be
dismissed for petitioner's failure to exhaust available remedies before
the issuing forum, speci cally the filing of a motion for
reconsideration.
This Court, however, has ruled in the past that this procedural
requirement may be glossed over to prevent a miscarriage of justice,
8 when the issue involves the principle of social justice or the
protection of labor, 9 when the decision or resolution sought to be set
aside is a nullity, 10 or when the need for relief is extremely urgent
and certiorari is the only adequate and speedy remedy available. 11
The instant Petition assails a Resolution issued by the Comelec en
banc on April 21, 1998, only twenty (20) days before the election
itself. Besides, the petitioner got hold of a copy thereof only on May
4, 1998. Under the circumstances, there was hardly enough
opportunity to move for a reconsideration and to obtain a swift
resolution in time for the May 11, 1998 elections. Moreover, not only
is time of the essence; the Petition involves transcendental
constitutional issues. Direct resort to this Court through a special
civil action for certiorari is therefore justified.
Main Issue:
Validity of Conducting Exit Polls
An exit poll is a species of electoral survey conducted by quali ed
individuals or group of individuals for the purpose of determining
the probable result of an election by con dentially asking randomly
selected voters whom they have voted for, immediately after they
have of cially cast their ballots. The results of the survey are
announced to the public, usually through the mass media, to give an
advance overview of how, in the opinion of the polling individuals or
organizations, the electorate voted. In our electoral history, exit polls
had not been resorted to until the recent May 11, 1998 elections.
In its Petition, ABS-CBN Broadcasting Corporation maintains that it
is a responsible member of the mass media, committed to report
balanced election-related data, including "the exclusive results of
Social Weather Station (SWS) surveys conducted in fteen
administrative regions."

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It argues that the holding of exit polls and the nationwide reporting
of their results are valid exercises of the freedoms of speech and of
the press. It submits that, in precipitately and unquali edly restraining
the holding and the reporting of exit polls, the Comelec gravely
abused its discretion and grossly violated the petitioner's
constitutional rights.
Public respondent, on the other hand, vehemently denies that, in
issuing the assailed Resolution, it gravely abused its discretion. It
insists that the issuance thereof was "pursuant to its constitutional
and statutory powers to promote a clean, honest, orderly and credible
May 11, 1998 elections"; and "to protect, preserve and maintain the
secrecy and sanctity of the ballot." It contends that "the conduct of
exit surveys might unduly confuse and in uence the voters," and that
the surveys were designed "to condition the minds of people and
cause confusion as to who are the winners and the [losers] in the
election," which in turn may result in "violence and anarchy."
Public respondent further argues that "exit surveys indirectly violate
the constitutional principle to preserve the sanctity of the ballots," as
the "voters are lured to reveal the contents of ballots," in violation of
Section 2, Article V of the Constitution; 12 and relevant provisions of
the Omnibus Election Code. 13 It submits that the constitutionally
protected freedoms invoked by petitioner "are not immune to
regulation by the State in the legitimate exercise of its police power,"
such as in the present case.
The solicitor general, in support of the public respondent, adds that
the exit polls pose a "clear and present danger of destroying the
credibility and integrity of the electoral process," considering that
they are not supervised by any government agency and can in
general be manipulated easily. He insists that these polls would sow
confusion among the voters and would undermine the of cial
tabulation of votes conducted by the Commission, as well as the
quick count undertaken by the Namfrel.
Admittedly, no law prohibits the holding and the reporting of exit
polls. The question can thus be more narrowly de ned: May the
Comelec, in the exercise of its powers, totally ban exit polls? In
answering this question, we need to review quickly our jurisprudence
on the freedoms of speech and of the press.
Nature and Scope of Freedoms of Speech and of the Press
The freedom of expression is a fundamental principle of our
democratic government. It "is a 'preferred' right and, therefore,
stands on a higher level than substantive economic or other
liberties. . . . [T]his must be so because the lessons of history, both
political and legal, illustrate that freedom of thought and speech is
the indispensable condition of nearly every other form of freedom."
14
Our Constitution clearly mandates that no law shall be passed
abridging the freedom of speech or of the press. 15 In the landmark
case Gonzales v. Comelec, 16 this Court enunciated that at the very
least, free speech and a free press consist of the liberty to discuss
publicly and truthfully any matter of public interest without prior
restraint. LLpr

The freedom of expression is a means of assuring individual self-ful


llment, of attaining the truth, of securing participation by the people
in social and political decision-making, and of maintaining the
balance between stability and change. 17 It represents a profound
commitment to the principle that debates on public issues should be
uninhibited, robust, and wide open. 18 It means more than the right to
approve existing political beliefs or economic arrangements, to lend
support to of cial measures, or to take refuge in the

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existing climate of opinion on any matter of public consequence.


And paraphrasing the eminent Justice Oliver Wendell Holmes, 19 we
stress that the freedom encompasses the thought we hate, no less
than the thought we agree with.
Limitations
The realities of life in a complex society, however, preclude an
absolute exercise of the freedoms of speech and of the press. Such
freedoms could not remain unfettered and unrestrained at all times
and under all circumstances. 20 They are not immune to regulation by
the State in the exercise of its police power. 21 While the liberty to
think is absolute, the power to express such thought in words and
deeds has limitations.
I n Cabansag v. Fernandez 22 this Court had occasion to discuss two
theoretical tests in determining the validity of restrictions to such
freedoms, as follows:
"These are the 'clear and present danger' rule and the 'dangerous tendency'
rule. The rst, as interpreted in a number of cases, means that the evil
consequence of the comment or utterance must be 'extremely serious and
the degree of imminence extremely high' before the utterance can be
punished. The danger to be guarded against is the 'substantive evil' sought
to be prevented. . . ." 23
"The 'dangerous tendency' rule, on the other hand, . . . may be epitomized
as follows: If the words uttered create a dangerous tendency which the
state has a right to prevent, then such words are punishable. It is not
necessary that some de nite or immediate acts of force, violence, or
unlawfulness be advocated. It is suf cient that such acts be advocated in
general terms. Nor is it necessary that the language used be reasonably
calculated to incite persons to acts of force, violence, or unlawfulness. It is
suf cient if the natural tendency and probable effect of the utterance be to
bring about the substantive evil which the legislative body seeks to
prevent." 24
Unquestionably, this Court adheres to the "clear and present danger"
test. It implicitly did in its earlier decisions in Primicias v. Fugoso 25
and American Bible Society v. City of Manila; 26 as well as in later
ones, Vera v. Arca, 27 Navarro v. Villegas, 28 Imbong v. Ferrer, 29 Blo
Umpar Adiong v. Comelec 30 and, more recently, in Iglesia ni Cristo
v. MTRCB. 31 In setting the standard or test for the "clear and present
danger" doctrine, the Court echoed the words of Justice Holmes:
"The question in every case is whether the words used are used in
such circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that
Congress has a right to prevent. It is a question of proximity and
degree." 32
A limitation on the freedom of expression may be justi ed only by a
danger of such substantive character that the state has a right to
prevent. Unlike in the "dangerous tendency" doctrine, the danger
must not only be clear but also present. "Present" refers to the time
element; the danger must not only be probable but very likely to be
inevitable. 33 The evil sought to be avoided must be so substantive as
to justify a clamp over one's mouth or a restraint of a writing
instrument. 34
Justification for a Restriction
Doctrinally, the Court has always ruled in favor of the freedom of
expression, and any restriction is treated an exemption. The power to
exercise prior restraint is not to be presumed; rather the presumption
is against its validity. 35 And it is respondent's burden to

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overthrow such presumption. Any act that restrains speech should be


greeted with furrowed brows, 36 so it has been said. Cdpr

To justify a restriction, the promotion of a substantial government


interest must be clearly shown. 37 Thus:
"A government regulation is suf ciently justi ed if it is within the
constitutional power of the government, if it furthers an important or
substantial government interest; if the governmental interest is unrelated to
the suppression of free expression; and if the incidental restriction on
alleged First Amendment freedoms is no greater than is essential to the
furtherance of that interest." 38
Hence, even though the government's purposes are legitimate and
substantial, they cannot be pursued by means that broadly sti e
fundamental personal liberties, when the end can be more narrowly
achieved. 39
The freedoms of speech and of the press should all the more be
upheld when what is sought to be curtailed is the dissemination of
information meant to add meaning to the equally vital right of
suffrage. 40 We cannot support any ruling or order "the effect of
which would be to nullify so vital a constitutional right as free
speech." 41 When faced with borderline situations in which the
freedom of a candidate or a party to speak or the freedom of the
electorate to know is invoked against actions allegedly made to
assure clean and free elections, this Court shall lean in favor of
freedom. For in the ultimate analysis, the freedom of the citizen and
the State's power to regulate should not be antagonistic. There can be
no free and honest elections if, in the efforts to maintain them, the
freedom to speak and the right to know are unduly curtailed. 42
True, the government has a stake in protecting the fundamental right
to vote by providing voting places that are safe and accessible. It has
the duty to secure the secrecy of the ballot and to preserve the
sanctity and the integrity of the electoral process. However, in order
to justify a restriction of the people's freedoms of speech and of the
press, the state's responsibility of ensuring orderly voting must far
outweigh them.
These freedoms have additional importance, because exit polls
generate important research data which may be used to study in
uencing factors and trends in voting behavior. An absolute
prohibition would thus be unreasonably restrictive, because it
effectively prevents the use of exit poll data not only for election-day
projections, but also for long-term research. 43
Comelec Ban on Exit Polling
In the case at bar, the Comelec justi es its assailed Resolution as
having been issued pursuant to its constitutional mandate to ensure a
free, orderly, honest, credible and peaceful election. While admitting
that "the conduct of an exit poll and the broadcast of the results
thereof [are] . . . an exercise of press freedom," it argues that "[p]ress
freedom may be curtailed if the exercise thereof creates a clear and
present danger to the community or it has a dangerous tendency." It
then contends that "an exit poll has the tendency to sow confusion
considering the randomness of selecting interviewees, which further
make[s] the exit poll highly unreliable. The probability that the
results of such exit poll may not be in harmony with the of cial count
made by the Comelec . . . is ever present. In other words, the exit
poll has a clear and present danger of destroying the credibility and
integrity of the

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electoral process."
Such arguments are purely speculative and clearly untenable. First,
by the very nature of a survey, the interviewees or participants are
selected at random, so that the results will as much as possible be
representative or re ective of the general sentiment or view of the
community or group polled. Second, the survey result is not meant to
replace or be at par with the of cial Comelec count. It consists merely
of the opinion of the polling group as to who the electorate in general
has probably voted for, based on the limited data gathered from
polled individuals. Finally, not at stake here are the credibility and
the integrity of the elections, which are exercises that are separate
and independent from the exit polls. The holding and the reporting of
the results of exit polls cannot undermine those of the elections,
since the former is only part of the latter. If at all, the outcome of one
can only be indicative of the other.
The Comelec's concern with the possible noncommunicative effect
of exit polls disorder and confusion in the voting centers does
not justify a total ban on them. Undoubtedly, the assailed Comelec
Resolution is too broad, since its application is without quali cation
as to whether the polling is disruptive or not. 44 Concededly, the
Omnibus Election Code prohibits disruptive behavior around the
voting centers. 45 There is no showing, however, that exit polls or the
means to interview voters cause chaos in voting centers. Neither has
any evidence been presented proving that the presence of exit poll
reporters near an election precinct tends to create disorder or confuse
the voters.
Moreover, the prohibition incidentally prevents the collection of exit
poll data and their use for any purpose. The valuable information and
ideas that could be derived from them, based on the voters' answers
to the survey questions will forever remain unknown and
unexplored. Unless the ban is restrained, candidates, researchers,
social scientists and the electorate in general would be deprived of
studies on the impact of current events and of election-day and other
factors on voters' choices.
I n Daily Herald Co. v. Munro, 46 the US Supreme Court held that a
statute, one of the purposes of which was to prevent the broadcasting
of early returns, was unconstitutional because such purpose was
impermissible, and the statute was neither narrowly tailored to
advance a state interest nor the least restrictive alternative.
Furthermore, the general interest of the State in insulating voters
from outside in uences is insuf cient to justify speech regulation. Just
as curtailing election-day broadcasts and newspaper editorials for the
reason that they might indirectly affect the voters' choices is
impermissible, so is regulating speech via an exit poll restriction. 47
The absolute ban imposed by the Comelec cannot, therefore, be justi
ed. It does not leave open any alternative channel of communication
to gather the type of information obtained through exit polling. On
the other hand, there are other valid and reasonable ways and means
to achieve the Comelec end of avoiding or minimizing disorder and
confusion that may be brought about by exit surveys.
For instance, a speci c limited area for conducting exit polls may be
designated. Only professional survey groups may be allowed to
conduct the same. Pollsters may be kept at a reasonable distance
from the voting center. They may be required to explain to voters
that the latter may refuse to be interviewed, and that the interview is
not part of the of cial balloting process. The pollsters may further be
required to wear distinctive clothing that would show they are not
election of cials. 48 Additionally, they may be required to undertake
an information campaign on the nature of the exercise and the results
to be obtained therefrom. These measures, together with a general
prohibition of disruptive
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behavior, could ensure a clean, safe and orderly election. prcd

For its part, Petitioner ABS-CBN explains its survey methodology as


follows: (1) communities are randomly selected in each province; (2)
residences to be polled in such communities are also chosen at
random; (3) only individuals who have already voted, as shown by
the indelible ink on their ngers, are interviewed; (4) the interviewers
use no cameras of any sort; (5) the poll results are released to the
public only on the day after the elections. 49 These precautions,
together with the possible measures earlier stated, may be undertaken
to abate the Comelec's fear, without consequently and unjusti ably
stilling the people's voice.
With the foregoing premises, we conclude that the interest of the
state in reducing disruption is outweighed by the drastic abridgment
of the constitutionally guaranteed rights of the media and the
electorate. Quite the contrary, instead of disrupting elections, exit
polls properly conducted and publicized can be vital tools for
the holding of honest, orderly, peaceful and credible elections; and
for the elimination of election- xing, fraud and other electoral ills.
Violation of Ballot Secrecy
The contention of public respondent that exit polls indirectly
transgress the sanctity and the secrecy of the ballot is off-tangent to
the real issue. Petitioner does not seek access to the ballots cast by
the voters. The ballot system of voting is not at issue here.
The reason behind the principle of ballot secrecy is to avoid vote
buying through voter identi cation. Thus, voters are prohibited from
exhibiting the contents of their of cial ballots to other persons, from
making copies thereof, or from putting distinguishing marks thereon
so as to be identi ed. Also proscribed is nding out the contents of the
ballots cast by particular voters or disclosing those of disabled or
illiterate voters who have been assisted. Clearly, what is forbidden is
the association of voters with their respective votes, for the purpose
of assuring that the votes have been cast in accordance with the
instructions of a third party. This result cannot, however, be achieved
merely through the voters' verbal and confidential disclosure to a
pollster of whom they have voted for.
In exit polls, the contents of the of cial ballot are not actually
exposed. Furthermore, the revelation of whom an elector has voted
for is not compulsory, but voluntary. Voters may also choose not to
reveal their identities. Indeed, narrowly tailored countermeasures
may be prescribed by the Comelec, so as to minimize or suppress
incidental problems in the conduct of exit polls, without
transgressing the fundamental rights of our people. cdrep

WHEREFORE, the Petition is GRANTED, and the Temporary


Restraining Order issued by the Court on May 9, 1998 is made
PERMANENT. Assailed Minute Resolution No. 98-1419 issued by
the Comelec en banc on April 21, 1998 is hereby NULLIFIED and
SET ASIDE. No costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Quisumbing, Purisima, Buena,
Gonzaga-Reyes, Ynares- Santiago, and De Leon, Jr., JJ., concur.
Melo and Mendoza, JJ., join separate opinion of J. Vitug. Vitug, J.,
see separate opinion.
Kapunan, J., see dissenting opinion.

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Pardo, J ., took no part.


VITUG, J .:

Separate Opinions
The instant petition, now technically moot, presents issues so signi
cant that a slight change of circumstances can have a decisive effect
on, and possibly spell a difference in, the nal outcome of the case. I
am not inclined to take the case in an academic fashion and pass
upon the views expressed by either party in preemptive judgment.
While I understand what the ponencia is saying quite laudably, I also
appreciate, upon the other hand, the concern of the Commission on
Elections, i.e., that the conduct of exit polls can have some adverse
effects on the need to preserve the sanctity of the ballot. The
Commission performs an indispensable task of ensuring free, honest,
and orderly elections and of guarding against any frustration of the
true will of the people. Expectedly, it utilizes all means available
within its power and authority to prevent the electoral process from
being manipulated and rendered an absurdity. Like my colleagues, I
greatly prize the freedom of expression but, so also, I cherish no less
the right of the people to express their will by means of the ballot. In
any case, I must accept the reality that the right to information and
free speech is not illimitable and immune from the valid exercise of
an ever demanding and pervasive police power. Whether any kind of
restraint should be upheld or declared invalid in the proper balancing
of interest is one that must be resolved at any given moment, not on
perceived circumstances, but on prevailing facts. LibLex

Neither of the advocations proffered by the parties in this instance, I


believe, should be foreclosed by the Court at this time.
I vote, therefore, to dismiss the petition on the foregoing thesis.
KAPUNAN, J ., dissenting:
I share the view of Justice Jose C. Vitug in his Separate Opinion that
the case is technically moot. Since the Comelec has not declared exit
polls to be illegal and neither did the petitioner present its
methodology or system of conducting the exit polls to the poll body,
the nulli cation of the Comelec's questioned resolution is bereft of
empirical basis. The decision of this Court constitutes a mere
academic exercise in view of the premature nature of the issues and
the lack of "concreteness" of the controversy. I wish, however, to
express my thoughts on a few material points.
The majority opinion cites the general rule that any restrictions to
freedom of expression would be burdened with a presumption of
invalidity and should be greeted with "furrowed brows." 1 While this
has been the traditional approach, this rule does not apply where, as
in this case, the Comelec exercised its Constitutional functions of
securing the secrecy and sanctity of the ballots and ensuring the
integrity of the elections. Thus, Mr. Justice Feliciano in National
Press (NPC) v. Comelec 2 wrote:
The technical effect of Article IX (C) (4) of the Constitution may be seen
to be that no presumption of invalidity arises in respect of supervisory or
regulatory authority on the part of the COMELEC for the purpose of
securing equal opportunity among candidates for political of ce, although
such supervision or
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regulation may result in some limitation of the right of free speech and free
press. For supervision or regulation of the operations of media enterprises
is scarcely conceivable without such accompanying limitation. Thus, the
applicable rule is the general, time honored one that a statute is
presumed to be constitutional and that the party asserting its
unconstitutionality must discharge the burden of clearly and convincingly
proving that assertion. 3
The NPC decision holds that if the right to free speech collides with
a norm of constitutional stature, 4 the rule on heavy presumption of
invalidity does not apply.
Our Constitution mandates the Comelec to enforce and administer
laws and regulations relative to the conduct of elections and to secure
the secrecy and sanctity of the ballots to ensure orderly, honest,
credible and peaceful elections. 5 This Constitutional provision
effectively displaces the general presumption of invalidity in favor of
the presumption that Comelec acted in the exercise of its
constitutionally mandated powers. If no presumption of invalidity
arises, I see no occasion for the application of the "clear and present
danger test." As this Court, through Mr. Justice Mendoza, succinctly
observed: LibLex

. . . the clear-and-present danger test is not, however, a sovereign remedy


for all free speech problems. As has been pointed out by a thoughtful
student of constitutional law, it was originally formulated for the criminal
law and only later appropriated for free speech cases. For the criminal law
is necessarily concerned with the line at which innocent preparation ends
and guilty conspiracy or attempt begins. Clearly, it is inappropriate as a
test for determining the constitutional validity of law which, like 11(b) of
R.A. No. 6646, are not concerned with the content of political ads but only
with their incidents. To apply the clear-and- present danger test to such
regulatory measures would be like using a sledgehammer to drive a nail
when a regular hammer is all that is needed. 6
On the matter of methodology in conducting polls, petitioner gave
assurance that the exit poll results will only be made public a day
after the elections, in order to allay fears of "trending," "bandwagon-
effect" or disruption. This offers little comfort considering the state
of our country's electoral system. Unlike in other countries where
voting and counting are computerized, our elections are
characterized by snail-paced counting. It is not infrequent that
postponement, failure or annulment of elections occur in some areas
designated as election hot spots. 7 Such being the case, exit poll
results made public after the day of voting in the regular elections
but before the conduct of special elections in these areas may
potentially pose the danger of "trending," "bandwagon-effect" and
disruption of elections.
In view of the foregoing discussion, I believe the Comelec
committed no abuse of discretion in issuing the assailed temporary
restraining order stopping petitioner from conducting exit polls. I,
therefore vote to DENY the petition.
Footnotes

1. Rollo, p. 14.

2. Ibid. Words in parentheses in the original; those in brackets supplied.

3. Petition, p. 4.

4. Rollo, p. 78 et seq.

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5. This case was deemed submitted for resolution on January 19, 1999,
upon receipt by the Court of the Memorandum for the Respondent.

6. See Gamboa Jr. v. Aguirre Jr., G.R. No. 134213, July 20, 1999.

7. 134 SCRA 438, 463, February 18, 1985; per Gutierrez Jr., J.

8. Solis v. NLRC, 263 SCRA 629, October 28, 1996.

9. Zurbano Sr. v. NLRC, 228 SCRA 556, December 17, 1993.

10. Alfante v. NLRC, 283 SCRA 340, December 15, 1997; Saldana v.
Court of Appeals, 190 SCRA 386, October 11, 1990.

11. Republic v. Sandiganbayan, 269 SCRA 316, March 7, 1997; Gelmart


Industries Phils. Inc. v. NLRC, 176 SCRA 295, August 10,
1989;Philippine Air Lines Employees Association v. Philippine Air
Lines, Inc., 111 SCRA 215, January 30, 1982.

12. "Sec. 2. The Congress shall provide a system for securing the secrecy
and sanctity of the ballot . . . ."

13. Citing 195, 196, 207 and 261 (z-5, 7 & 16).

14. Salonga v. Cruz Pao, supra, pp. 458-459. See also Gonzales v.
Comelec, 27 SCRA 835, 849, 856-857, April 18, 1969;Philippine
Blooming Mills Employees Organization v. Philippine Blooming
Mills Co., Inc., 51 SCRA 191, June 5, 1973; National Press Club v.
Comelec, 207 SCRA 1, 9, March 5, 1992; Blo Umpar Adiong v.
Comelec, 207 SCRA 712, 715, March 31, 1992.

15. 4, Art. III of the Constitution.

16. Supra, p. 856, per Fernando, J. (later CJ ).

17. Ibid., p. 857; citing Emerson, Toward a General Theory of the First
Amendment (1966).

18. Ibid., citing New York Times Co. v. Sullivan, 376 US 254, 270
(1964).

19. US v. Schwimmer, 279 US 644 (1929).

20. Ibid., p. 858.

21. Badoy Jr. v. Comelec, 35 SCRA 285, 289, October 17, 1970.

22. 102 Phil. 152, October 18, 1957, per Bautista-Angelo, J.

23. Ibid., p. 161.

24. Ibid., citing Gitlow v. New York, 268 US 652, 69 L ed. 1138 (1925).

25. 80 Phil. 71 (1948).

26. 101 Phil. 386 (1957).


27. 28 SCRA 351, May 26, 1969.

28. 31 SCRA 731, February 26, 1970.

29. 35 SCRA 28, September 11, 1970.

30. Supra.

31. 259 SCRA 529, July 26, 1996.

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32. 33. 34. 35.


36.
37. 38. 39. 40.
41. 42. 43. 44. 45. 46. 47.
Cabansag v. Fernandez, supra; citing Schenck v. US, 249 US 47 (1919).
Gonzales v. Comelec, supra, pp. 860-861.
Adiong v. Comelec, supra.
Iglesia ni Cristo v. Court of Appeals, supra; Gonzales v. Katigbak, 137
SCRA 717, July 22, 1985.
Iglesia ni Cristo v. Court of Appeals, supra, pp. 545-546; citing Near v.
Minnesota, 283 US 697 (1931); Bantam Books, Inc. v. Sullivan, 372 US
58 (1963); and New York Times Co. v. Sullivan, supra.
Blo Umpar Adiong v. Comelec, supra. See also National Press Club v.
Comelec, supra. Adiong v. Comelec, supra.
Gonzales v. Comelec, supra, p. 871, citing Shelton v. Tucker, 364 US 479,
488.
Mutuc v. Comelec, 36 SCRA 228, 233-34, November 26, 1970; per
Fernando, J . (later CJ).
Ibid., p. 236.
Adiong v. Comelec, supra.
Exit Polls and the First Amendment, 98 Harvard Law Review 1927 (1985).
See CBS v. Smith, 681 F. Supp. 794 (SD Fla. 1988).
See 261 (d, e, f, k & z-11). See also Arts. 148, 149 & 153 of the Revised
Penal Code. 838 F 2d 380 (9th Cir. 1988).
Ibid., citing Mills v. Alabama, 384 US 214, 218-20, 86 S Ct. 1434,
1436-37, 16 L Ed. 2d 484 (1966); Vanasco v. Schwartz, 401 F Supp. 87,
100 (SDNY 1975), aff'd mem., 423 US 1041, 96 S Ct. 763, 46 L Ed. 2d
630 (1976).
Exit Polls and the First Amendment, supra, p. 1935. Petitioner's
Memorandum, p. 15.
48.
49.
KAPUNAN, J., dissenting:
1. 2. 3.
4.
5. 6.
Iglesia ni Cristo vs. MTRCB, 259 SCRA 529 (1996). 207 SCRA 1 (1992).
Ibid., citing as examples: Abbas vs. Commission on Elections, 179 SCRA
287 (1989); People vs. Dacuycuy, 173 SCRA 90 (1989); Heirs of Ordera
vs. Reyes, 125 SCRA 380 (1983) (sic); Peralta vs. Commission on
Elections, 82 SCRA 30 (1978); Salas vs. Jarencio, 46 SCRA 734 (1972).
The norm embodied in Article IX (C) (4) of the Constitution in the NPC
case aims to equalize opportunity, time and space, and the right to reply in
the use of media for campaign purposes.
CONST. Art V, Sec. 2; Art IX (C), Sec. 2 (1). Osmea vs. Comelec, 288
SCRA 447 (1998).
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7. BATAS PAMBANSA BLG. 881 (as amended), Secs. 5 & 6 and R.A.
No. 7166, Sec. 4. These situations are replete with cases; see for e.g.
Hassan vs. Comelec, 264 SCRA 125 (1996); Sanchez vs. Comelec, 145
SCRA 454 (1982); Mangudadatu vs. Comelec, G.R. No. 86053, May 4,
1989; Barabu vs. Comelec, G.R. No. 78820, May 17, 1988.
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EN BANC
[G.R. No. 103956. March 31, 1992.]
BLO UMPAR ADIONG, petitioner, vs. COMMISSION ON
ELECTIONS, respondent.
Romulo R. Macalintal for petitioner.
SYLLABUS
1. POLITICAL LAW; ELECTIONS; PROHIBITION ON POSTING
OF DECALS AND STICKERS ON MOBILE PLACES (SECTION
15 (a) AND SECTION 21 (f) OF COMELEC RESOLUTION NO.
2347); NULL AND VOID. The COMELEC's prohibition on
posting of decals and stickers on "mobile" places whether public or
private except in designated areas provided for by the COMELEC
itself is null and void on constitutional grounds.
2. ID.; ID.; ID.; INFRINGEMENT OF FREEDOM OF SPEECH
AND EXPRESSION. COMELEC Resolution No. 2347 unduly
infringes on the citizen's fundamental right of free speech enshrined
in the Constitution (Sec. 4, Article III). There is no public interest
substantial enough to warrant the kind of restriction involved in this
case. There are various concepts surrounding the freedom of speech
clause which we have adopted as part and parcel of our own Bill of
Rights provision on this basic freedom. All of the protections
expressed in the Bill of Rights are important but we have accorded to
free speech the status of a preferred freedom. (Thomas v. Collins,
323 US 516, 89 L. Ed. 430 [1945]; Mutucv. Commission on
Elections, 36 SCRA 228 [1980]). This qualitative signi cance of
freedom of expression arises from the fact that it is the matrix, the
indispensable condition of nearly every other freedom. (Palko v.
Connecticut, 302 U.S. 319 [1937]; Salonga v. Pao, 134 SCRA 438
[1985]). It is dif cult to imagine how the other provisions of the Bill
of Rights and the right to free elections may be guaranteed if the
freedom to speak and to convince or persuade is denied and taken
away. 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. (Mutuc v. Commission on Elections,
supra)
3. ID.; ID.; ID.; SUBSTANTIAL GOVERNMENT INTEREST AND
PUBLIC INTEREST, NOT THREATENED; CLEAR AND
PRESENT DANGER RULE, NOT PRESENT. The regulation in
the present case is of a different category. The promotion of a
substantial Government interest is not clearly shown. "A government
regulation is suf ciently justi ed if it is within the constitutional
power of the Government, if it furthers an important or substantial
governmental interest; if the governmental interest is unrelated to the
suppression of free expression; and if the incidental restriction on
alleged First Amendment freedom is no greater than is essential to
the furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S. Ct
1673." (City council v. Taxpayers For Vincent, 466 US 789, 80 L Ed
2d 772, 104 S. Ct 2118 [1984]) The posting of decals and stickers in
mobile places like cars and other moving vehicles does not endanger
any substantial government interest. There is no clear public interest
threatened by such activity so as to justify the curtailment of the
cherished
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citizen's right of free speech and expression. Under the clear and
present danger rule not only must the danger be patently clear and
pressingly present but the evil sought to be avoided must be so
substantive as to justify a clamp over one's mouth or a writing
instrument to be stilled: "The case confronts us again with the duty
our system places on the Court to say where the individual's freedom
ends and the State's power begins. Choice on that border, now as
always delicate, is perhaps more so where the usual presumption
supporting legislation is balanced by the preferred place given in our
scheme to the great, the indispensable democratic freedoms secured
by the rst Amendment ... That priority gives these liberties a sanctity
and a sanction not permitting dubious intrusions and it is the
character of the right, not of the limitation, which determines what
standard governs the choice .... For these reasons any attempt to
restrict those liberties must be justi ed by clear public interest,
threatened not doubtfully or remotely but by clear and present
danger. The rational connection between the remedy provided and
the evil to be curbed, which in other context might support
legislation against attack on due process grounds, will not suf ce.
These rights rest on rmer foundation. Accordingly, whatever
occasion would restrain orderly discussion and persuasion, at
appropriate time and place, must have clear support in public danger,
actual or impending. Only the greatest abuses, endangering
permanent interests, give occasion for permissible limitation.
(Thomas V. Collins, 323 US 516 [1945]." Signi cantly, the freedom
of expression curtailed by the questioned prohibition is not so much
that of the candidate or the political party. The regulation strikes at
the freedom of an individual to express his preference and, by
displaying it on his car, to convince others to agree with him. A
sticker may be furnished by a candidate but once the car owner
agrees to have it placed on his private vehicle, the expression
becomes a statement by the owner, primarily his own and not of
anybody else. If, in the National Press Club case, the Court was
careful to rule out restrictions on reporting by newspaper or radio
and television stations and commentators or columnists as long as
these are not covertly paid-for advertisements or purchased opinions
with less reason can we sanction the prohibition against a sincere
manifestation of support and a proclamation of belief by an
individual person who pastes a sticker or decal on his private
property.
4. ID.; ID.; DEBATE ON PUBLIC ISSUES SHOULD BE OPEN.
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 of cials. (New York Times Co. v. Sullivan
376 U.S. 254, 11 L. Ed. 2d 686 [1964]; cited in the concurring
opinion of then Chief Justice Enrique Fernando in Babst v. National
Intelligence Board, 132 SCRA 316 [1984]. 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.
5. ID.; ID.; FREEDOM OF SPEECH AND INFORMATION
PREVAILS. When faced with border line situations where
freedom to speak by a candidate or party and freedom to know on the
part of the electorate are invoked against actions intended for
maintaining clean and free elections, the police, local of cials and
COMELEC should lean in favor of freedom. For in the ultimate
analysis, the freedom of the citizen and the State's power to regulate
are not antagonistic. There can be no free and honest elections if in
the efforts to maintain them, the freedom to speak and the right to
know are unduly curtailed.
6. ID.; ID.; REGULATION OF ELECTION ACTIVITY, LIMITED;
TEST OF VALIDITY. The regulation of election activity has its
limits. We examine the limits of regulation and not the limits of free
speech. The carefully worded opinion of the Court, through Mr.
Justice Feliciano, shows that regulation of election campaign activity
may not pass the test of
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validity if it is too general in its terms or not limited in time and


scope in its application, if it restricts one's expression of belief in a
candidate or one's opinion of his or her quali cations, if it cuts off the
ow of media reporting, and if the regulatory measure bears no clear
and reasonable nexus with the constitutionally sanctioned objective.
7. ID.; ID.; SECTION 15 (a) AND SECTION 21 (f) COMELEC
RESOLUTION NO. 2347 VOID FOR OVERBREADTH. Second
the questioned prohibition premised on the statute and as couched
in the resolution is void for overbreadth. A statute is considered void
for overbreadth when "it offends the constitutional principle that a
governmental purpose to control or prevent activities constitutionally
subject to state regulations may not be achieved by means which
sweep unnecessarily broadly and thereby invade the area of protected
freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]). "In a series
of decisions this Court has held that, even though the governmental
purpose be legitimate and substantial, that purpose cannot be pursued
by means that broadly sti e fundamental personal liberties when the
end can be more narrowly achieved. The breadth of legislative
abridgment must be viewed in the light of less drastic means for
achieving the same basic purpose.
8. ID.; ID.; ID.; RESTRICTION PROVIDED THEREIN
VIOLATES DUE PROCESS CLAUSE. The resolution prohibits
the posting of decals and stickers not more than eight and one- half
(8-12) inches in width and fourteen (14) inches in length in any
place, including mobile places whether public or private except in
areas designated by the COMELEC. Verily, the restriction as to
where the decals and stickers should be posted is so broad that it
encompasses even the citizen's private property, which in this case is
a privately-owned vehicle. In consequence of this prohibition,
another cardinal rule prescribed by the Constitution would be
violated. Section 1, Article III of the Bill of Rights provides "that no
person shall be deprived of his property without due process of law."
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.
Holde v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780. 790, 18 Sup. CXt.
Rep. 383. Property consists of the free use, enjoyment, and disposal
of a person's acquisitions without control or diminution save by the
law of the land. 1 Cooley's Bl. Com. 127." (Buchanan v. Warley 245
US 60 [1917])
9. ID.; ID.; ID.; PROHIBITION DEPRIVES CITIZEN OF RIGHT
TO FREE SPEECH AND INFORMATION. "We have to consider
the fact that in the posting of decals and stickers on cars and other
moving vehicles, the candidate needs the consent of the owner of the
vehicle. In such a case, the prohibition would not only deprive the
owner who consents to such posting of the decals and stickers the
use of his property but more important, in the process, it would
deprive the citizen of his right to free speech and information.
Freedom to distribute information to every citizen wherever he
desires to receive it is so clearly vital to the preservation of a free
society that, putting aside reasonable police and health regulations of
time and manner of distribution, it must be fully preserved. The
danger of distribution can so easily be controlled by traditional legal
methods leaving to each householder the full right to decide whether
he will receive strangers as visitors, that stringent prohibition can
serve no purpose but that forbidden by the constitution, the naked
restriction of the dissemination of ideas." (Martin v. City of strutters,
Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943]) The preference of the
citizen becomes crucial in this kind of
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election propaganda not the nancial resources of the candidate.


Whether the candidate is rich and, therefore, can afford to dole-out
more decals and stickers or poor and without the means to spread out
the same number of decals and stickers is not as important as the
right of the owner to freely express his choice and exercise his right
of free speech. The owner can even prepare his own decals or
stickers for posting on his personal property. To strike down this
right and enjoin it is impermissible encroachment of his liberties.
10. ID.; ID.; RA 6646, SECTION 11; RIGHT TO PROPERTY
JOINED BY LIBERTY INTEREST; REGULATION, NOT
JUSTIFIED. 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 justi cation 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 in the
common poster areas sanctioned by COMELEC. This means that a
private person cannot post his own crudely prepared personal poster
on his own front door or 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 of cers, armed with a copy of the
statute or regulation, may do. The provisions allowing regulation are
so loosely worded that they inclose the posting of decals or stickers
in the privacy of one's living room or bedroom. This is delegation
running riot. As stated by Justice Cardozo in his concurrence in
Panama Refining Co. v. Ryan (293 U.S. 388; 79 L. Ed. 46 [1935],
"The delegated power is uncon ned and vagrant . . . This is
delegation running riot. No such plenitude of power is susceptible of
transfer."
11. ID.; ID.; ARTICLE 11 SECTION 26 AND ARTICLE XII
SECTION 1 IN RELATION TO ARTICLE IX (c) SECTION 4 OF
THE CONSTITUTION; NOT IMPAIRED BY POSTING OF
DECALS AND STICKERS ON PRIVATE VEHICLES. The
constitutional objective to give a rich candidate and a poor candidate
equal opportunity to inform the electorate as regards their
candidacies, mandated by Article II Section 26 and Article XIII
Section 1 in relation to Article IX (c) Section 4 of the Constitution, is
not impaired by posting decals and stickers on cars and other private
vehicles. Compared to the paramount interest of the State in
guaranteeing freedom of expression, any nancial considerations
behind the regulation are of marginal signi cance. Under Section 26
Article II of the Constitution, "The State shall guarantee equal access
to opportunities for public service, . . . while under Section 1, Article
XIII thereof "The Congress shall give highest priority to the
enactment of measures that protect and enhance the right of all the
people to human dignity, reduce social, economic, and political
inequalities, and remove cultural inequities by equitably diffusing
wealth and political power nor the common good."
12. ID.; ID.; SECTION 15 (a) AND SECTION 21 (f) OF
COMELEC RESOLUTION NO. 2347; PROHIBITION BECOMES
CENSORSHIP, NOT JUSTIFIED BY CONSTITUTION. In sum,
the prohibition on posting of decals and stickers on "mobile" places
whether public or private except in the authorized areas designated
by the COMELEC becomes censorship which cannot be justi ed by
the Constitution: ". . . The concept of the Constitution as the
fundamental law, setting forth the criterion for the validity of any
public act whether proceeding from the highest of cial or the lowest
functionary, is a postulate of our system of government. That is to
manifest fealty to the rule of law, with priority accorded to that
which occupies the topmost rung in the legal hierarchy. The three
departments of government in the discharge of the functions with
which it is entrusted have no choice but to yield obedience to its
commands. Whatever limits it imposes must be observed. Congress
in the enactment of statutes must ever be on guard lest the
restrictions on its
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authority, either substantive or formal, be transcended. The


Presidency in the execution of the laws cannot ignore or disregard
what it ordains. In its task of applying the law to the facts as found in
deciding cases, the judiciary is decreed by the fundamental law. Even
its power of judicial review to pass upon the validity of the acts of
the coordinate branches in the course of adjudication is a logical
corollary of this basic principle that the Constitution is paramount. It
overrides any governmental measure that fails to live up to its
mandates. Thereby there is a recognition of its being the supreme
law." (Mutuc v. Commission on Elections, supra)
13. ID.; ID.; FREEDOM OF SPEECH AND INFORMATION,
CALLS FOR MORE LIBERAL INTERPRETATION. The
unusual circumstances of this year's national and local elections call
for a more liberal interpretation of the freedom to speak and the right
to know. It is not alone the widest possible dissemination of
information on platforms and programs which concern us. Nor are
we limiting ourselves to protecting the unfettered interchange of
ideas to bring about political change. (Cf. New York Times v.
Sullivan, supra) The big number of candidates and elective positions
involved has resulted in the peculiar situation where almost all voters
cannot name half or even two-thirds of the candidates running for
Senator. The public does not know who are aspiring to be elected to
public of ce. There are many candidates whose names alone evoke
quali cations, platforms, programs and ideologies which the voter
may accept or reject. When a person attaches a sticker with such
candidate's name on his car bumper, he is expressing more than the
name; he is espousing ideas.
DECISION
GUTIERREZ, JR., J : p

The speci c issue in this petition is whether or not the Commission


on Elections
(COMELEC) may prohibit the posting of decals and stickers on
"mobile" places, public or
private, and limit their location or publication to the authorized
posting areas that it xes.
LLphil

On January 13, 1992, the COMELEC promulgated Resolution No.


2347 pursuant to its powers granted by the Constitution, the
Omnibus Election Code, Republic Acts Nos. 6646 and 7166 and
other election laws.
Section 15(a) of the resolution provides:
"SEC. 15. Lawful Election Propaganda. The following are lawful
election propaganda:
(a) Pamphlets, lea ets, cards, decals, stickers, handwritten or printed letters,
or other written or printed materials not more than eight and one-half
(8-1/2) inches in width and fourteen (14) inches in length Provided, That
decals and stickers may be posted only in any of the authorized posting
areas provided in paragraph (f) of Section 21 hereof."
Section 21 (f) of the same resolution provides:
"SEC. 21(f) Prohibited forms of election propaganda. It is unlawful:
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xxx xxx xxx


(f) To draw, paint, inscribe, post, display or publicly exhibit any election
propaganda in any place, whether public or private, mobile or stationary,
except in the COMELEC common posted areas and/or billboards, at the
campaign headquarters of the candidate or political party, organization or
coalition, or at the candidate's own residential house or one of his
residential houses, if he has more than one: Provided, that such posters or
election propaganda shall not exceed two (2) feet by three (3) feet in
size." (Emphasis supplied)
xxx xxx xxx
The statutory provisions sought to be enforced by COMELEC are
Section 82 of the Omnibus Election Code on lawful election
propaganda which provides:
"Lawful election propaganda. Lawful election propaganda shall
include:
(a) Pamphlets, lea ets, cards, decals, stickers or other written or printed
materials of a size not more than eight and one-half inches in width and
fourteen inches in length;
(b) Handwritten or printed letters urging voters to vote for or against any
particular candidate;
(c) Cloth, paper or cardboard posters, whether framed or posted, with an
area not exceeding two feet by three feet, except that, at the site and on the
occasion of a public meeting or rally, or in announcing the holding of said
meeting or rally, streamers not exceeding three feet by eight feet in size,
shall be allowed: Provided, That said streamers may not be displayed
except one week before the date of the meeting or rally and that it shall be
removed within seventy-two hours after said meeting or rally; or
(d) All other forms of election propaganda not prohibited by this Code as
the Commission may authorize after due notice to all interested parties and
hearing where all the interested parties were given an equal opportunity to
be heard: Provided, That the Commission's authorization shall be
published in two newspapers of general circulation throughout the nation
for at least twice within one week after the authorization has been granted.
(Section 37, 1978 EC).
and Section 11(a) of Republic Act No. 6646 which provides:
"Prohibited Forms of Election Propaganda. In addition to the forms of
election propaganda prohibited under Section 85 of Batas Pambansa Blg.
881, it shall be unlawful: (a) to draw, paint, inscribe, write, post, display or
publicly exhibit any election propaganda in any place, whether private, or
public, except in the common poster areas and/or billboards provided in
the immediately preceding section, at the candidate's own residence, or at
the campaign headquarters of the candidate or political party: Provided,
That such posters or election propaganda shall in no case exceed two (2)
feet by three (3) feet in area: Provided Further, That at the site of and on
the occasion of a public meeting or rally, streamers, not more than two (2)
and not exceeding three (3) feet by eight (8) feet each may be displayed ve
(5) days before the date of the meeting or rally, and shall be removed
within twenty-four (24) hours after said meeting or rally; . . . (Emphasis
supplied)
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Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11,


1992 elections now assails the COMELEC's Resolution insofar as it
prohibits the posting of decals and stickers in "mobile" places like
cars and other moving vehicles. According to him such prohibition is
violative of Section 82 of the Omnibus Election Code and Section
11(a) of Republic Act No. 6646. In addition, the petitioner believes
that with the ban on radio, television and print political
advertisements, he, being a neophyte in the eld of politics stands to
suffer grave and irreparable injury with this prohibition. The posting
of decals and stickers on cars and other moving vehicles would be
his last medium to inform the electorate that he is a senatorial
candidate in the May 11, 1992 elections. Finally, the petitioner states
that as of February 22, 1992 (the date of the petition) he has not
received any notice from any of the Election Registrars in the entire
country as to the location of the supposed "Comelec Poster Areas."
The petition is impressed with merit. The COMELEC's prohibition
on posting of decals and stickers on "mobile" places whether public
or private except in designated areas provided for by the COMELEC
itself is null and void on constitutional grounds.
First the prohibition unduly infringes on the citizen's fundamental
right of free speech enshrined in the Constitution (Sec. 4, Article III)
There is no public interest substantial enough to warrant the kind of
restriction involved in this case.
There are various concepts surrounding the freedom of speech clause
which we have adopted as part and parcel of our own Bill of Rights
provision on this basic freedom.
All of the protections expressed in the Bill of Rights are important
but we have accorded to free speech the status of a preferred
freedom. (Thomas v. Collins, 323 US 516, 89 L. Ed. 430 [1945];
Mutuc v. Commission on Elections, 36 SCRA 228 [1970]).
This qualitative signi cance of freedom of expression arises from the
fact that it is the matrix, the indispensable condition of nearly every
other freedom. (Palko v. Connecticut 302 U.S. 319 [1937]; Salonga
v. Pao, 134 SCRA 438 [1985]) It is dif cult to imagine how the
other provisions of the Bill of Rights and the right to free elections
may be guaranteed if the freedom to speak and to convince or
persuade is denied and taken away.
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 of cials. (New York Times Co. v. Sullivan
376 U.S. 254, 11 L. Ed. 2d 686 [1964]; cited in the concurring
opinion of then Chief Justice Enrique Fernando in Babst v. National
Intelligence Board, 132 SCRA 316 [1984]). 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. (Mutuc v. Commission on Elections, supra)
The determination of the limits of the Government's power to
regulate the exercise by a citizen of his basic freedoms in order to
promote fundamental public interests or policy objectives is always a
dif cult and delicate task. The so-called balancing of interests
individual freedom on one hand and substantial public interests on
the other is made even more dif cult in election campaign cases
because the Constitution also gives speci c authority to the
Commission on Elections to supervise the conduct of free, honest,
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and orderly elections.


We recognize the fact that under the Constitution, the COMELEC
during the election period is granted regulatory powers vis-a-vis the
conduct and manner of elections, to wit:
"SEC. 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 therefore, for public information campaigns and forms among
candidates in connection with the object of holding free, orderly, honest,
peaceful and credible elections " (Article IX (c) section 4)
The variety of opinions expressed by the members of this Court in
the recent case of National Press Club v. Commission on Elections
(G.R. No. 102653, March 5, 1991) and its companion cases
underscores how dif cult it is to draw a dividing line between
permissible regulation of election campaign activities and
indefensible repression committed in the name of free and honest
elections. In the National Press Club case, the Court had occasion to
reiterate the preferred status of freedom of expression even as it
validated COMELEC regulation of campaigns through political
advertisements. The gray area is rather wide and we have to go on a
case to case basis. LLpr

There is another problem involved. Considering that the period of


legitimate campaign activity is fairly limited and, in the opinion of
some, too short, it becomes obvious that unduly restrictive
regulations may prove unfair to affected parties and the electorate.
For persons who have to resort to judicial action to strike down
requirements which they deem inequitable or oppressive, a court
case may prove to be a hollow remedy. The judicial process, by its
very nature, requires time for rebuttal, analysis and re ection. We
cannot act instantly on knee-jerk impulse. By the time we revoke an
unallowably restrictive regulation or ruling, time which is of the
essence to a candidate may have lapsed and irredeemable
opportunities may have been lost.
When faced with border line situations where freedom to speak by a
candidate or party
and freedom to know on the part of the electorate are invoked against
actions intended for
maintaining clean and free elections, the police, local of cials and
COMELEC should lean in
favor of freedom. For in the ultimate analysis, the freedom of the
citizen and the State's
power to regulate are not antagonistic. There can be no free and
honest elections if in the
efforts to maintain them, the freedom to speak and the right to know
are unduly curtailed.
LLphil

There were a variety of opinions expressed in the National Press


Club v. Commission on Elections (supra) case but all of us were
unanimous that regulation of election activity has its limits. We
examine the limits of regulation and not the limits of free speech.
The carefully worded opinion of the Court, through Mr. Justice
Feliciano, shows that regulation of election campaign activity may
not pass the test of validity if it is too general in its terms or not
limited in time and scope in its application, if it restricts one's
expression of belief in a candidate or one's opinion of his or her quali
cations, if it cuts off the ow of media reporting, and if the regulatory
measure bears no clear and reasonable nexus with the
constitutionally sanctioned objective.
Even as the Court sustained the regulation of political
advertisements, with some rather
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strong dissents, in National Press Club, we nd the regulation in the


present case of a different category. The promotion of a substantial
Government interest is not clearly shown.
"A government regulation is suf ciently justi ed if it is within the
constitutional power of the Government, if it furthers an important or
substantial governmental interest; if the governmental interest is unrelated
to the suppression of free expression; and if the incidental restriction on
alleged First Amendment freedoms is no greater than is essential to the
furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S Ct
1673." (City Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d
772, 104 S Ct 2118 [1984])
The posting of decals and stickers in mobile places like cars and
other moving vehicles
does not endanger any substantial government interest. There is no
clear public interest
threatened by such activity so as to justify the curtailment of the
cherished citizen's right
of free speech and expression. Under the clear and present danger
rule not only must the
danger be patently clear and pressingly present but the evil sought to
be avoided must be
so substantive as to justify a clamp over one's mouth or a writing
instrument to be stilled:
LLjur

"The case confronts us again with the duty our system places on the Court
to say where the individual's freedom ends and the State's power begins.
Choice on that border, now as always delicate, is perhaps more so where
the usual presumption supporting legislation is balanced by the preferred
place given in our scheme to the great, the indispensable democratic
freedoms secured by the First Amendment . . . That priority gives these
liberties a sanctity and a sanction not permitting dubious intrusions and it
is the character of the right, not of the limitation, which determines what
standard governs the choice . . .
For these reasons any attempt to restrict those liberties must be justi ed by
clear public interest, threatened not doubtfully or remotely, but by clear
and present danger. The rational connection between the remedy provided
and the evil to be curbed, which in other context might support legislation
against attack on due process grounds, will not suf ce. These rights rest on
rmer foundation. Accordingly, whatever occasion would restrain orderly
discussion and persuasion, at appropriate time and place, must have clear
support in public danger, actual or impending. Only the greatest abuses,
endangering permanent interests, give occasion for permissible limitation.
(Thomas V. Collins, 323 US 516 [1945]." (Emphasis supplied)
Signi cantly, the freedom of expression curtailed by the question
prohibition is not so much that of the candidate or the political party.
The regulation strikes at the freedom of an individual to express his
preference and, by displaying it on his car, to convince others to
agree with him. A sticker may be furnished by a candidate but once
the car owner agrees to have it placed on his private vehicle, the
expression becomes a statement by the owner, primarily his own and
not of anybody else. If, in the National Press Club case, the Court
was careful to rule out restrictions on reporting by newspapers or
radio and television stations and commentators or columnists as long
as these are not correctly paid-for advertisements or purchased
opinions with less reason can sanction the prohibition against a
sincere manifestation of support and a proclamation of belief by an
individual person who pastes a sticker or decal on his private
property.
Second the questioned prohibition premised on the statute and as
couched in the
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resolution is void for overbreadth.


A statute is considered void for overbreadth when "it offends the
constitutional principle that a governmental purpose to control or
prevent activities constitutionally subject to state regulations may not
be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms." (Zwickler v. Koota,
19 L ed 2d 444 [1967]).
"In a series of decisions this Court has held that, even though the
governmental purpose be legitimate and substantial, that purpose cannot be
pursued by means that broadly sti e fundamental personal liberties when
the end can be more narrowly achieved. The breadth of legislative
abridgment must be viewed in the light of less drastic means for achieving
the same basic purpose.
In Lovell v. Grif n , 303 US 444, 82 L ed 949, 58 S Ct. 666, the Court
invalidated an ordinance prohibiting all distribution of literature at any
time or place in Grif n, Georgia, without a license, pointing out that so
broad an interference was unnecessary to accomplish legitimate municipal
aims. In Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct.. 146,
the Court dealt with ordinances of four different municipalities which
either banned or imposed prior restraints upon the distribution of handbills.
In holding the ordinances invalid, the court noted that where legislative
abridgment of 'fundamental personal rights and liberties' is asserted, ' the
courts should be astute to examine the effect of the challenged legislation.
Mere legislative preferences or beliefs respecting matters of public
convenience may well support regulation directed at other personal
activities, but be insuf cient to justify such as diminishes the exercise of
rights so vital to the maintenance of democratic institutions.' 308 US, at
161. In Cantwell v. Connecticut, 310 US 296, 84 L ed 1213, 60 S Ct. 900,
128 ALR 1352, the Court said that '[c]onduct remains subject to regulation
for the protection of society,' but pointed out that in each case 'the power to
regulate must be so exercised as not, in attaining a permissible end, unduly
to infringe the protected freedom." (310 US at 304) (Shelton v. Tucker, 364
US 479 [1960])
The resolution prohibits the posting of decals and stickers not more
than eight and one- half (8-1/2) inches in width and fourteen (14)
inches in length in any place, including mobile places whether public
or private except in areas designated by the COMELEC. Verily, the
restriction as to where the decals and stickers should be posted is so
broad that it encompasses even citizen's private property, which in
this case is a privately-owned vehicle. In consequence of this
prohibition, another cardinal rule prescribed by the Constitution
would be violated. Section 1, Article III of the Bill of Rights
provides that no person shall be deprived of his property without due
process of law.
"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 person's acquisitions without control
or diminution save by the law of the land. 1 Cooley's Bl. Com.
127." (Buchanan v. Warley 245 US 60 [1917])
As earlier stated, we have to consider the fact that in the posting of
decals and stickers on cars and other moving vehicles, the candidate
needs the consent of the owner of the
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vehicle. In such a case, the prohibition would not only deprive the
owner who consents to such posting of the decals and stickers the
use of his property but more important, in the process, it would
deprive the citizen of his right to free speech and information:
"Freedom to distribute information to every citizen wherever he desires to
receive it is so clearly vital to the preservation of a free society that,
putting aside reasonable police and health regulations of time and manner
of distribution, it must be fully preserved. The danger of distribution can
so easily be controlled by traditional legal methods leaving to each
householder the full right to decide whether he will receive strangers as
visitors, that stringent prohibition can serve no purpose but that forbidden
by the constitution, the naked restriction of the dissemination of
ideas." (Martin v. City of Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313
[1943])
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
justi cation on the part of the Government must be exceptionally
convincing and irrefutable. The burden is not met in this case. LexLia

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 in the common poster areas
sanctioned by COMELEC. This means that a private person cannot
post his own crudely prepared personal poster on his own front door
or 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 of cers, armed with a copy of the statute or regulation,
may do. LexLib

The provisions allowing regulations are so loosely worded that they


include the posting of decals or stickers in the privacy of one's living
room or bedroom. This is delegation running riot. As stated by
Justice Cardozo in his concurrence in Panama Re ning Co. v. Ryan
(293 U.S. 388; 79 L. Ed. 446 [1935]), "The delegated power is
unconfined and vagrant. . . This is delegation running riot. No such
plentitude of power is susceptible of transfer."
Third the constitutional objective to give a rich candidate and a
poor candidate equal
opportunity to inform the electorate as regards their candidacies,
mandated by Article II,
Section 26 and Article XIII, Section 1 in relation to Article IX (c)
Section 4 of the
Constitution, is not impaired by posting decals and stickers on cars
and other private
vehicles. Compared to the paramount interest of the State in
guaranteeing freedom of
expression, any nancial considerations behind the regulation are of
marginal signi cance.
LLpr

Under section 26, Article II of the Constitution, "The State shall


guarantee equal access to opportunities for public service, . . . while
under section 1, Article XIII thereof "The Congress shall give
highest priority to the enactment of measures that protect and
enhance the right of all the people to human dignity, reduce social,
economic, and political inequalities, and remove cultural inequities
by equitably diffusing wealth and political power for the common
good." (Emphasis supplied)
It is to be reiterated that the posting of decals and stickers on cars,
calesas, tricycles, pedicabs and other moving vehicles needs the
consent of the owner of the vehicle. Hence, the preference of the
citizen becomes crucial in this kind of election propaganda not the
nancial resources of the candidate. Whether the candidate is rich and,
therefore, can afford to doleout more decals and stickers or poor and
without the means to spread out the number of decals and stickers is
not as important as the right of the owner to freely express his choice
and exercise his right of free speech. The owner can even prepare his
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own decals or stickers for posting on his personal property. To strike


down this right and enjoin it is impermissible encroachment of his
liberties.
In sum, the prohibition on posting of decals and stickers on "mobile"
places whether public or private except in the authorized areas
designated by the COMELEC becomes censorship which cannot be
justified by the Constitution:
". . . The concept of the Constitution as the fundamental law, setting forth
the criterion for the validity of any public act whether proceeding from the
highest of cial or the lowest functionary, is a postulate of our system of
government. That is to manifest fealty to the rule of law, with priority
accorded to that which occupies the topmost rung in the legal hierarchy.
The three departments of government in the discharge of the functions
with which it is entrusted have no choice but to yield obedience to its
commands. Whatever limits it imposes must be observed. Congress in the
enactment of statutes must ever be on guard lest the restrictions on its
authority, either substantive or formal, be transcended. The Presidency in
the execution of the laws cannot ignore or disregard what it ordains. In its
task of applying the law to the facts as found in deciding cases, the
judiciary is called upon to maintain inviolate what is decreed by the
fundamental law. Even its power of judicial review to pass upon the
validity of the acts of the coordinate branches in the course of adjudication
is a logical corollary of this basic principle that the Constitution is
paramount. It overrides any governmental measure that fails to live up to
its mandates. Thereby there is a recognition of its being the supreme
law." (Mutuc v. Commission on Elections, supra)
The unusual circumstances of this year's national and local elections
call for a more liberal interpretation of the freedom to speak and the
right to know. It is not alone the widest possible dissemination of
information on platforms and programs which concern us. Nor are
we limiting ourselves to protecting the unfettered interchange of
ideas to bring about political change. (Cf. New York Times v.
Sullivan, supra) The big number of candidates and elective positions
involved has resulted in the peculiar situation where almost all voters
cannot name half or even two-thirds of the candidates running for
Senator. The public does not know who are aspiring to be elected to
public office.
There are many candidates whose names alone evoke quali cation,
platforms, programs and ideologies which the voter may accept or
reject. When a person attaches a sticker with such a candidate's name
on his car bumper, he is expressing more than the name; he is
espousing ideas. Our view of the validity of the challenged
regulation includes its effects in today's particular circumstances. We
are constrained to rule against the COMELEC prohibition.
WHEREFORE, the petition is hereby GRANTED. The portion of
Section 15(a) of Resolution No. 2347 of the Commission on
Elections providing that "decals and stickers may be posted only in
any of the authorized posting areas provided in paragraph (f) of
Section 21 hereof" is DECLARED NULL and VOID.
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Paras, Padilla, Bidin, Grio-
Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon, JJ.,
concur.
Feliciano and Bellosillo, JJ., is on leave.
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Separate Opinions
CRUZ, J., concurring:
I join Mr. Justice Gutierrez and reiterate the views expressed in my
dissent in National Press Club v. Commission on Elections. The
stand taken by the Court in the case at bar is a refreshing change
from its usual deferential attitude toward authoritarianism as a
persistent vestige of the past regime. After the disappointing decision
in the ad ban case, I hope that the present decision will guide us to
the opposite direction, toward liberty and the full recognition of
freedom of expression. This decision is a small step in rectifying the
errors of the past, but it is a step just the same, and on the right track
this time.
Regarding the sticker ban, I think we are being swamped with
regulations that unduly obstruct the free ow of information so vital in
an election campaign. The Commission on Elections seems to be
bent on muzzling the candidates and imposing all manner of silly
restraints on their efforts to reach the electorate. Reaching the
electorate is precisely the purpose of an election campaign, but the
Commission on Elections obviously believes that the candidates
should be as quiet as possible.
Instead of limiting the dissemination of information on the election
issues and the quali cations of those vying for public of ce, what the
Commission on Elections should concentrate on is the education of
the voters on the proper exercise of their suffrages. This function is
part of its constitutional duty to supervise and regulate elections and
to prevent them from deteriorating into popularity contests where the
victors are chosen on the basis not of their platforms and competence
but on their ability to sing or dance, or play a musical instrument, or
shoot a basketball, or crack a toilet joke, or exhibit some such
dubious talent irrelevant to their ability to discharge a public of ce.
The public service is threatened with mediocrity and indeed sheer
ignorance if not stupidity. That is the problem the Commission on
Elections should try to correct instead of wasting its time on much
trivialities as where posters shall be allowed and stickers should not
be attached and speeches may be delivered. prLL

The real threat in the present election is the in ux of the unquali ed


professional entertainers whose only asset is the support of their
drooling fans, the demagogues who drumbeat to the clink of coins
their professed present virtues and past innocence, the opportunists
for whom exibility is a means of political survival and even of
nancial gain, and, most dangerous of all, the elements of our
electorate who would, with their mindless ballots, impose these of
ce-seekers upon the nation. These are the evils the Commission on
Elections should try to correct, not the inconsequential and inane
question of where stickers should be stuck. I have nothing but praise
for the zeal of the Commission on Elections in pursuing the ideal of
democratic elections, but I am afraid it is barking up the wrong tree.
LibLex

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EN BANC
[G.R. No. 103877. June 23, 1992.]
BENJAMIN F. ARAO , petitioner, vs. COMMISSION ON
ELECTIONS and WARLITO PULMONES, respondents.
Ruben E. Agpalo for petitioner.
SYLLABUS
1. REMEDIAL LAW; ACTIONS; DISTINCTION BETWEEN
ORIGINAL ACTION FOR CERTIORARI UNDER THE
CONSTITUTION AND APPEAL BY CERTIORARI. Distinction
should be drawn between an original action for certiorari, as in this
case brought under Sec. 7, Art. IX-A, 1987 Constitution, and an
appeal by certiorari or petition for review. In the special civil action
for certiorari, the main issue is lack of jurisdiction or grave abuse of
discretion amounting to excess of jurisdiction, while an appeal by
certiorari or petition for review is limited to the consideration of
questions of law.
2. ID.; EVIDENCE; CONCLUSION OF COMELEC ENTITLED
TO UTMOST RESPECT. This Court has invariably followed the
principle that in the absence of any jurisdictional in rmity or an error
of law of the utmost gravity, the conclusion reached by respondent
Commission on a matter that falls within its competence is entitled to
the utmost respect. So it has been reiterated time and time again.
(Sidro v. Commission on Elections, G.R. No. 64033, July 25, 1983,
123 SCRA 759)
3. ID.; SUPREME COURT; POWER TO PASS UPON AN ORDER
OR DECISION OF THE COMELEC; LIMITATION. The
extraordinary power of this Court to pass upon an order or decision
of COMELEC should be exercised restrictively, with care and
caution, while giving it the highest regard and respect due a
constitutional body. For, not every abuse of discretion justi es the
original action of certiorari; it must be grave. Nor any denial of due
process within its ambit; it must be patent and it must be substantial.
The test therefore is whether petitioner has demonstrated
convincingly that COMELEC has committed grave abuse of
discretion or exceeded its jurisdiction amounting to patent and
substantial denial of due process in issuing the challenged decision.
4. POLITICAL LAW; ELECTION LAWS; ELECTION PROTEST;
POWER OF COMELEC TO RULE ON ISSUES NOT SPECIFIED
BY PARTY; CASE AT BAR. The failure or omission of protestant
to raise the question of identical handwriting or of impugning the
validity of the ballots on that ground, resulting in the invalidation of
466 ballots for petitioner, does not preclude respondent COMELEC
from rejecting them on that ground. Unlike an ordinary suit, an
election protest is of utmost public concern. The rights of the
contending parties in the position aspired for must yield to the far
greater interest of the citizens in the sanctity of the electoral process.
This being the case, the choice of the people to represent them may
not be bargained away by the sheer negligence of a party, nor
defeated by technical rules of procedure. Thus, COMELEC cannot
just close its eyes to the illegality of the ballots brought before it,
where the ground for the invalidation was omitted by the protestant.
As held in Yalung v. Atienza: 52 Phil. 781 (1929) ". . . Inasmuch as it
is not necessary to specify
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in detail in the motion of protest in which of the ballots the frauds


and irregularities were committed, such a procedure being well-nigh
impossible, and it being enough to allege in what the fraud and
irregularity consisted, and that had it not been for such anomalies,
the result of the election would have been otherwise, all of which
have been alleged in the motion of protest in question, the court or
the commissioners appointed by the same may revise all the ballots,
admitting the valid and legal ones and rejecting the others, with a
view to arriving at the lawfully expressed will of the electors. The
institution of popular suffrage is one of public interest and not a
private interest of the candidates, so that if in the revision of the
ballots some illegal ballots are found which have not been speci cally
impugned in the motion of protest, the court may reject them motu
proprio, since it is not essential that the contestant set forth the
grounds of his contest with the same precision required of a pleading
in ordinary civil cases (20 Corpus Juris, 227; emphasis supplied).
5. ID.; ID.; ID.; JURISDICTIONAL DEFECT NOT BROUGHT
IMMEDIATELY TO THE ATTENTION OF COMELEC, DEEMED
WAIVED; CASE AT BAR. Petitioner did not question this
alleged irregularity by bringing the matter to the attention of
COMELEC (First Division) immediately after the promulgation of
its Resolution. The Resolution containing the alleged jurisdictional
defect was promulgated on December 11, 1991. However, it was not
until he led his petition on February 17, 1992, that petitioner
complained for the rst time. Certainly, that Resolution having been
rendered by a division of COMELEC could have been subject of a
motion for reconsideration. Admittedly, petitioner did not take steps
to have the matter reconsidered by public respondent before coming
to Us. Having been declared winner in the Resolution of December
11, 1991, petitioner would not ordinarily be expected to initiate a
motion for reconsideration. Nonetheless, he could have brought up
his objections in his Memorandum in opposition to the Protestant's
Motion for Reconsideration so that public respondent could have
properly ruled thereon. Consequently, petitioner may be deemed to
have waived his right to question the Resolution when he failed to
act accordingly despite the opportunity to do so. He should not be
permitted, in other words, to remain mute and unaffected in the face
of a perceived jurisdictional defect and, worse, pro t from his
quiescence, only to grumble in the end when it turns out to be
prejudicial to his interest. As it has been said, "[n]either equity nor
the law relieves those who seek aid in Court merely to avoid the
effects of their own negligence . . ." (Lipscomb v. Talbott, 243 Mo 1,
36 [1912]).
DECISION
BELLOSILLO, J : p

This petition for certiorari 1 seeks to set aside, for having allegedly
been issued with grave abuse of discretion and/or in excess of
jurisdiction, the Decision of respondent Commission on Elections
(COMELEC) in EPC No. 88-1, 2 promulgated January 23, 1992,
which reconsidered the Resolution of its First Division of December
11, 1991, 3 nding petitioner (protestee therein) "winner of the election
protest by a margin of 378 votes in lieu of the original lead of
protestee of 417 votes over protestant at the time of the former's
proclamation by the City Board of Canvassers of Pagadian City," and
declaring instead private respondent (protestant therein) duly elected
mayor thereof.
Petitioner Benjamin Arao and private respondent Warlito Pulmones
were candidates for the Of ce of City Mayor of Pagadian City in the
January 18, 1988, local elections. After
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canvass, petitioner was shown to have garnered 12,447 votes, while
private respondent, only 12,030 votes 4 , or a margin of 417 votes in
favor of petitioner. Consequently, on January 21, 1988, petitioner
was proclaimed City Mayor-elect of Pagadian City. 5
On January 28, 1988, private respondent led his Protest with
COMELEC6 more particularly alleging that "while fraud and
anomalies were rampant in practically all the voting centers of
Pagadian City, the violations were glaringly and notably perpetrated
in the following districts and/or precincts, to wit: (a) [I]n all the three
(3) precincts of Kawit District . . . (b) [I]n Tuburan District . . .
particularly in Precincts 77 and 80 . . . (c) (I)n Bonifacio District,
particularly Precinct 69 . . . (d) [I)n Sta. Lucia District, particularly
Precinct No. 42 . . . (e) [I)n all of the seven (7) precincts in Sto Nio
District . . . (f) [I)n San Jose District, particularly Precinct No. 32 . . .
(g) [I)n Precinct No. 33 of San Jose District . . . (h) [I)n Precinct No.
34 of San Jose District . . . (i) [I)n all the precincts in San Pedro
District . . . (j) [I)n Precincts 19 and 22 of Gatas District . . . (k) . . .
in all the precincts in Balangasa District but more notably in
Precincts 8 and 11 . . ."
On February 8, 1988, petitioner filed his Answer with
Counterprotest. 7 However, COMELEC (First Division) dismissed
the counterprotest per its Resolution of February 7, 1991, for failure
to pay the required filing fee with the reglementary period. 8
On February 15, 1988, or after the 10-day period to le an election
protest, private respondent led an Amended Protest enumerating
therein thirteen (13) precincts which were not previously speci ed:
Precincts 1-A, 4, 6, 9, 17, 20, 21, 30, 31, 35, 36, 50 and 70. 9
Actually, other precincts, i.e., Precincts 101, 110, 111, 112, 113, 121,
122, 129, 137, 143, 153, 108 and 131, which were not particularly
mentioned in the Petition, were included in the Amended Protest. 10
On March 3, 1988, petitioner led his Protestee's Comments and
Observations on the Amended Protest, although received by
COMELEC only on April 4, 1988. 11
On February 7, 1991, COMELEC (First Division) issued the
following Resolution: LexLib

"Apparently, the Commission taking into consideration the comments and


observations of protestee, was convinced that the amended protest was not
admissible as the record failed to yield any formal order admitting the
amended protest." 12

On December 11, 1991 COMELEC (First Division) issued a


Resolution par. 4 of which states:
"4. Protestant led his Amended Protest on February 15, 1988, although
there is nothing on record that shows the same was duly admitted; the
record shows, however, that the Protestee submitted his 'Comments and
Observations on the Amended Protest' in a formal document dated March
3, 1988 and received by this Commission on April 4, 1988." 13
In holding that there was nothing on record showing that Protestant's
Amended Protest was duly admitted, public respondent's First
Division apparently overlooked its Order of April 7, 1988, which
reads:
"For consideration is the Protestee's Comments and Observations on the
Amended Protest dated March 3, 1988, led by Counsel for Protestee
praying that the amended protest dated February 15, 1988, led by
Protestant be denied admission. It appearing from the records of the case
that Protestant's Amended Protest was led in accordance with Sec. 17, Rule
X of COMELEC Resolution No.
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1996, the Commission hereby denies the herein Protestee's Comments and
Observations on the Protestant's Amended Protest."
In the Resolution En Banc of this Court dated September 7, 1989, in
G.R. No. 88036, where petitioner questioned the "transfer of the
questioned ballot boxes to Cagayan de Oro in view of the serious
peace and order problem in Pagadian City", it clearly appears that the
Amended Protest was in fact admitted, thus
". . . Besides, the Order of April 7, 1988, admitting the amended protest
was questioned only on May 11, 1989, when the herein petition was led, or
way beyond the 30-day reglementary period prescribed in Article IX-A,
Section 7, of the Constitution."
On December 11, 1991, after revision of ballots and hearing,
COMELEC (First Division) promulgated a Resolution the
dispositive portion of which reads:
"WHEREFORE . . . the Commission (First Division) RESOLVES, as it
hereby RESOLVES, to DISMISS Election Protest Case No. 88-1 and
DECLARES protestee winner of the election protest by a margin of 378
votes in lieu of the original lead of protestee by 417 votes over protestant
at the time of the former's proclamation by the City Board of Canvassers
of Pagadian City." 14
On December 16, 1991, private respondent filed his Motion for
Reconsideration. 15 Petitioner claims that on January 15, 1992, he led
a Memorandum in Opposition to the
Motion for Reconsideration of private respondent 16 raising the
following points:
(a) examination and appreciation of ballots should have been con ned to 31
protested precincts per original protest led January 28, 1988, considering
that amended protest was decreed as "not admissible" in the February 7,
1991, Resolution of COMELEC (First Division);
(b) examination of ballots to determine identical handwritings should be
limited to Precincts 19, 22, 8 and 11 as alleged in the original protest;
(c) it was contrary to basic rules for COMELEC to pass upon ballots (in
favor of protestee) as identical with each other when they were not even
questioned by protestant, thus depriving protestee the right to present
controverting evidence;
(d) COMELEC failed to consider its records showing that there were 139
assisted illiterate or disabled voters, hence, to invalidate their votes is
technically a disenfranchisement and a subversion of sovereign will;
(e) it is statistically improbable for a candidate to have utilized 332 groups
(persons) to write 723 ballots (a ratio of 1 person for 2 ballots);
(f) mathematical computation of protestant in his motion for
reconsideration is erroneous and self-serving; and,
(g) COMELEC should have credited 10 more votes for protestee as
affirmed/admitted during the revision of ballots.
However, in his Comment, private respondent Pulmones denies all
these averments of petitioner, and claims that they contain "baseless
and unfounded" allegations which are precisely to be rejected in this
petition.
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On January 23, 1992, COMELEC En Banc promulgated its Decision


thus
"ACCORDINGLY, the Commission En Banc hereby renders judgment: a.
GRANTING Protestant Pulmones' Motion for Reconsideration; b.
DENYING Protestee Arao's Manifestation for the dismissal of Protestant's
Motion for Reconsideration; c. AFFIRMING the factual ndings of the
Commission (First Division) relative to the examination of the contested
ballots of both Protestant and Protestee; d. DECLARING Protestant
Warlito Pulmones as the duly elected Mayor of Pagadian City in the
January 18, 1988 elections with a margin of 516 votes against Protestee
Benjamin F. Arao; and, e. ORDERING Protestee Arao to VACATE his of
ce and surrender the same to Protestant Pulmones once this decision
becomes final and executory." 17
Meanwhile, on February 28, 1992, acting on the motion of
Pulmones, respondent COMELEC granted the issuance of a writ of
execution to enforce its Decision of January 23, 1992.
On March 4, 1992, petitioner led with Us an urgent motion for the
issuance of a writ of preliminary injunction or a temporary
restraining order against the February 28, 1992, Order of public
respondent. LLphil
On March 5, 1992, this Court issued a temporary restraining order as
prayed for by petitioner, and required private respondent to comment
thereon.
In his petition, Arao raises ve issues which nevertheless may simply
be reduced into whether respondent COMELEC gravely abused its
discretion or exceeded its jurisdiction: (1) when it examined and
invalidated 426 ballots for petitioner in precincts not included in the
original protest but only in the amended protest led beyond the ten-
day period; (2) when it invalidated 466 ballots for petitioner as
having identical handwritings although protestant did not raise such
issues, nor impugn the validity of the ballots on such ground; and,
(3) when it concluded that certain ballots were with identical
handwritings, some marked, and others stray, and deducting them
from the total votes of petitioner without stating the grounds therefor.
Before resolving these issues, a distinction should at the outset be
drawn between an original action for certiorari, as in this case
brought underSec. 7, Art. IX-A, 1987 Constitution, and an appeal by
certiorari or petition for review. In the special civil action for
certiorari, the main issue is lack of jurisdiction or grave abuse of
discretion amounting to excess of jurisdiction, while an appeal by
certiorari or petition for review is limited to the consideration of
questions of law. Thus, in the oft-cited case of Padilla vs.
COMELEC, 18 We ruled:
"The principal relief sought by petitioner is predicated on the certiorari
jurisdiction of this Court as provided in Section 11, Article XII-C, 1973
Constitution. It is, as explained in Aratuc vs. Commission on Elections (88
SCRA 251), 'not as broad as it used to be' under the old Constitution and it
'should be con ned to instances of grave abuse of discretion amounting to
patent and substantial denial of due process' . . . Moreover, the legislative
construction . . . of the constitutional provision has narrowed down 'the
scope and extent of the inquiry the Court is supposed to undertake to what
is strictly the of ce of certiorari as distinguished fromreview.' And in
Lucman vs. Dimaporo . . . a case decided under the Constitution of 1935,
this Court, speaking through then Chief Justice Concepcion, ruled that 'this
Court cannot . . . review rulings or ndings of fact of the Commission on
Elections' . . . as there is 'no reason to believe that the framers of
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our Constitution intended to place the [said] Commission created and


explicitly made independent by the Constitution itself on a lower level'
than statutory administrative organs (whose factual ndings are 'not
disturbed by courts of justice, except when there is absolutely no evidence
or no substantial evidence in support of such ndings') . . . Factual matters
were deemed not proper for consideration in proceedings brought either 'as
an original action for certiorari or as an appeal for certiorari . . . [for] the
main issue in . . . certiorari is one of jurisdiction lack of jurisdiction or
grave abuse of discretion amounting to excess of jurisdiction' while
'petitions for review on certiorari are limited to the consideration of
questions of law.'
The aforementioned rule was reiterated in the cases of Ticzon and
Bashier . . . Indeed, as early as the year 1938, applying Section 4, Article
VI of the 1935 Constitution . . . this Court held that the Electoral
Commission's 'exclusive jurisdiction' being clear from the language of the
provision, 'judgment rendered . . . in the exercise of such an acknowledged
power is beyond judicial interference, except . . . 'upon a clear showing of
such arbitrary and improvident use of the power as will constitute a denial
of due process of law' . . . Originally lodged in the legislature that
exclusive function of being the 'sole judge' of contests 'relating to the
election, returns and quali cations' of members of the legislature was
transferred in its totality' to the Electoral Commission by the 1935
Constitution. That grant of power, to use the language of late Justice Jose
P. Laurel, 'was intended to be as complete and unimpaired as if it had
remained originally in the legislature . . .' These observations remain valid
and applicable to the exercise of that function, as now vested in the
respondent Commission by the 1973 Constitution."
Earlier, in Sidro v. Commission on Elections, 19 it was held
". . . This Court has invariably followed the principle that in the absence of
any jurisdictional in rmity or an error of law of the utmost gravity, the
conclusion reached by the respondent Commission on a matter that falls
within its competence is entitled to the utmost respect. So it has been
reiterated time and time again."
Although the Padillacase hereinbefore quoted was decided under the
1973 Constitution, the doctrine therein enunciated in still applicable
under the 1987 Constitution considering that Sec. 11, Art. XII-C of
the 1973 Constitution, invoked therein has been retained in the 1987
Constitution except for the limitation "as may be provided by this
Constitution or by law." Consequently, unless it is shown that the
Constitution itself or any law modi es the provision that ". . . any
decision, order, or ruling of each Commission 20 may be brought to
the Supreme Court on certiorari by the aggrieved party within thirty
days from receipt of a copy thereof," and none is pointed to Us, our
interpretation of the pertinent provisions adverted to in both
Constitutions, as well as our adherence thereto, cannot be any less rm
and faithful.
What is certain from the above disquisition is that the extraordinary
power of this Court to pass upon an order or decision of COMELEC
should be exercised restrictively, with care and caution, while giving
it the highest regard and respect due a constitutional body. For, not
every abuse of discretion justi es the original action of certiorari; it
must be grave. Nor any denial of due process within its ambit; it
must be patent and it must be substantial. The test therefore is
whether petitioner has demonstrated convincingly that COMELEC
has committed grave abuse of discretion or exceeded its jurisdiction
amounting to patent and substantial denial of due process in issuing
the challenged
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decision. Here, petitioner has utterly failed.


As regards the rst issue of petitioner, it appears that the original
Protest of private respondent Pulmones did in fact cover all the forty-
ve (45) precincts the COMELEC took cognizance of in resolving
EPC No. 88-1. As alleged in par. 5 of his Protest
"5. That while fraud and anomalies were rampant in practically all the
voting centers of Pagadian City, the violations were glaringly and notably
perpetrated in the following districts and/or precincts . . ."
The prayer in the same Protest also con rms that it refers to forty- ve
(45) precincts as it seeks the "opening and recounting of votes case
in all 3 precincts in Kawit District; Precs. 77 and 80 in Tuburan
District; Precs. 77, 42, 58, 80 and 70 all of Pagadian City; Prec. 69 of
Bonifacio District; Prec. 42 and all precincts in Sta. Lucia District;
all seven precincts in the District of Sto. Nio; Precs. 32, 33 and 34,
and all precincts of San Jose District; all the precincts in San Pedro
District; Precs. 19 and 32 and all other precincts in the Gatas district;
and Prec. 8 and 11 and all other precincts of Balangasan District, all
of Pagadian City" (underscoring supplied). Speci cally, the precincts
covered are: (a) all precincts of Kawit (63, 64 and 65; (b) two in
Tuburan (77 and 80); (c) one in Bonifacio (69); (d) all in Sta. Lucia
(42 and 50); (e) all in Sto. Nio (11-A, 12, 13-A, 14, 15 and 16); (f)
all in San Jose (30, 31, 32, 33, 34, 35 and 36); (g) all in San Pedro
(52, 53, 54, 55, 56, 57, 58, 59, 60, 61 and 62); (h) all in Gatas (17,
18, 19, 20, 21 and 22); (i) all in Balangasan (1-A, 4, 6, 8, 9 and 11);
and, (j) Prec. 70 (unspeci ed district). The sum total of these
precincts is forty- ve (45), which tallies with the total number of
precincts contested by protestant, now private respondent.
It may be noted that while protestant did attempt to introduce new
precincts in his Amended Protest led on February 15, 1988, namely,
Precincts Nos. 101, 111, 112, 113, 121, 122, 129, 137, 143, 153, 108
and 131, which were not enumerated in the original Protest, these
precincts were not taken into consideration by COMELEC in
deciding EPC No. 88-1. Hence, the first issue clearly appears to be
based on a wrong premise. LLpr

On the second issue, the failure or omission of protestant to raise the


question of identical handwriting or of impugning the validity of the
ballots on that ground, resulting in the invalidation of 466 ballots for
petitioner, does not preclude respondent COMELEC from rejecting
them on that ground.
Unlike an ordinary suit, an election protest is of utmost public
concern. The rights of the contending parties in the position aspired
for must yield to the far greater interest of the citizens in the sanctity
of the electoral process. This being the case, the choice of the people
to represent them may not be bargained away by the sheer
negligence of a party, nor defeated by technical rules of procedure.
Thus, COMELEC cannot just close its eyes to the illegality of the
ballots brought before it, where the ground for the invalidation was
omitted by the protestant. As held in Yalung v. Atienza: 21
". . . Inasmuch as it is not necessary to specify in detail in the motion of
protest in which of the ballots the frauds and irregularities were
committed, such a procedure being well-nigh impossible, and it being
enough to allege in what the fraud and irregularity considered, and that had
it not been for such anomalies, the result of the election would have been
otherwise, all of which have been alleged in the motion of protest in
question, the court or the commissioners appointed by the same may revise
all the ballots, admitting the valid and legal ones and
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rejecting the others, with a view to arriving at the lawfully expressed will
of the electors. The institution of popular suffrage is one of public interest
and not a private interest of the candidates, so that if in the revision of the
ballots some illegal ballots are found which have not been speci cally
impugned in the motion of protest, the court may reject them motu propio,
since it is not essential that the contestant set forth the grounds of his
contest with the same precision required of a pleading in ordinary civil
cases (20 Corpus Juris, 227; emphasis supplied).
"In the case of Lucero vs. De Guzman (45 Phil. 852), this court stated the
following: 'The purpose of the legislature in declaring that contests should
not be conducted upon pleadings or by action was to free the courts as far
as possible from the technicalities incident to ordinary proceeding by
action and to enable the courts to administer justice speedily and without
complication."
"The trial court, then, did not err in taking into account in the revision of
the ballots, irregularities not set forth in the motion of protest."
With regard to the third issue, the complaint of petitioner against the
alleged omission of COMELEC to state the reasons for its
conclusion that certain ballots were with identical handwritings,
some marked and others stray, does not in any magnitude diminish
the straightforward statement of the public respondent that "it
painstakingly examined and appreciated individually the contested
ballots for both protestant and protestee in accordance with existing
norms . . ." 22
Petitioner did not question this alleged irregularity by bringing the
matter to the attention of COMELEC (First Division) immediately
after the promulgation of its Resolution. The Resolution containing
the alleged jurisdictional defect was promulgated on December 11,
1991. However, it was not until he led his petition on February 17,
1992, that petitioner complained for the rst time. Certainly, that
Resolution having been rendered by a division of COMELEC could
have been subject of a motion for reconsideration. Admittedly,
petitioner did not take steps to have the matter reconsidered by
public respondent before coming to Us.
Having been declared winner in the Resolution of December 11,
1991, petitioner would not ordinarily be expected to initiate a motion
for reconsideration. Nonetheless, he could have brought up his
objections in his Memorandum in opposition to the Protestant's
Motion for Reconsideration so that public respondent could have
properly ruled thereon. Consequently, petitioner may be deemed to
have waived his right to question the Resolution when he failed to
act accordingly despite the opportunity so to do. He should not be
permitted, in other words, to remain mute and unaffected in the face
of a perceived jurisdictional defect and, worse, pro t from his
quiescence, only to grumble in the end when it turns out to be
prejudicial to his interest. As it has been said, "[n]either equity not
the law relieves those who seek aid in Court merely to avoid the
effects of their own negligence . . ." (Lipscomb v. Talbott, 243 Mo 1,
36 [1912]).
WHEREFORE, nding no abuse of discretion, much less grave,
patent and substantial, the petition is DENIED. llcd

The temporary restraining order issued by this Court on March 3,


1992, is hereby lifted and set aside.
SO ORDERED.
Narvasa C .J ., Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin,
Grio-Aquino, Medialdea,
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Regalado, Davide, Jr. and Romero, JJ ., concur. Footnotes


1. Filed pursuant to Sec. 7, Art. IX-A, 1987 Constitution.

2. Annex "I", Petition, Rollo, pp. 197-203.

3. Annex "F", Petition, Rollo, pp. 83-162.

4. Erroneously alleged in par. IV. 1, Petition, as "12,034".

5. Annex "F", Petition, Rollo, pp. 83-162.

6. Annex "A", Petition, Protest, par. 5; Rollo, pp. 45-49.

7. Annex "B", Petition, Rollo, pp. 53-60.

8. Annex "E", Petition, Rollo, pp. 75-81.

9. Annex "C", Petition, Rollo, pp. 61-72.


10. Ibid.

11. Resolution, COMELEC (First Division), prom. December 11, 1991,


p. 3.

12. Annex "E", Petition, Rollo, pp. 75-81.

13. Annex "F", Petition, Rollo, pp. 83-162.

14. Annex "F", Petition, Rollo, pp. 83-162.

15. Annex "G", Petition, Rollo, pp. 163-169.

16. Annex "H", Petition, Rollo, pp. 170-195.

17. Annex "I", Petition, Rollo, pp. 197-203.

18. G.R. Nos. 68351-52, July 9, 1985; 137 SCRA 424.

19. G.R. No. 64033, July 25, 1983; 123 SCRA 759.

20. Art. IX, 1987 Constitution refers to Constitutional Commissions,


namely, the Civil Service Commission (par. B), the Commission on
Elections (par. C) and the Commission on Audit (par. D).

21. 52 Phil. 781 (1929).


22. Resolution, COMELEC (First Division), of December 11, 1991, p. 8.

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EN BANC
[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.
Marven B. Daquilanea for petitioner.
The Solicitor General for respondent.
Ladrido, Trompeta, Caoyonan & Villa for intervenor.
SYLLABUS
POLITICAL LAW; ELECTION LAW; COMMISSION ON
ELECTIONS; RULES OF PROCEDURE; SECTION 7 RULE 27
THEREOF; CORRECTION OF ERRORS IN TABULATION OR
TALLYING OF RESULTS BY BOARD OF CANVASSERS;
APPLICABLE IN CASES WHERE THE VALIDITY OF THE
PROCLAMATION IS IN QUESTION. The proceedings before
the Municipal Board of Canvassers (MBC) should be summary.
Should any party be dissatis ed 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, Section 7 of the COMELEC Rules of
Procedure. Although this provision applies to pre-proclamation
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,
(178 SCRA 746 [1989]) 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,
Section 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."
Indeed, since the Statement of Votes forms the basis of the Certi cate
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 pre-proclamation 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 re ected 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
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case: It is DUREMDES' further submission that his proclamation


could not be declared null and void because a pre-proclamation
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 of ce 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). aisadc

DECISION
MENDOZA, J : p

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
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 Of ce, who were assigned to post the
returns on the tally
board outside the municipal building, also discovered the error and
reported it to Garin.
prLL

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:
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95-2414.
1)
2)
In the matter of the Fax-letter dated 13 May 1995 from Election Of cer
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:
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
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 COMELECen 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 pre-proclamation 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 in Bince, Jr. v. COMELEC 8 that the COMELEC
is "without power to partially or totally annul a proclamation or
suspend the effects of a proclamation without notice and hearing."
Petitioner's contention is well taken. That is why upon the ling of the
petition in this case, we issued a temporary retraining 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
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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 nd 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 dissatis ed 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 certi cates of canvass, during the canvassing as where (1) a
copy of the election returns of one precinct or two or more copies of a certi
cate of canvass were tabulated more than once, (2) two copies of the
election returns or certi cate of canvass were tabulated separately, (3) there
was a mistake in the adding or copying of the gures into the certi cate 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 proprio, or upon veri ed 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.
(g) The Clerk of Court concerned shall immediately set the appeal for
hearing.
(h) The appeal shall be heard and decided by the Commission en banc.
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Although this provision applies to pre-proclamation 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."
Indeed, since the Statement of Votes forms the basis of the Certi cate
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 pre- proclamation
controversy and the procedure for pre-proclamation controversies
cannot be applied to the correction in the computation of the totals in
the Statement of Votes. aisadc

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 re ected 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:
It is DUREMDES' further submission that his proclamation could not be
declared null and void because a pre-proclamation 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 of ce 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
WHEREFORE, the petition is DISMISSED and the Temporary
Restraining Order previously issued is hereby LIFTED.
SO ORDERED. cdll

Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero,


Bellosillo, Melo,
Puno, Vitug, Kapunan, Francisco, Hermosisima, Jr., and Panganiban,
JJ., concur. Footnotes
1. Rollo, p. 52.

2. Petition, Annex A, Rollo, p. 19.

3. Rollo, p. 53.

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6. 7. 8. 9. 10. 11. 12
Id., p. 24.
Excerpt from the Minutes of the Regular En Banc Meeting of the
Commission on Elections held on May 23, 1995. Rollo, p. 30.
Rollo, p. 25.
Rollo, p. 54.
218 SCRA 782 (1993).
Respondent COMELEC's Comment, p. 5.
Petition, Annex E, Rollo, p. 29.
178 SCRA 746 (1989). Id., at 757.
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EN BANC
[G.R. No. 162777. August 31, 2004.]
FRANCISCO I. CHAVEZ, petitioner, vs. COMMISSION ON
ELECTIONS, represented by its Chairman, BENJAMIN S.
ABALOS, ESMERALDA AMORA-LADRA, in her capacity as
Acting Director IV, National Capital Judicial Region, Commission
on Elections, and the SOLICITOR GENERAL, respondents.
DECISION
AZCUNA, J : p

In this petition for prohibition with prayer for the issuance of a writ
of preliminary injunction, Francisco I. Chavez stands as a taxpayer
and a citizen asking this Court to enjoin the Commission on
Elections (COMELEC) from enforcing Section 32 of its Resolution
No. 6520, dated January 6, 2004. The assailed provision is, as
follows:
Section 32. All propaganda materials such as posters, streamers, stickers or
paintings on walls and other materials showing the picture, image, or name
of a person, and all advertisements on print, in radio or on television
showing the image or mentioning the name of a person, who subsequent to
the placement or display thereof becomes a candidate for public of ce shall
be immediately removed by said candidate and radio station, print media
or television station within 3 days after the effectivity of these
implementing rules; otherwise, he and said radio station, print media or
television station shall be presumed to have conducted premature
campaigning in violation of Section 80 of the Omnibus Election Code.
Petitioner Chavez, on various dates, entered into formal agreements
with certain establishments to endorse their products. On August 18,
2003, he authorized a certain Andrew So to use his name and image
for 96 North, a clothing company. Petitioner also signed
Endorsement Agreements with Konka International Plastics
Manufacturing Corporation and another corporation involved in the
amusement and video games business, G-Box. These last two
agreements were entered into on October 14, 2003 and November
10, 2003, respectively. Pursuant to these agreements, three billboards
were set up along the Balintawak Interchange of the North
Expressway. One billboard showed petitioner promoting the plastic
products of Konka International Plastics Manufacturing Corporation,
and the other two showed petitioner endorsing the clothes of 96
North. One more billboard was set up along Roxas Boulevard
showing petitioner promoting the game and amusement parlors of G-
Box.
On December 30, 2003, however, petitioner led his certi cate of
candidacy for the position of Senator under Alyansa ng Pag-asa, a
tripartite alliance of three political parties: PROMDI, REPORMA,
and Aksyon Demokratiko.
On January 6, 2004, respondent COMELEC issued Resolution No.
6520, which contained
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Section 32, the provision assailed herein. On January 21, 2004,


petitioner was directed to comply with the said provision by the
COMELEC's Law Department. He replied, on January 29, 2004, by
requesting the COMELEC that he be informed as to how he may
have violated the assailed provision. He sent another letter dated
February 23, 2004, this time asking the COMELEC that he be
exempted from the application of Section 32, considering that the
billboards adverted to are mere product endorsements and cannot be
construed as paraphernalia for premature campaigning under the
rules. IEHTaA

The COMELEC answered petitioner's request by issuing another


letter, dated February 27, 2004, wherein it ordered him to remove or
cause the removal of the billboards, or to cover them from public
view pending the approval of his request.
Feeling aggrieved, petitioner Chavez asks this Court that the
COMELEC be enjoined from enforcing the assailed provision. He
urges this Court to declare the assailed provision unconstitutional as
the same is allegedly (1) a gross violation of the non-impairment
clause; (2) an invalid exercise of police power; (3) in the nature of an
ex-post facto law; (4) contrary to the Fair Elections Act; and (5)
invalid due to overbreadth.
Is Section 32 of COMELEC Resolution No. 6520 an invalid exercise
of police power? Petitioner argues that the billboards, while they
exhibit his name and image, do not at all announce his candidacy for
any public of ce nor solicit support for such candidacy from the
electorate. They are, he claims, mere product endorsements and not
election propaganda. Prohibiting, therefore, their exhibition to the
public is not within the scope of the powers of the COMELEC, he
concludes.
This Court takes a contrary view. Police power, as an inherent
attribute of sovereignty, is the power to prescribe regulations to
promote the health, morals, peace, education, good order, or safety,
and the general welfare of the people. 1 To determine the validity of a
police measure, two questions must be asked: (1) Does the interest of
the public in general, as distinguished from those of a particular
class, require the exercise of police power? and (2) Are the means
employed reasonably necessary for the accomplishment of the
purpose and not unduly oppressive upon individuals?
A close examination of the assailed provision reveals that its primary
objectives are to prohibit premature campaigning and to level the
playing eld for candidates of public of ce, to equalize the situation
between popular or rich candidates, on one hand, and lesser-known
or poorer candidates, on the other, by preventing the former from
enjoying undue advantage in exposure and publicity on account of
their resources and popularity. The latter is a valid reason for the
exercise of police power as held in National Press Club v.
COMELEC, 2 wherein the petitioners questioned the constitutionality
of Section 11(b) of Republic Act No. 6646, which prohibited the sale
or donation of print space and air time "for campaigning or other
political purposes," except to the COMELEC. The obvious intention
of this provision is to equalize, as far as practicable, the situations of
rich and poor candidates by preventing the former from enjoying the
undue advantage offered by huge campaign "war chests." This Court
ruled therein that this objective is of special importance and urgency
in a country which, like ours, is characterized by extreme disparity in
income distribution between the economic elite and the rest of
society, and by the prevalence of poverty, with so many of our
population falling below the poverty line.
Moreover, petitioner cannot claim that the subject billboards are
purely product endorsements and do not announce nor solicit any
support for his candidacy. Under the Omnibus Election Code,
"election campaign" or "partisan political activity" is de ned as an act
designed to promote the election or defeat of a particular candidate
or candidates to a
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public office. Activities included under this definition are:


(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. 3 (emphasis ours)
It is true that when petitioner entered into the contracts or agreements
to endorse certain products, he acted as a private individual and had
all the right to lend his name and image to these products. However,
when he led his certi cate of candidacy for Senator, the billboards
featuring his name and image assumed partisan political character
because the same indirectly promoted his candidacy. Therefore, the
COMELEC was acting well within its scope of powers when it
required petitioner to discontinue the display of the subject
billboards. If the subject billboards were to be allowed, candidates
for public of ce whose name and image are used to advertise
commercial products would have more opportunity to make
themselves known to the electorate, to the disadvantage of other
candidates who do not have the same chance of lending their faces
and names to endorse popular commercial products as image models.
Similarly, an individual intending to run for public of ce within the
next few months, could pay private corporations to use him as their
image model with the intention of familiarizing the public with his
name and image even before the start of the campaign period. This,
without a doubt, would be a circumvention of the rule against
premature campaigning: HCSEcI
Sec. 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 . . . 4
Article IX(C)(4) of the Constitution provides:
Sec. 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.
Under the abovementioned Constitutional provision, the COMELEC
is expressly authorized to supervise or regulate the enjoyment or
utilization of all media communication or
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information to ensure equal opportunity, time, and space. All these


are aimed at the holding of free, orderly, honest, peaceful, and
credible elections.
Neither is Section 32 of Resolution No. 6520 a gross violation of the
non-impairment clause. The non-impairment clause of the
Constitution must yield to the loftier purposes targeted by the
Government.5 Equal opportunity to proffer oneself for public of ce,
without regard to the level of nancial resources one may have at his
disposal, is indeed of vital interest to the public. The State has the
duty to enact and implement rules to safeguard this interest. Time
and again, this Court has said that contracts affecting public interest
contain an implied reservation of the police power as a postulate of
the existing legal order. This power can be activated at anytime to
change the provisions of the contract, or even abrogate it entirely, for
the promotion or protection of the general welfare. Such an act will
not militate against the impairment clause, which is subject to and
limited by the paramount police power. 6
Furthermore, this Court notes that the very contracts entered into by
petitioner provide that the endorser's photograph and image shall be
utilized in whatever form, mode and manner "in keeping with norms
of decency, reasonableness, morals and law; " 7 and in whatever
form, mode and manner not contrary to law and norms of decency," 8
and "in whatever form, mode and manner in keeping with norms of
decency, reasonableness, morals and law." 9
Petitioner also claims that Section 32 of Resolution No. 6520 is in
the nature of an ex post facto law. He urges this Court to believe that
the assailed provision makes an individual criminally liable for an
election offense for not removing such advertisement, even if at the
time the said advertisement was exhibited, the same was clearly
legal. Hence, it makes a person, whose name or image is featured in
any such advertisement, liable for premature campaigning under the
Omnibus Election Code.10 A close scrutiny of this rationale,
however, demonstrates its lack of persuasiveness. Section 32,
although not penal in nature, de nes an offense and prescribes a
penalty for said offense. Laws of this nature must operate
prospectively, except when they are favorable to the accused. It
should be noted, however, that the offense de ned in the assailed
provision is not the putting up of "propaganda materials such as
posters, streamers, stickers or paintings on walls and other materials
showing the picture, image or name of a person, and all
advertisements on print, in radio or on television showing the image
or mentioning the name of a person, who subsequent to the
placement or display thereof becomes a candidate for public of ce."
Nor does it prohibit or consider an offense the entering of contracts
for such propaganda materials by an individual who subsequently
becomes a candidate for public of ce. One de nitely does not commit
an offense by entering into a contract with private parties to use his
name and image to endorse certain products prior to his becoming a
candidate for public of ce. The offense, as expressly prescribed in the
assailed provision, is the non- removal of the described propaganda
materials three (3) days after the effectivity of COMELEC
Resolution No. 6520. If the candidate for public of ce fails to remove
such propaganda materials after the given period, he shall be liable
under Section 80 of the Omnibus Election Code for premature
campaigning. Indeed, nowhere is it indicated in the assailed
provision that it shall operate retroactively. There is, therefore, no ex
post facto law in this case.
Next, petitioner urges that Section 32 is a violation of the Fair
Elections Act. According to him, under this law, billboards are
already permitted as lawful election propaganda. He
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claims, therefore, that the COMELEC, in effectively prohibiting the


use of billboards as a form of election propaganda through the
assailed provision, violated the Fair Elections Act. Petitioner's
argument is not tenable. The Solicitor General rightly points out that
the assailed provision does not prohibit billboards as lawful election
propaganda. It only regulates their use to prevent premature
campaigning and to equalize, as much as practicable, the situation of
all candidates by preventing popular and rich candidates from
gaining undue advantage in exposure and publicity on account of
their resources and popularity. 11 Moreover, by regulating the use of
such election propaganda materials, the COMELEC is merely doing
its duty under the law. Under Sections 3 and 13 of the Fair Elections
Act, all election propaganda are subject to the supervision and
regulation by the COMELEC:
SECTION 3. Lawful Election Propaganda. Election propaganda,
whether on television, cable television radio, newspapers or any other
medium is hereby allowed for all registered political parties, national,
regional, sectoral parties or organizations participating under the party list
elections and for all bona de candidates seeking national and local elective
positions subject to the limitation on authorized expenses of candidates
and political parties observance of truth in advertising and to the
supervision and regulation by the Commission on Elections (COMELEC).
For the purpose of this Act, lawful election propaganda shall include:
3.1.
3.2. 3.3.
3.4. 3.5.
Pamphlets, lea ets, cards, decals, stickers or other written or printed
materials the size of which does not exceed eight and one half inches in
width and fourteen inches in length;
Handwritten or printed letters urging voters to vote for or against any
particular political party or candidate for public office;
Cloth, paper or cardboard posters whether framed or posted, with an area
not exceeding two (2) feet by three (3) feet, except that, at the site and on
the occasion of a public meeting or rally, or in announcing the holding of
said meeting or rally, streamers not exceeding three (3) feet by eight (8)
feet in size, shall be allowed: Provided, That said streamers may be
displayed ve (5) days before the date of the meeting or rally and shall be
removed within twenty- four (24) hours after said meeting or rally; DaIACS

Paid advertisements in print or broadcast media: Provided, That the


advertisements shall follow the requirements set forth in Section 4 of this
Act; and
All other forms of election propaganda not prohibited by the Omnibus
Election Code or this Act.
xxx xxx xxx
SECTION 13. Authority of the COMELEC to Promulgate Rules; Election
Offenses. The COMELEC shall promulgate and furnish all political
parties and candidates and the mass media entities the rules and
regulations for the implementation of this Act, consistent with the criteria
established in Article IX-C, Section 4 of the Constitution and Section 86 of
the Omnibus Election Code (Batas Pambansa Blg. 881).
Rules and regulations promulgated by the COMELEC under and by
authority of
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this Section shall take effect on the seventh day after their publication in at
least two (2) daily newspapers of general circulation. Prior to effectivity of
said rules and regulations, no political advertisement or propaganda for or
against any candidate or political party shall be published or broadcast
through mass media.
Violation of this Act and the rules and regulations of the COMELEC
issued to implement this Act shall be an election offense punishable under
the rst and second paragraphs of Section 264 of the Omnibus Election
Code (Batas Pambansa Blg. 881).
Finally, petitioner contends that Section 32 of COMELEC
Resolution No. 6520 is invalid because of overbreadth.
A statute or regulation is considered void for overbreadth when it
offends the constitutional principle that a governmental purpose to
control or prevent activities constitutionally subject to State
regulations may not be achieved by means that sweep unnecessarily
broadly and thereby invade the area of protected freedoms. 12
The provision in question is limited in its operation both as to time
and scope. It only disallows the continued display of a person's
propaganda materials and advertisements after he has led a certi cate
of candidacy and before the start of the campaign period. Said
materials and advertisements must also show his name and image.
There is no blanket prohibition of the use of propaganda materials
and advertisements. During the campaign period, these may be used
subject only to reasonable limitations necessary and incidental to
achieving the purpose of preventing premature campaigning and
promoting equality of opportunities among all candidates.
The provision, therefore, is not invalid on the ground of overbreadth.
WHEREFORE, the petition is DISMISSED and Section 32 of
COMELEC Resolution No. 6520 is declared valid and constitutional.
The prayer for a Temporary Restraining Order and/or a Writ of
Preliminary Injunction is hereby DENIED. No costs.
SO ORDERED.
Davide, Jr., C .J ., Quisumbing, Ynares-Santiago, Austria-Martinez,
Corona, Carpio Morales, Callejo, Sr., Tinga and Chico-Nazario, JJ .,
concur.
Puno, Panganiban, Sandoval-Gutierrez and Carpio, JJ ., are on
official leave. Footnotes
1. Acebedo Optical v. CA, 329 SCRA 314 (2000).

2. 207 SCRA 1 (1992).

3. Article X, Section 79(b) of the Omnibus Election Code.

4. Article X, Section 80 of the Omnibus Election Code.

5. Philippine Association of Service Exporters v. Drilon, 163 SCRA 386


(1988).

6. Caleon v. Agus Development Corporation, 207 SCRA 748 (1992),


citing Villanueva v. Castaeda, 154 SCRA 142 (1987).

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7. 8. 9. 10. 11. 12.


Petition, Annex B-2, rollo, pp. 6062. Petition, Annex B-1, rollo, pp. 57
59. Petition, Annex B, rollo, p. 56.
Petition, p. 14; rollo, p. 16.
Solicitor General's Comment, p. 28; rollo, p. 107. Adiong v. Comelec, 207
SCRA 712 (1992).
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EN BANC
[G.R. No. L-61998. February 22, 1983.]
ROGELIO DE JESUS, petitioner, vs. PEOPLE OF THE
PHILIPPINES, et al., respondents.
Jaime G. Fortes for petitioner.
The Solicitor General for respondents.
SYLLABUS
1. ADMINISTRATIVE LAW; COMELEC; CONSTITUTIONAL
GRANT OF POWER TO ENFORCE AND ADMINISTER LAWS
RELATIVE TO THE CONDUCT OF ELECTION AND TO
INVESTIGATE AND PROSECUTE ELECTION OFFENSES.
The grant to the COMELEC of the power, among others, to enforce
and administer all laws relative to the conduct of election and the
concomitant authority to investigate and prosecute election offenses
is not without compelling reason. The evident constitutional
intendment in bestowing this power to the COMELEC is to insure
the free, orderly and honest conduct of elections, failure of which
would result in the frustration of the true will of the people and make
a mere idle ceremony of the sacred right and duty of every qualified
citizen to vote. To divest the COMELEC of the authority to
investigate and prosecute offenses committed by public officials in
relation to their office would thus seriously impair its effectiveness in
achieving this clear constitutional mandate.
2. ID.; ID.; BESTOWAL UPON COMELEC AND COURT OF
FIRST INSTANCE TO INVESTIGATE, PROSECUTE AND HEAR
ELECTION OFFENSES, CATEGORICAL. From a careful
scrutiny of the constitutional provisions relied upon by the
Sandiganbayan, We perceive neither explicit nor implicit grant to it
and its prosecuting arm, the Tanodbayan, of the authority to
investigate, prosecute and hear election offenses committed by
public officers in relation to their office, as contradistinguished from
the clear and categorical bestowal of said authority and jurisdiction
upon the COMELEC and the courts of first instance under Sections
182 and 184, respectively, of the Election Code of 1978.
3. CONSTITUTIONAL LAW; STATUTORY CONSTRUCTION;
"AS MAY BE DETERMINED BY LAW," CONSTRUED. Under
the Constitution, the Sandiganbayan shall have jurisdiction over
". . .offenses committed by public officers . . . relation to their office
as may be determined by law" (Sec. 5, Art. XIII):while the Office of
the Tanodbayan shall "receive and investigate complaints relative to
public office." (Sec. 6, Art. XIII) The clause, "as may be determined
by law" is, to Our mind, imbued with grave import. It called for a
legislation that would define and delineate the power and jurisdiction
of both the Tanodbayan and the Sandiganbayan, as what, in fact had
been provided for in Presidential Decree Nos. 1606 and 1607,
creating the said entities. Thus, under Section 4 of P.D. No. 1606, the
Sandiganbayan shall have jurisdiction over: (c) Other crimes or
offenses committed by public officers or employees, including those
employed in government-owned or controlled corporations, in
relation to their office." Plainly, the above quoted paragraph (c) is but
a re-statement of the constitutional provision relating to the
Sandiganbayan. It is also to be noted that it is phrased in terms so
broad and general that it cannot be legitimately construed to vest said
entity with exclusive jurisdiction over election offenses
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committed by public officers in relation to their office. Neither can it


be interpreted to impliedly repeal the exclusive and original
jurisdiction granted by Section 184 of the Election Code of 1978 to
the court of first instance to hear and decide all election offenses,
without qualification as to the status of the accused.
4. ID.; STATUTORY CONSTRUCTION; SPECIFIC STATUTE
PREVAIL OVER GENERAL LAW. Apart from the fact that
repeals by implication are not favored, it is noted that while Section
184 of the Election Code deals specifically with election offenses,
Section 4(c) of P. D. 1606 speaks generally of "other crimes or
offenses committed by public officers. . . in relation to their office."
Needless to state, as between specific and general statute, the former
must prevail since it evinces the legislative intent more clearly than a
general statute does. And where a reconciliation between the statute
is possible, as in the case at bar, the former should be deemed an
exception to the latter.
DECISION
ESCOLIN, J : p

The question of law posed for determination in this petition for


review on certiorari of the resolution of the Sandiganbayan may be
propounded thus: Which of these entities have the power to
investigate, prosecute and try election offenses committed by a
public officer in relation to his office the Commission on
Elections and the Court of First Instance [now the regional trial
court] or the Tanodbayan and the Sandiganbayan?
After the local elections of January 18, 1980, Ananias Hibo, defeated
candidate of the Nacionalista Party for the office of mayor of the
Municipality of Casiguran, Sorsogon filed with the COMELEC a
complaint charging petitioner Rogelio de Jesus, then COMELEC
registrar of Casiguran, with violation of the 1978 Election Code.
Copy of the complaint was sent to the Ministry of Justice which
endorsed the same to the Provincial Fiscal of Sorsogon for
investigation. Noting that petitioner was being charged in relation to
his office, Asst. Fiscals Manuel Genova and Delfin Tarog, in their
capacity as deputized Tanodbayan prosecutors, conducted an
investigation. Thereafter Fiscal Genova issued a resolution, finding
the existence of a prima facie case against petitioner for violation of
section 89 1 and sub-sections [x] 2 and [mm] 3 of Section 178 of the
Election Code of 1978. After approval thereof by the Tanodbayan,
the following information, dated January 27, 1982, was filed before
the Sandiganbayan: llcd

"That on or about January 30, 1980 and sometime thereafter to February 6,


1980, in the Municipality of Casiguran, Province of Sorsogon, Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused while discharging the Office of the Election Registrar in the
Municipality of Casiguran, Province of Sorsogon, taking advantage and
abusing his official position, did then and there willfully, unlawfully and
feloniously by reason of his being a registrar knowingly registered persons
in order to vote on January 30, 1981 being an election day and at the same
time issuing identification cards during election day, thereby violating the
provision of the Election Code of 1978 and at the same time tampering
with the election reports by making it appear that 10,727 persons were the
total number of registered voters for the election of January 30, 1980,
when in truth and in fact the actual total number of voters as reported on
January 27, 1980 by the accused was only 10,532 but then changed to
10,727, thereby violating the
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provisions of Section '89' and Section. '178' under Article XVI specifically
sub- section 'X' and sub-section 'MM', which is a violation of the Election
Code of 1978 to the erosion of public faith and confidence."
The case, docketed as SB Criminal Case No. 5054, was raffled to the
Second Division of the Sandiganbayan.
Petitioner filed a motion to quash the information, contending that
neither the Tanodbayan nor the Sandiganbayan has the authority to
investigate, prosecute and try the offense.
xxx xxx xxx
[x] Any election registrar or any person acting in his behalf who
issues or causes the issuance of a voter's certificate of registration or
cancels or causes the cancellation thereof in violation of the provisions of
this Code.
xxx xxx xxx
[mm] Any person who, without authority, acts as, or assumes or
performs any function of a member of the election committee, or the board
of canvassers, or deputy of representative of the Commission."
charged in the information, the same being an election offense over
which the power to investigate, prosecute and try is lodged by law in
the COMELEC and the Court of First Instance. In its opposition, the
prosecution maintained the Tanodbayan's exclusive authority to
investigate and prosecute offenses committed by public of cers and
employees in relation to their of ce, and consequently, the
Sandiganbayan's jurisdiction to try and decide the charges against
petitioner.
The COMELEC, having learned of the pendency of the case, entered
its appearance as amicus curiae, and through its law department
manager, Atty. Zoilo Gomez, Jr., submitted a memorandum
supporting petitioner's stand. 4
On August 13, 1982, the Sandiganbayan issued the questioned
resolution denying the motion to quash. Petitioner's motion for
reconsideration was likewise denied. Hence, this petition for review
on certiorari.prLL

The legal question posed being one of first impression, this, Court
resolved to give due course to the petition, treating the same as an
original petition for certiorari under Rule 65 of the Rules of Court,
the proper mode by which relief from the resolution of the
Sandiganbayan could be obtained from this Tribunal.
Petitioner and respondents rely on different provisions of the 1973
Constitution as bases for their respective contentions. Petitioner
invokes Section 2 of Article XII[c] of the 1973 Constitution which
vests upon the COMELEC the power "to enforce and administer all
laws relative to the conduct of elections," and its implementing
legislation, Section 182 of the 1978 Election Code, which provides
the following:
"Section 182 Prosecution. The Commission shall, thru its duly
authorized legal officer, have the power to conduct preliminary
investigation of all election
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offenses punishable under this Code and to prosecute the same. The
Commission may avail of the assistance of other prosecuting arms of the
government."
Petitioner further cites Section 184 of the same Code which invests
the court of first instance with "exclusive original jurisdiction to try
and decide any criminal action or proceedings for violation of this
Code, except those relating to the offense of failure to register or
failure to vote which shall be under the jurisdiction of the city or
municipal courts. . . ." The Solicitor General supports the petitioner's
views. 5
Upon the other hand, the Sandiganbayan, in its resolution of August
13, 1982, 6 asserts its jurisdiction over Criminal Case No. 5054 on
the authority of Section 5, Article XIII of the Constitution, which
mandated the creation by the Batasan Pambansa of "a special court,
to be known as Sandiganbayan, which shall have jurisdiction over
criminal and civil cases involving graft and corrupt practices, and
such other offenses committed by public officers and employees,
including those in government-owned and controlled corporations, in
relation to their office as may be determined by law."
To the Sandiganbayan, as set forth in the challenged resolution, ". . .
the key phrase in the determination as to which of the Sandiganbayan
or the regular courts of first instance should take cognizance of an
election offense, is the phrase, 'in relation to their office'." Thus, it
would distinguish between election offenses committed by public
officers and employees in relation to their office and those committed
not in relation to their office, in this manner:
"If the election offense is committed by a public officer or employee NOT
in relation to their office, generally, jurisdiction will be assumed by the
regular courts. If, on the other hand, the offense was committed by a public
officer or employee in relation to their office, then there is no other tribunal
vested with jurisdiction to try such offense but this court, in consonance
with the mandate of the Constitution that the Sandiganbayan has
jurisdiction, 'over . . . offenses committed by public officers and employees
in relation to their office.'"
We find the position of the Sandiganbayan devoid of merit. Cdpr

The grant to the COMELEC of the power, among others, to enforce


and administer all laws relative to the conduct of election and the
concomittant authority to investigate and prosecute election offenses
is not without compelling reason. The evident constitutional
intendment in bestowing this power to the COMELEC is to insure
the free, orderly and honest conduct of elections, failure of which
would result in the frustration of the true will of the people and make
a mere idle ceremony of the sacred right and duty of every qualified
citizen to vote. To divest the COMELEC of the authority to
investigate and prosecute offenses committed by public officials in
relation to their office would thus seriously impair its effectiveness in
achieving this clear constitutional mandate.
From a careful scrutiny of the constitutional provisions relied upon
by the Sandiganbayan, We perceive neither explicit nor implicit grant
to it and its prosecuting arm, the Tanodbayan, of the authority to
investigate, prosecute and hear election offenses committed by
public officers in relation to their office, as contradistinguished from
the clear and categorical bestowal of said authority and jurisdiction
upon the COMELEC and the courts of first instance under Sections
182 and 184, respectively, of the Election Code of 1978.
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Under the Constitution, the Sandiganbayan shall have jurisdiction


over ". . . offenses committed by public officers . . . in relation to
their office as may be determined by law" [Sec. 5, Art. XIII]; while
the Office of the Tanodbayan shall "receive and investigate
complaints relative to public office." [Sec. 6, Art. XIII]. The clause,
"as may be determined by law" is, to Our mind, imbued with grave
import. It called for a legislation that would define and delineate the
power and jurisdiction of both the Tanodbayan and the
Sandiganbayan, as what, in fact had been provided for in Presidential
Decree Nos. 1606 and 1607, creating the said entities. Cdpr

Thus, under Section 4 of P.D. No. 1606, the Sandiganbayan shall


have jurisdiction over:
"[a]
[b]
Violations of Republic Act No. 3019, as amended, otherwise known as the
Anti-Graft and Corrupt Practices Act, and Republic Act No. 1379;
Crimes committed by public officers and employees, including those
employed in government-owned or controlled corporations, embraced in
Title VII of the Revised Penal Code, whether simple or complexed with
other crimes; and,
Other crimes or offenses committed by public officers or employees,
including those employed in government-owned or controlled
corporations, in relation to their office."
[c]
Plainly, the above quoted paragraph [c] is but a re-statement of the
constitutional provision relating to the Sandiganbayan. It is also to be
noted that it is phrased in terms so broad and general that it cannot be
legitimately construed to vest said entity with exclusive jurisdiction
over election offenses committed by public officers in relation to
their office. Neither can it be interpreted to impliedly repeal the
exclusive and original jurisdiction granted by Section 184 of the
Election Code of 1978 to the court of first instance to hear and decide
all election offenses, without qualification as to the status of the
accused.
Apart from the fact that repeals by implication are not favored, it is
noted that while Section 184 of the Election Code deals specifically
with election offenses, Section 4[c] of P.D. No. 1606 speaks
generally of "other crimes or offenses committed by public
officers . . . in relation to their office." Needless to state, as between
specific and general statute, the former must prevail since it evinces
the legislative intent more clearly than a general statute does. 7 And
where a reconciliation between the statute is possible, as in the case
at bar, the former should be deemed an exception to the latter. 8
The same principle of statutory construction should be applied with
respect to the powers vested upon the COMELEC and the
Tanodbayan in so far as election offenses are concerned. LLpr

Moreover, as aptly observed by the COMELEC as well as the


Solicitor General, splitting the
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jurisdiction over election offenses would serve no beneficial purpose


but would rather spawn much controversy "complaints about
unequal protection, about inconsistent decisions, etc. (which are) not
conducive to a fair and speedy administration of justice." [p. 17,
Comment, Solicitor General].
WHEREFORE, the resolution of the Sandiganbayan Second
Division dated August 13, 1982 is hereby set aside and Criminal
Case No. 5054, entitled "People of the Philippines versus Rogelio de
Jesus" is ordered dismissed. The COMELEC is hereby directed to
forthwith conduct an investigation, and if the evidence so warrants,
to prosecute the complaint against petitioner before the proper court
of first instance. No costs.
SO ORDERED.
Fernando, C.J., Makasiar, Concepcion Jr., Guerrero, De Castro,
Melencio-Herrera, Plana, Vasquez, Relova and Gutierrez, Jr., JJ.,
concur.
Teehankee, J., reserves his note.
Aquino, J., on leave.
Abad Santos, J., I reserve my vote. Footnotes
1. Section 89 of the 1978 Election Code provides:
"Sec. 89. Certified list of voters. Not later than three days before
the day of the election, the election registrar and the members of the
citizens election committee shall prepare and certify, in three copies,
a complete list of voters for each voting center containing the names,
in alphabetical order, and addresses of all voters registered in the city,
municipality or municipal district based on the approved applications
in the books of voters. One copy shall be delivered to the election
committee together with the books of voters for use on election day,
one copy shall be delivered to the barangay captain concerned who
shall inform the voters of their voting center, and the third copy shall
be retained by the election registrar."

2. Sub-sections "x" and "mm" of Section 178 of the 1978 Election Code
read as follows: "Sec. 178. Prohibited Acts. The following shall
be guilty of an election offense:

3. Sub-sections "x" and "mm" of Section 178 of the 1978 Election Code
read as follows: "Sec. 178. Prohibited Acts. The following shall
be guilty of an election offense:

4. Annex "F", p. 47, Rollo.

5. Solicitor General's Comment dated January 11, 1983.

6. p. 124, Rollo.
7. Lacsamana, vs. Baltazar, 92 Phil. 32; Wilhemsen vs. Baluyot, 83
SCRA 38.

8. Lichauco vs. Apostol, 44 Phil. 138; Butuan Saw Mill Inc. vs. City of
Butuan, et al, 16 SCRA 755.

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FIRST DIVISION
[G.R. No. 107979. June 19, 1995.]
DANILO F. GATCHALIAN , petitioner, vs. COURT OF APPEALS,
JUDGE IBARRA S. VIGILIA (BRANCH 17, RTC of BULACAN)
and GREGORIO N. ARUELO, JR., respondents.
SYLLABUS
1. ELECTION LAW; ELECTION PROTEST; PERIOD TO FILE
PETITION THEREFOR; SUSPENDED BY THE FILING OF PRE-
PROCLAMATION CASE. Gatchalian claims that the election
protest was led only on June 2, 1992 or nineteen days after his
proclamation on May 13, 1992 as Vice Mayor of Balagtas, Bulacan
in violation of Section 3, Rule 35 of the COMELEC Rules of
Procedure. Petitioner's contention is without merit . Said Section 3,
Rule 35 provides as follows: "Period to le petition. The petition
shall be led within ten (10) days following the date of proclamation
of the results of the election." Under the above-cited section, Aruelo
had ten days from May 13, 1992 to le an election protest. Instead of
ling an election protest, Aruelo led with the COMELEC a pre-
proclamation case against Gatchalian on May 22, 1992, or nine days
after May 13, 1992. The ling of the pre-proclamation case suspended
the running of the period within which to le an election protest or
quo warranto proceedings (B.P. Blg. 881, Sec. 248). Aruelo received
the COMELEC resolution denying his pre-proclamation petition on
June 22, 1992. Hence, Aruelo had only one day left after June 22,
1992 within which to le an election protest. However, it will be noted
that Aruelo led on June 2, 1992 with the trial court an election protest
ex abudante cautela.
2. ID.; ID.; SHALL BE DISMISSED FOR FAILURE TO PAY
FILING FEE. Under Section 9, Rule 35 of the COMELEC Rules
of Procedure, a protestant has to pay the following: a) ling fee of
P300.00; b) legal research fee; and c) additional ling fee if there be a
claim for damages or attorney's fees. Aruelo, upon ling the election
protest with the trial court on June 2, 1992, paid the following
amounts:
O.R. No. 2084419-R
Amount
P450.00 Docket Fee-Judiciary Development Fund
8760129S 150.00 1407317 10.00 1406063 5.60 2084420 46.00

General Fund Legal Research


Summons Fee Summons Fee

From the above itemization, it is clear that Aruelo failed to pay the
ling fee of P300.00 for the election protest prescribed by the
COMELEC Rules of Procedure. The amount of P600.00, consisting
of P450.00 (Judiciary Development Fund) and P150.00 (General
Fund), refers to the docket fee for Aruelo's claim for attorney's fees
in the amount of P100,000.00 in accordance with the schedule
provided for in Section 7(a), Rule 141 of the Revised Rules of Court
(Cf. Rule 35, Section 9, third paragraph, COMELEC Rules of
Procedure). The trial court cannot simply deduct from the P600.00
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the ling fee of P300.00 because the amount is speci cally allocated by
law (P.D. No. 1949) and by Supreme Court Administrative Circular
No. 31-90 dated October 15, 1990 to the Judiciary Development
Fund and the General Fund. A separate set of receipts is used for the
collection of docket fees. It is the payment of the ling fee that vests
jurisdiction of the court over the election protest, not the payment of
the docket fees for the claim of damages and attorney's fees. For
failure to pay the ling fee prescribed under Section 9, Rule 35 of the
COMELEC Rules of Procedure, the election protest must be
dismissed. Under Section 9, Rule 35 of the COMELEC Rules of
Procedure, "[n]o protest . . . shall be given due course without the
payment of a ling fee in the amount of three hundred pesos (P300.00)
for each interest." In Pahilan v. Tabalba, 230 SCRA 205 (1994), we
had occasion to rule as follows: "In the case now before us, and in
election cases in general, it is not the amount of damages, if any, that
is sought to be recovered which vests in the courts the jurisdiction to
try the same. Rather, it is the nature of the action which is
determinative of jurisdiction."
DECISION
QUIASON, J : p

This is a petition for certiorari and prohibition to set aside the


Decision of the
Court of Appeals in CA-G.R. SP No. 28621.
I
Danilo F. Gatchalian and Gregorio N. Aruelo, Jr. were rival
candidates for the office of the Vice Mayor of Balagtas, Bulacan in
the May 11, 1992 elections.
On May 13, 1992, the Municipal Board of Canvassers proclaimed
Gatchalian as the duly elected Vice Mayor of Balagtas, Bulacan by a
margin of four votes.
On May 22, 1992, Aruelo led with the Commission on Elections
(COMELEC) a veri ed petition docketed as SPC No. 92-130 seeking
to annul the proclamation of Gatchalian.
On June 2, 1992, Aruelo led with the Regional Trial Court, Branch
17, Malolos, Bulacan, an election protest docketed as Civil Case No.
343-M-92. In said election protest, Aruelo alleged that the protest
was led ex abudante cautela, there being a pending pre-proclamation
case before the COMELEC. It likewise contained a claim for
damages in the amount of P100,000.00 by way of attorney's fees. On
the same date, Aruelo paid the amount of P610.00 as filing fees.
On June 10, 1992, Gatchalian received an amended summons from
the clerk of court of the trial court, giving him five days within which
to answer.
Instead of filing an answer, Gatchalian filed a motion to dismiss on
June 15, 1992 on the following grounds: (a) the petition was led out
of time; (b) there was a pending pre-proclamation case before the
COMELEC, and hence the protest was premature; and (c) Aruelo
failed to pay the prescribed filing fees and cash deposit upon filing of
the petition. Aruelo led an opposition to the motion to dismiss, to
which Gatchalian led a reply.
Meanwhile, on June 17, 1992, the COMELEC denied Aruelo's pre-
proclamation case.
In its Order dated July 10, 1992, the trial court denied Gatchalian's
motion to
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dismiss and ordered him to le his answer within ve days from notice
thereof. Gatchalian's motion for reconsideration was denied on
August 3, 1992.
On August 6, 1992, Gatchalian led before the Court of Appeals, a
petition for certiorari (CA -G.R. SP No. 28621) alleging grave abuse
of discretion on the part of the trial court in denying petitioner's
motion to dismiss as well as his motion for reconsideration.
On November 24, 1992, the Court of Appeals rendered its decision
concluding that there was no grave abuse of discretion on the part of
the trial court in denying Gatchalian's motion to dismiss. It further
ruled that the election protest was timely led and that Gatchalian's
averment that the election protest should be dismissed on the ground
of non-payment of filing fee was devoid of merit.
Hence, this petition.
II
Gatchalian claims that the election protest was led only on June 2,
1992 or nineteen days after his proclamation on May 13, 1992 as
Vice Mayor of Balagtas, Bulacan in violation of Section 3, Rule 35
of the COMELEC Rules of Procedure.
Petitioner's contention is without merit . Said Section 3, Rule 35
provides as follows:
"Period to le petition. The petition shall be led within ten (10) days
following the date of proclamation of the results of the election."
Under the above-cited section, Aruelo had ten days from May 13,
1992 to le an election protest. Instead of ling an election protest,
Aruelo led with the COMELEC a pre-proclamation case against
Gatchalian on May 22, 1992, or nine days after May 13, 1992. The
ling of the pre-proclamation case suspended the running of the
period within which to le an election protest or quo warranto
proceedings (B.P. Blg. 881, Sec. 248). Aruelo received the
COMELEC resolution denying his pre-proclamation petition on June
22, 1992. Hence, Aruelo had only one day left after June 22, 1992
within which to le an election protest. However, it will be noted that
Aruelo led on June 2, 1992 with the trial court an election protest ex
abudante cautela.
Gatchalian further contends that the Court of Appeals should have
dismissed the election protest for failure of Aruelo to pay the ling fee
of P300.00 as required by Rule 35, Section 9 of the COMELEC
Rules of Procedure.
This contention of petitioner is meritorious.
Section 9, Rule 35 of the COMELEC Rules of Procedure provides:
"Filing fee. No protest, counter-protest, or protest-in-intervention shall
be given due course without the payment of a ling 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.
If a claim for damages and attorney's fees are set forth in a protest,
counter- protest or protest-in-intervention, an additional ling fee shall be
paid in accordance with the schedule provided for in the Rules of Court in
the Philippines."
Under said Rule, a protestant has to pay the following: a) ling fee of
P300.00; b) legal research fee; and c) additional ling fee if there be a
claim for damages or
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attorney's fees.
Aruelo, upon ling the election protest with the trial court on June 2,
1992, paid the following amounts:
O.R. NO. 2084419-R
Amount
P450.00 Docket Fee-Judiciary Development Fund
8760129S 150.00 1407317 10.00 1406063 5.60 2084420 46.00

General Fund Legal Research


Summons Fee Summons Fee

From the above itemization, it is clear that Aruelo failed to pay the
ling fee of P300.00 for the election protest prescribed by the
COMELEC Rules of Procedure.
The amount of P600.00, consisting of P450.00 (Judiciary
Development Fund) and P150.00 (General Fund), refers to the
docket fee for Aruelo's claim for attorney's fees in the amount of
P100,000.00 in accordance with the schedule provided for in Section
7(a), Rule 141 of the Revised Rules of Court (Cf. Rule 35, Section 9,
third paragraph, COMELEC Rules of Procedure).
The trial court cannot simply deduct from the P600.00 the ling fee of
P300.00 because the amount is speci cally allocated by law (P.D. No.
1949) and by Supreme Court Administrative Circular No. 31-90
dated October 15, 1990 to the Judiciary Development Fund and the
General Fund. A separate set of receipts is used for the collection of
docket fees.
It is the payment of the ling fee that vests jurisdiction of the court
over the election protest, not the payment of the docket fees for the
claim of damages and attorney's fees. For failure to pay the ling fee
prescribed under Section 9, Rule 35 of the COMELEC Rules of
Procedure, the election protest must be dismissed. Under Section 9,
Rule 35 of the COMELEC Rules of Procedure, "[n]o protest . . .
shall be given due course without the payment of a ling fee in the
amount of three hundred pesos (P300.00) for each interest."
In Pahilan v. Tabalba, 230 SCRA 205 (1994), we had occasion to
rule as follows:
"In the case now before us, and in election cases in general, it is not the
amount of damages, if any, that is sought to be recovered which vests in
the courts the jurisdiction to try the same. Rather, it is the nature of the
action which is determinative of jurisdiction."
WHEREFORE, the petition is GRANTED. The decision of the Court
of Appeals in CA-G.R. No. SP No. 28621 is SET ASIDE. Civil Case
No. 343-M-92 of the Regional Trial Court, Branch 17, Malolos,
Bulacan is DISMISSED.
SO ORDERED.
Padilla and Bellosillo, JJ., concur. Davide, Jr., concurs in the result.
Kapunan, J., took no part.
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EN BANC
[G.R. No. L-25444. January 31, 1966.]
WENCESLAO RANCAP LAGUMBAY, petitioner, vs. THE
COMMISSION ON ELECTIONS and CESAR CLIMACO,
respondents.
Wenceslao R. Lagumbay for the petitioner. Ambrosio Padilla for the
respondents.
SYLLABUS
1. ELECTION LAWS; JURISDICTION; ELECTION FRAUDS.
Frauds in the holding of election should be settled by the
corresponding courts or electoral tribunals where testimonial or
documentary evidence is necessary; but where the fraud is so
palpable from the return itself, there is no reason to give it prima
facie value.
2. ID.; ID.; FALSE OR FABRICATED RETURNS; DUTY OF THE
COMMISSION ON ELECTIONS TO REJECT THEM. Where
the returns were obviously false or fabricated, the Commission on
Elections has the power and duty to reject them.
DECISION
BENGZON, J : p

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 vs. 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
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precincts."
We opined that the election result in said precincts as reported, was
utterly improbable and clearly incredible. For it is not likely, in the
ordinary course of things, that all the electors of one precinct would,
as one man, vote for all the eight candidates of the Liberal Party,
without giving a single vote to one of the eight candidates of the
Nacionalista Party. Such extraordinary coincidence was quite
impossible to believe, knowing that the Nacionalista Party had and
has a nationwide organization, with branches in every province, and
was, in previous years, the party in power in these islands.
We also know from our experience in examining ballots in the three
Electoral Tribunals (Presidential, Senate, and House) that a large
portion of the electors do not fill all the blanks for senators in their
ballots. Indeed, this observation is confirmed by the big differences
in the votes received by the eight winning senators in this as well as
in previous national elections;2 almost a million votes between the
first place and the eight. Furthermore, in 1965, the total number of
electors who cast their votes was 6,833,369 (more or less). If every
voter had written eight names on his ballot, the total number of votes
cast for all the candidates would be that number multiplied by 8,
namely 54,666,952. But the total number of votes tallied for the
candidates for senator amounted to 49,374,942 only. The difference
between the two sums represents the number of ballots that did not
contain eight names for senators. In other words, some 5 million
ballots did not carry eight names. Of course, this is a rough estimate,
because some ballots may have omitted more names, in which case,
the number of incomplete ballots would be less. But the general idea
and the statistical premise is there.
The same statistical result is deducible from the 1963 election data:
total number of electors who voted, 7,712,019; if each of them
named eight senators, the total votes tallied should have been
61,696,152, and yet the total number tallied for all the senatorial
candidates was 45,812,470 only. A greater number of incomplete
ballots.
It must be noted that this is not an instance wherein one return gives
to one candidate all the votes in the precinct, even as it gives exactly
zero to the other. This is not a case where some senatorial candidates
obtain zero exactly, while some others receive a few scattered votes.
Here, all the eight candidates of one party garnered all the votes,
each of them receiving exactly the same number; whereas all the
eight candidates of the other party got precisely nothing.
The main point to remember is that there is no blockvoting
nowadays.
What happened to the vote of the Nacionalista inspector? There was
one in every precinct. Evidently, either he became a traitor to his
party, or was made to sign a false return by force or other illegal
means. If he signed voluntarily, but in breach of faith, the
Nacionalista inspector betrayed his party; and, any voting or
counting of ballots therein, was a sham and a mockery of the national
suffrage.
Hence, denying prima facie recognition to such returns on the ground
that they are manifestly fabricated or falsified, would constitute a
practical approach to the Commission's mission to insure free and
honest elections.
In Mitchell vs. Stevens, supra, the returns showed a noticeable
excess of votes over the number of registered voters, and the court
rejected the returns as obviously "manufactured". Why? The excess
could have been due to the fact that, disregarding all pertinent data,
the election officers wrote the number of votes their fancy dictated;
and so
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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.
Of course we agree that frauds in the holding of the election should
be handled and finally settled by the corresponding courts or
electoral tribunals. That is the general rule, where testimonial or
documentary evidence, is necessary; but where the fraud is so
palpable from the return itself (res ipsa loquitur the thing speaks
for itself), there is no reason to accept it and give it prima facie
value.
At any rate, fraud or no fraud, the verdict in these fifty precincts may
ultimately be ascertained before the Senate Electoral Tribunal.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.
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 Mitchel decision, which is realistic and commonsensical 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
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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"
or 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, JJ., concur.
Regala, Bautista Angelo, Zaldivar and Bengzon, JJ., dissent.

Separate Opinions
BARRERA, J., concurring:
I vote with the majority, for, as the dissenting opinion of Mr. Justice
Jose P. Bengzon points out, the line must be drawn somewhere and
because I believe the Chief Justice has traced it at the point where it
can at all be reasonably placed, where logic and experience both
direct it to be. I take it that Justice Bengzon does not question the
logic of the prevailing doctrine that the board of canvassers can
legally discard "obviously manufactured" returns as he accepts the
exercise of that power where the returns report a number of votes
cast in excess of the number of registered voters. He merely objects
to the extension of that power to the situation obtaining in the present
case where in more than 50 precincts in the same provinces where
our experience proves election has never been without extensive
frauds, the returns disclose uniformly 100% voting, 100% in favor of
100% of the candidates of one party and 100% zero for 100% of the
candidates of the other party. 'And the basis of his objection is that
this result is not physically or theoretically impossible and could
possibly re ect the actual voting, fraudulently as it may be, the
solution of which he states, lies with the Electoral tribunal. My
answer is, if physical or theoretical impossibility is to be the
criterion, then returns evincing greater number of votes cast than
registered voters should not also be discarded as it is theoretically
possible that with our experience regarding ying voters, ballots could
possibly be cast in excess of the registered voters, which constitutes
likewise, a fraud that could be corrected in an election contest. Then
where shall we draw the line? or shall we draw no line at all as
insinuated by Justice Regala in his, own dissenting opinion, and
leave all questions relating to returns, to the corresponding electoral
tribunal?
Both dissents express fear as to the consequences of the majority
opinion, suggesting that the board of canvassers could become the
tyrannical arbiters of the result of elections. In my opinion, if the line
is not drawn as it has been done in the majority opinion, there would
be the greater evil of the tyranny of the board of inspectors who
prepare the returns in the hundreds of thousands of electoral
precincts, who, because of their number and their widespread
distribution all over the country, are more prone to political influence
and more difficult to subject to scrutiny and supervision of those
entrusted by law to
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preserve clean, honest and free elections. As between the two
tyrannies, possible if we adopt a too sanctimonious regard for the
election returns, that of the board of canvassers, less numerous in
number and composed of sworn public officials, seems to be the less
pervasive and pernicious as the perpetuators are likely to be more
amenable to reason, supervision and control.
BENGZON, J. P., J., dissenting:
As once observed by a renowned jurist: "In law, as in life, lines have
to be drawn. But the fact that a line has to be drawn somewhere does
not justify its being drawn anywhere. The line must follow some
direction of policy, whether rooted in logic or experience."1 For me,
the majority view in the case at bar, by adopting the criterion of
"statistical probabilities" in drawing the line between returns
"obviously manufactured" and returns not of that kind, has drawn a
shifting, movable and uncertain line, liable to run without direction
of policy, without regard to logic and contrary to experience.
Furthermore, in my view, the majority would, against the provision
of our Constitution, share the Senate Electoral Tribunal's exclusive
power to judge all contests relating to the election, returns and
qualifications of Senators. For it has in effect exercised, and
authorized boards of canvassers likewise to exercise, the power to
annul votes on the ground of fraud or irregularity in the voting a
power that I consider alien to the functions of a canvassing body and
proper only to a tribunal acting in an electoral protest. For these
reasons, I am impelled to respectfully express the following
dissenting opinion, in accordance with the reservation made at the
time the resolution of this Court was adopted.
The present suit is clearly a petition for certiorari under Rule 65, not
an appeal by certiorari under Rule 43 of the Rules of Court. For its
ground it alleges "a grave abuse of discretion amounting to excess of
jurisdiction".2 Such a ground is proper only in a petition for certiorari
as a special civil action and not as an appeal. For that matter, the
petition does not cavil the fact that it seeks an extraordinary writ. It
states that "Petitioners have no other plain, speedy and adequate
remedy in the ordinary course of law"3 and does not even bother to
indicate that a notice of appeal has been filed with the Commission
on Elections, as required by Section 2 of Rule 43 in cases of appeals.
It is captioned "For Certiorari and Prohibition".4 Needless to say,
prohibition cannot be joined with appeal, for such a remedy can be
resorted to only where appeal does not lie. The Supreme Court,
under the Constitution, has no general powers of supervision over the
Commission on Elections except those specifically granted by the
Constitution, that is to review the decisions, orders and rulings of the
Commission which may be brought up properly before the Supreme
Court (Nacionalista Party vs. De Vera, 85 Phil. 126, 129). In this
instance, no appeal from the decision of the Commission has
properly been taken to this Court.
As raised by the pleadings, therefore, the point at issue is this: Did
the Commission on Elections gravely abuse its discretion in finding
the election returns in question to be genuine?
As a board of canvassers with respect to the election of Senators,
pursuant to Section 166 of the Revised Election Code, the
Commission on Elections is a ministerial body, duty- bound to accept
the returns transmitted to it in due form, and to ascertain and declare
the result only as it appears therefrom (Nacionalista Party vs.
Commission on Elections, 85 Phil. 149). A prerequisite to the
performance of said ministerial functions, however, is the power to
determine the genuineness of the returns. For this reason, as a step
sine qua non
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to the fulfillment of its proper task, it can also exercise the quasi-
judicial power of deciding whether a particular return is genuine.
Nonetheless, in so deciding, it cannot go behind the returns. In short,
the genuineness of the returns as far as canvassing is concerned
is to be determined solely from the face of said returns. The
rulings to this effect are clear:
"It is settled beyond controversy that canvassers cannot go behind the
returns. The returns provided for by law are the sole and exclusive
evidence from which a canvassing board or official can ascertain and
declare the result. The canvassers are not authorized to examine or
consider papers or documents which are transmitted to them with the
returns, or as returns, but which under the statutes do not constitute part of
the returns." (Dizon vs. Provincial Board of Canvassers, 52 Phil. 47, 58.
See also 29 C.J.S. 659; McCrary on Elections, pp. 198-199.)
So it is that all the instances petitioner cites of a board of canvassers
being held justified in refusing to count a return, involve returns that
can be pronounced non-genuine simply on the basis of what appears
therefrom. For purposes of this case, the noteworthy example is that
mentioned in Nacionalista Party vs. Commission on Elections, supra:
"where the returns are obviously manufactured, as where they show
a great excess of votes over what could legally have been cast".
For me, there is no doubt that in such a case the returns betray their
falsity by their very contents. They set forth as the result of the
voting in a precinct something which can be seen to be false without
having to examine anything but the returns themselves. And the
reason is simple. It is impossible for the votes to have in fact been as
the returns assert them.
Petitioner would however extend the same treatment to returns where
100 per cent voting is shown and the candidates of one party are
credited with all such votes. In my opinion the situation is radically
different. For this time it is impossible for such a voting to have in
fact taken place. Consequently, it is possible for the returns to be in
fact genuine.
The discussion by the majority opinion of "statistical probabilities"
does not establish that the votes inside the ballot boxes are not or
cannot be as the returns say they are. Resort to the ballot boxes
themselves would be needed to prove that the returns are false, that
is, that in fact the votes are not as the returns state them to be.
A conclusion, then, that the aforesaid returns are obviously
manufactured, does not necessarily follow from the 100 per cent
voting that they set forth. Appreciation of probabilities, statistical or
otherwise, can at most only classify such voting as highly
improbable.
Stated otherwise, when the point at issue is whether it is possible or
impossible, the Commission on Elections or the Supreme Court is
empowered to find that a return is obviously manufactured, in that it
states what is impossible. Not so where the question is whether it is
probable or improbable, no matter the degree of improbability, in
which case the subject matter pertains to the Electoral Tribunal. In
the former, one deals with a certainty, namely, the impossibility. In
the latter, one is faced with something debatable, namely, probability
or improbability, which necessarily entails an element of doubt, and
to resolve said doubt perforce one has to open the ballot boxes. As
long as the voting stated in them is a possibility, returns in due form
must be accepted by the board of canvassers.
It is true that chances are that in cases of 100 percent voting, fraud,
intimidation or other
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violations of the Election Law obtained. But said irregularities could


have been in the conduct of the elections itself. From the face of the
returns alone the irregularity cannot be fixed on said returns. So the
board of canvassers soundly exercised its discretion in accepting said
returns and leaving the deeper inquiry into the presence of fraud or
other irregularities, not shown on the face of the returns, to the
proper forum, namely, the Senate Electoral Tribunal. Said tribunal is
under the Constitution "the sole judge of all contests relating to the
election, returns and qualifications" of Senators (Art. VI, See. II,
Constitution of the Philippines).
Stated differently, it does not strike me as contrary to all "statistical
probabilities" for the votes in some precincts to be what the returns
in question state them. For other factors, such as fraud or irregularity
in the voting factors which "statistical probabilities" ought
likewise to reckon with could have been present and responsible
for the straight voting therein. In such event, the fraudulent and
irregular voting notwithstanding, the returns showing the straight
voting are genuine, not manufactured, since they but faithfully reflect
the count of votes inside the ballot boxes. For the annulment of those
votes, no matter how detestable the fraud or irregularity vitiating
them, the remedy is not to reject the returns for being obviously
manufactured, which they are not, resulting in this case in the
disenfranchisement of the affected voters in the three provinces
without due process of law. The remedy is to file a protest with the
proper Electoral Tribunal and there raise the issue of fraud in the
voting, where it is exclusively cognizable.
The set-up in our system of determining the results of elections of
Senators, places the acceptance and counting of the returns on the
Commission on Elections, subject to correction by the Supreme
Court in case of grave abuse of discretion or error of law, and the
decision of electoral protests on the Senate Electoral Tribunal.
Speaking again of drawing lines, I hold the view that the
jurisdictional line between the Senate Electoral Tribunal and other
bodies, such as the Supreme Court or the Commission on Elections,
should not be plotted along "statistical probabilities". For that is not
where the Constitution draws the line. It constitutes the Senate
Electoral Tribunal the SOLE judge of ALL contests relating to the
ELECTION, RETURNS, and qualifications of Senators, without
regard to whether the voting subject matter of said contests is or is
not contrary to all "statistical probabilities" "SOLE JUDGE", "ALL
CONTESTS" and "RELATING TO . . . RETURNS" are the
meaningful KEY PHRASES in the Constitution.
Following "statistical probabilities" as the norm for judging the
genuineness of election returns is, as aforesaid, drawing a line
without direction of a policy rooted in logic or experience. Not in
logic, because the consideration that fraud or irregularity attended an
election which results in straight voting, only strengthens the view
that their corresponding returns accurately stated such voting and are
therefore genuine. Not in experience, for straight and one hundred
per cent voting has in fact occurred before, in other places. It
occurred among others in at least 4 precincts of 3 municipalities in
Cavite during the last elections.5 It may indeed be irregular, but it is
not impossible. This is not to give a stamp of approval on any of the
so-called controlled voting. In my view such voting is derogatory of
the freedom that underlies our democracy. The point, however, is that
in regard to such evils the forum of solution lies elsewhere.
Assuming that the instant suit is but an appeal from a decision of the
Commission on Elections, the result would be the same. Although
the issue would be not grave abuse of discretion but mere error of
law, I do not think the Commission on Elections erred on a point of
law in finding genuine the returns with the aforesaid 100 per cent
voting. There is
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no provision of law repugnant to such a finding. And this Court, in


passing on appeal upon the decision of the board of canvassers,
cannot depart from the rule that the genuineness of election returns,
for purposes of inclusion in the canvass is to be judged solely from
what appears on their face. Applying such a rule, the returns in
question cannot be struck out as false or obviously manufactured. At
least, respondent Commission on Elections cannot be said to have
erred in not so striking them out.
Nonetheless, even as I disagree as to procedure and choice of means,
I fully agree with the desire of the majority to purify the elections.
Such a noble intention and such alone, I do not hesitate to say, is
behind the decision of this Court. In a deliberative body like this
Court, the right to dissent is indeed essential, but I feel it is also the
privilege and, at times like this, the duty of a dissenting member to
stress the fact that the difference of opinions, does not detract from
an ideal firmly, and with devotion, held in common.
As one, therefore, who shares their, ideals and realizes that theirs is
the purest of motives, I disagree with the majority in the pursuit of
these ends. The intensity of the zeal shown by the majority to
achieve a laudable purpose has taken them beyond the limits set by
our Constitution. And sublime though the objective is, I cannot go
that far to attain it.
I therefore sustain the view that the decision of the Commission on
Elections accepting and counting the returns in question should not
be disturbed herein and that the remedy is electoral protest. Between
the lines, I could see again the good intention of the majority
opinion. Subscribe to the aim of the majority view to strengthen our
democracy we should, and I do, as long as we remain within the
bounds laid down by law. For "we cannot transcend the law to foster
the reign of law".6 The realization of an eminent purpose, such as
preserving democracy, must still be done through proper channels
ordained by law. The fact that an electoral protests is often decided
so late that the people's choice could not even serve them is a
problem which, I agree with the majority, needs to be solved; but it is
not for the Supreme Court to solve, because the Supreme Court is not
a policy-making body in our government. It is indeed one of the
three pillars of our Republic, but each of said pillars has its own
sphere of action. In the name of purifying elections, this Court
cannot go against the policy laid down by statutes and the
Constitution.
Finally, this Court has frowned upon what came to be popularly
known as "short cuts" in the discharge of powers or duties authorized
or required by law.7 The decision of the majority from which I
dissent, notwithstanding its praiseworthy intention, tends to sanction
a short cut of the nature hitherto frowned upon.
I therefore dissent from the decision of the majority. Bautista Angelo
and Zaldivar, JJ., concur.
REGALA, J., dissenting:
I concur in the dissenting opinion of Justice Bengzon but I wish to
add a few words.
In the first place, I cannot subscribe to the majority; opinion that
"obviously manufactured" returns may be annulled by this Court.
With respect to the contested returns, it is my view that the Senate
Electoral Tribunal, and only that body, has the right and the
jurisdiction to exercise that power. Our Constitution has been most
careful to provide that the said Tribunal shall be "the sole judge of all
contests relating to the election, returns and qualifications" of
senators (Article VI, see. II). The assumption by this Court of the
power
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that it did in this case, in effect amends the aforementioned provision


to provide that the Senate Electoral Tribunal shall be "the judge of
some contests relating to the election, returns and qualifications" of
Senators. The result is that the word "all" has been reduced to just
"some" by this Court as it excludes therefrom such returns as are, in
the language of the decision, "obviously manufactured."
Of course, the majority opinion attempts to deny the above by
rationalizing that "the verdict in these fifty precincts may ultimately
be ascertained before the Senate Electoral Tribunal. All we hold now,
is that the returns show 'prima facie' that they do not reflect true and
valid reports of regular voting. The contrary may be shown by
candidate Climaco in the corresponding election protest."
In the second place, the majority opinion has rejected fifty (50)
election returns covering fifty (50) different precincts spread over
three provinces in favor of Climaco on the ground that they are
"obviously manufactured," contrary to the finding made by the
Commission on Elections that the said election returns are "regular
and genuine returns," a finding which the Commission on Elections
made after examination and verification of the returns in the presence
of parties concerned and their counsel.
The majority opinion has failed to lay down any standard as to what
returns are to be considered as statistically "probable" or
"improbable". The judgment in that regard, it would seem, has been
left solely to the boards of canvassers. I am profoundly alarmed that
this void in the majority opinion and this failure to set the minimum
element for what may be deemed as "statistically improbable,"
leaving the matter completely at the hands of partisan or politically
influenced boards of canvassers, will only allow for the commission
of far more brazen and far more barefaced frustration of the popular
will than has ever been experienced by this country.
What right has this Court to determine for the Senate Electoral
Tribunal the "prima facie" value of the returns which it must go
over? Why must this Court impose upon the said Tribunal its own
judgment as to what is prima facie "statistically probable or
improbable."?
Electoral protests may, indeed, take the whole term of the office
contested to decide. The victory of the winning candidate may after
all be an empty one. But that is no reason for this Court to take a step
not allowed by the Constitution. This Court, we have need to remind
ourselves I think, is not the repository of remedies for all our ills.
And not even the best of intention and the noblest of motives will
justify it from assuming a power it is not given under the Charter.
For these, as well as the reasons given in the dissenting opinion of
Justice Bengzon, I would vote for granting of the motion for
reconsideration filed by the attorney for Climaco.
Bautista Angelo, J., concurs. Footnotes
1. 23 Kans. 456, 33 Am. Rep. cited in 18 Am. Rep. and Nacionalista
Party vs. Commission on Elections.

2. The eight received 3,629,834; 3,472,689; 3,463,159; 3,234,966;


3,191,000; 3,037,666;

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3,014,618; 2,972,525; respectively.


3. One hundred per cent voted. Yet statistics show that all over the
Islands, the percentage of voting was 79.5% only; and in Tarlac and
Bulacan where facilities of communication are abundant, the
percentage was 85.98 and 85.81 only.

4. This answers the erroneous claim that our decision usurps functions
of the Senate Electoral Tribunal.

5. Block-voting has been abolished.

1. Justice Felix Frankfurter, dissenting, in Pearce vs. Commissioner of


Internal Revenue,
315 U.S. 543, 558.

2. Petition, p. 6.

3. Petition, p. 10.

4. Petition, p. 1.

5. 1965 Elections: Bailen, Cavite Precinct No. 10, all Liberals got
255 votes, all others got zero. Precinct No. 12, all Liberals got 228,
votes, all others got zero; Silang, Cavite Precinct No. 34, all
Liberals got 287 votes, all others zero; Ternate, Cavite Precinct
No. 7, all Liberals got 90 votes, all others zero. Also, in 1961
Elections: Saramain, Lanao del Sur Precinct No. 1, NP Senatorial
Candidates all got 583 votes each; LPs all got zero.

6. Nacionalista Party vs. Commission on Elections, supra, at 154.

7. E.g., Gonzales vs. Hechanova, et al., L-21897, October 22, 1963.


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CARPIO, J : p

DECISION
The Case

EN BANC
[G.R. No. 164858. November 16, 2006.]
HENRY P. LANOT, substituted by MARIO S. RAYMUNDO,
petitioner,
CHARMIE Q. BENAVIDES, petitioner-intervenor, vs.
COMMISSION ON ELECTIONS and VICENTE P. EUSEBIO,
respondents.

This is a petition for certiorari 1 assailing the Resolution dated 20


August 2004, 2 the Resolution dated 21 May 2004 3 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 Division's 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 Eusebio's 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 6 and directed the Pasig
City Board of Canvassers to proclaim the winning candidate for
Pasig City Mayor without prejudice to the final outcome of Eusebio's
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 disqualification 8
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.
EAICTS

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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 memorandum 10 on 15 April 2004, while
Eusebio submitted his memorandum 11 on 16 April 2004.
The Ruling of the Regional Director
On 4 May 2004, Director Ladra submitted her findings and
recommendations to the COMELEC. Director Ladra recommended
that:
WHEREFORE, in view of the foregoing, undersigned respectfully
recommends that the instant petition be GRANTED. Consequently,
pursuant to Section 68 (a) and (e) of the Omnibus Election Code,
respondent VICENTE P. EUSEBIO shall be DISQUALIFIED to run for
the position of Mayor, Pasig City for violation of Section 80 of the
Omnibus Election Code.
Further, undersigned respectfully recommends that the instant case be
referred to the Law Department for it to conduct a preliminary
investigation on the possible violation by the respondent of Sec. 261 (a) of
the Omnibus Election Code. 12
The Ruling of the COMELEC
In a resolution dated 5 May 2004, or five days before the elections,
the COMELEC First Division adopted the findings and
recommendation of Director Ladra. The dispositive portion of the
resolution read:
WHEREFORE, in view of the foregoing, the Commission (FIRST
DIVISION) RESOLVED as it hereby RESOLVES to ORDER:
1.the disqualification of respondent VICENTE P. EUSEBIO from being a
candidate for mayor of Pasig City in the May 10, 2004 elections;
2.the Election Officers of District I and District II of Pasig City to
DELETE and CANCEL the name of respondent VICENTE P. EUSEBIO
from the certified list of candidates for the City Offices of Pasig City for
the May 10, 2004 elections;
3.the Board of Election Inspectors of all the precincts comprising the City
of Pasig not to count the votes cast for respondent VICENTE EUSEBIO,
the same being cast for a disqualified candidate and therefore must be
considered stray;
4.the City Board of Canvassers of Pasig City not to canvass the votes
erroneously cast for the disqualified candidate respondent VICENTE P.
EUSEBIO, in the event that such votes were recorded in the election
returns[;]

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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. TDcHCa

This Resolution is immediately executory unless restrained by the


Commission En Banc. 13 (Emphasis in the original)
In a Very Urgent Advisory 14 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
Memorandum 15 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 Division's 5 May 2004 resolution due to Eusebio's 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 . . . 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 Eusebio's 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
respondent's 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 Eusebio's 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
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election tension and without prejudice to [its] action in [the] . . .


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. On 25 June and 6 July 2004, the
COMELEC En Banc conducted hearings on Eusebio's motion for
reconsideration of the 5 May 2004 COMELEC First Division
resolution. On 6 August 2004, Lanot filed a motion to annul
Eusebio's 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
Court's rulings in Albaa v. COMELEC, 23 Lonzanida v. COMELEC,
24 and Sunga v. COMELEC 25 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) SEIcAD

Hence, this petition.


The Issues
Lanot alleged that as the COMELEC's 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,

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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
Respondent's 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. CaDEAT

E.a) WHETHER THERE ARE PREPONDERANT EVIDENCE TO


WARRANT RESPONDENT EUSEBIO'S 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.
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F.IN CASE OF DISQUALIFICATION OF RESPONDENT EUSEBIO,


WHETHER PETITIONER LANOT CAN BE PROCLAIMED AND
ALLOWED TO SIT AS MAYOR-ELECT, AND WHETHER THE
DOCTRINES IN TOPACIO, CODILLA, JR., LABO AND OTHERS
APPLY IN THIS CASE. 27

The petition has no merit.


The Ruling of the Court
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 Lanot's death. However, on 27 April 2005, Lanot's counsel
manifested, over Eusebio's objections, that Mario S. Raymundo
("Raymundo"), a registered voter and former Mayor of Pasig City, is
Lanot's 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
Raymundo's substitution, any citizen of voting age is competent to
continue the action in Lanot's 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.cdrep

COMELEC's Grave Abuse of Discretion


Propriety of Including Eusebio's 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 Eusebio's name
from the certified list of Pasig City mayoral candidates, not to count
votes cast in Eusebio's favor, and not to include votes cast in
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Eusebio's 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 Lanot's motion to suspend the counting of votes and
canvassing of election returns.
Lanot claims that Chairman Abalos whimsically grabbed the
adjudicatory power of the COMELEC En Banc when he issued the
10 May 2004 memorandum. Lanot asserts that the last sentence in
the dispositive portion of the COMELEC First Division's 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.
Lanot's claim has no basis, especially in light of the 11 May 2004
Resolution of the COMELEC En Banc. The COMELEC En Banc's
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 led 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 disquali ed by nal judgment at the
time of the elections. Section 6 of the Electoral Reforms Law of
1987 provides that "[a] candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast
for him shall not be counted." Under Section 13 of the COMELEC
Rules of Procedure, a decision or resolution of a Division in a special
action becomes nal and executory after the lapse of fteen days
following its promulgation while a decision or resolution of the
COMELEC En Banc becomes nal and executory after ve days from
its promulgation unless restrained by this Court.
Propriety of the Lifting of the Suspension of Eusebio's Proclamation
In the same 11 May 2004 Resolution, the COMELEC En Banc
ordered the suspension of Eusebio's 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 Eusebio's
votes and quoted from the Resolutions as follows:
Resolution No. 7128
xxx xxx xxx
NOW THEREFORE, the Commission RESOLVED, as it hereby
RESOLVES, to adopt certain policies and to direct all Board of
Canvassers, as follows:
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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;
Resolution No. 7129
xxx xxx xxx
xxx xxx xxx
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. STHAID

We agree with Eusebio that the COMELEC En Banc did not commit
grave abuse of discretion in issuing its 21 May 2004 order. The
COMELEC has the discretion to suspend the proclamation of the
winning candidate during the pendency of a disqualification case
when evidence of his guilt is strong. 33 However, an order suspending
the proclamation of a winning candidate against whom a
disqualification case is filed is merely provisional in nature and can
be lifted when warranted by the evidence. 34
Propriety of the Dismissal of the Disqualification Case and of the
Referral to the COMELEC
Law Department
Lanot filed the petition for disqualification on 19 March 2004, a little
less than two months before the 10 May 2004 elections. Director
Ladra conducted hearings on the petition for disqualification on 2, 5
and 7 April 2004. Director Ladra submitted her findings and
recommendations to the COMELEC on 4 May 2004. The
COMELEC First Division issued a resolution adopting Director
Ladra's recommendations on 5 May 2004. Chairman Abalos
informed the pertinent election officers of the COMELEC First
Division's 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. Eusebio's 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 Division's 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
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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.
. . . 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 COMELEC's deliberations. EaISDC

However, contrary to the COMELEC En Banc's 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)
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Moreover, this Court's 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.
xxx xxx xxx
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
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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 Division's
resolution and referring the entire case to the COMELEC Law
Department for the criminal aspect. aEHADT

Moreover, the COMELEC En Banc's act and Eusebio's assertions


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


Omnibus Election Code . . . may be filed any day after the last day [of]
filing of certificates of candidacy but not later than the date of
proclamation.
2.The petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus
Election Code shall be filed in ten (10) legible copies with the concerned
office mentioned in Sec. 3 personally or through a duly authorized
representative by any citizen of voting age, or duly registered political
party, organization or coalition of political parties against any candidate
who, in an action or protest in which he is a party, is declared by final
decision of a competent court guilty of, or found by the Commission of:
2.ahaving given money or other material consideration to influence, induce
or corrupt the voters or public officials performing electoral functions; or
xxx xxx xxx
2.dhaving solicited, received or made any contribution prohibited under
Sections 89, 95, 96, 97 and 104 of the Omnibus Elections Code; or
IcAaEH

2.ehaving 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.
xxx xxx xxx
Indeed, what the COMELEC did in its 20 August 2004 resolution
was contrary to "the interest of justice and . . . 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 Tuason's dissent underscored the
inconsistency between the avowed purpose of Resolution 6452 and
the COMELEC En Banc's 20 August 2004 resolution:
. . . [T]he preliminary investigation for purposes of finding sufficient
ground for [Eusebio's] 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
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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 Division's 5 May
2004 resolution on Eusebio's 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
Eusebio's 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 . . . :
xxx xxx xxx
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 (respondent's) and his
group's candidacy.
xxx xxx xxx
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.
xxx xxx xxx
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.
xxx xxx xxx
5)The display of billboards containing the words "Serbisyo Eusebio" and
"ST" which means "Serbisyong Totoo" before the start of the campaign
period.
xxx xxx xxx
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.
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xxx xxx xxx


7)Streamers bearing the words "Pasig City is for PEACE" were likewise
displayed with the two letters "E" prominently written.
xxx xxx xxx
8)Stickers of [Eusebio] were likewise pasted all over the city before the
start of the campaign period.
xxx xxx xxx
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.
xxx xxx xxx (Emphasis in the original) 42
Eusebio argues that: (1) Lanot is in estoppel for participating in the
proceedings before the COMELEC Law Department; (2) Lanot
abandoned the present petition also because of his participation in
the proceedings before the COMELEC Law Department; and (3)
Lanot is guilty of forum-shopping. These arguments fail for lack of
understanding of the two aspects of disqualification cases. The
proceedings before the COMELEC Law Department concern the
criminal aspect, while the proceedings before this Court concern the
electoral aspect, of disqualification cases. The proceedings in one
may proceed independently of the other. IaECcH
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 COMELEC's
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 Ladra's
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:
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(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. EHTADa

Thus, the essential elements for violation of Section 80 of the


Omnibus Election Code are: (1) a person engages in an election
campaign or partisan political activity; (2) the act is designed to
promote the election or defeat of a particular candidate or candidates;
(3) the act is done outside the campaign period.
The second element requires the existence of a "candidate." Under
Section 79(a), a candidate is one who "has filed a certificate of
candidacy" to an elective public office. Unless one has filed his
certificate of candidacy, he is not a "candidate." The third element
requires that the campaign period has not started when the election
campaign or partisan political activity is committed.
Assuming that all candidates to a public office file their certificates of
candidacy on the last day, which under Section 75 of the Omnibus
Election Code is the day before the start of the campaign period, then
no one can be prosecuted for violation of Section 80 for acts done
prior to such last day. Before such last day, there is no "particular
candidate or candidates" to campaign for or against. On the day
immediately after the last day of filing, the campaign period starts
and Section 80 ceases to apply since Section 80 covers only acts
done "outside" the campaign period.
Thus, if all candidates file their certificates of candidacy on the last
day, Section 80 may
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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 Eusebio's acts of election campaigning or
partisan political activities were committed outside of the campaign
period. The only question is whether Eusebio, who filed his
certificate of candidacy on 29 December 2003, was a "candidate"
when he committed those acts before the start of the campaign period
on 24 March 2004.
Section 11 of Republic Act No. 8436 ("RA 8436") moved the
deadline for the filing of certificates of candidacy to 120 days before
election day. Thus, the original deadline was moved from 23 March
2004 to 2 January 2004, or 81 days earlier. The crucial question is:
did this change in the deadline for filing the certificate of candidacy
make one who filed his certificate of candidacy before 2 January
2004 immediately liable for violation of Section 80 if he engaged in
election campaign or partisan political activities prior to the start of
the campaign period on 24 March 2004?
Section 11 of RA 8436 provides:
SECTION 11.Official Ballot. The Commission shall prescribe the size
and form of the official ballot which shall contain the titles of the positions
to be filled and/or the propositions to be voted upon in an initiative,
referendum or plebiscite. Under each position, the names of candidates
shall be arranged alphabetically by surname and uniformly printed using
the same type size. A fixed space where the chairman of the Board of
Election Inspectors shall affix his/her signature to authenticate the official
ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to participate in the
election shall not be later than one hundred twenty (120) days before
the elections: Provided, That, any elective official, whether national or
local,
running for any office other than the one which he/she is holding in a
permanent
capacity, except for president and vice-president, shall be deemed resigned
only
upon the start of the campaign period corresponding to the position for
which
he/she is running: Provided, further, That, unlawful acts or omissions
applicable to a candidate shall take effect upon the start of the
aforesaid campaign period: Provided, finally, That, for purposes of the
May
11, 1998 elections, the deadline for filing of the certificate of candidacy for
the
positions of President, Vice-President, Senators and candidates under the
party-
list system as well as petitions for registration and/or manifestation to
participate
in the party-list system shall be on February 9, 1998 while the deadline for
the
filing of certificate of candidacy for other positions shall be on March 27,
1998.
IATSH E

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.
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To prevent the use of fake ballots, the Commission through the Committee
shall ensure that the serial number on the ballot stub shall be printed in
magnetic ink that shall be easily detectable by inexpensive hardware and
shall be impossible to reproduce on a photocopying machine, and that
identification marks, magnetic strips, bar codes and other technical and
security markings, are provided on the ballot.
The official ballots shall be printed and distributed to each city/
municipality at the rate of one (1) ballot for every registered voter with a
provision of additional four (4) ballots per precinct. 44 (Emphasis added)
Under Section 11 of RA 8436, the only purpose for the early filing of
certificates of candidacy is to give ample time for the printing of
official ballots. This is clear from the following deliberations of the
Bicameral Conference Committee:
SENATOR GONZALES. Okay. Then, how about the campaign period,
would it be the same[,] uniform for local and national officials?
THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to
retaining it at the present periods.
SENATOR GONZALES. But the moment one files a certificate of
candidacy, he's 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 don't provide that the
filing of the certificate will not bring about one's being a candidate.
SENATOR GONZALES. If that's 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.
xxx xxx xxx
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.
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THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to


the other prohibition. DEICTS
THE CHAIRMAN (REP. TANJUATCO). That's 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 . . . 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 . . . :
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 (respondent's) and his
group's candidacy. 47 (Emphasis in the original)
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The 14 February 2004 and 17 March 2004 speeches happened before


the date Eusebio
is deemed to have led his certi cate 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.
IE Cc AT

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.
xxx xxx xxx
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 Eusebio's 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.
xxx xxx xxx
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.
xxx xxx xxx
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.
xxx xxx xxx
7)Streamers bearing the words "Pasig City is for PEACE" were likewise
displayed with the two letters "E" prominently written.
xxx xxx xxx
Said streamers were among those captured by the camera of the
petitioners'
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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.
xxx xxx xxx
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.
xxx xxx xxx 50 (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. aSAHCE

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. 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: . . .
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. Eusebio's 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 Eusebio's 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 Eusebio's theory, unlawful acts applicable to a
candidate cannot be committed outside of the campaign
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period. The net result is to make the election offense in Section 80


physically impossible to commit at any time. We shall leave this
issue for some other case in the future since the present case can be
resolved without applying the proviso in Section 11 of RA 8436.
Effect of Eusebio's Possible Disqualification
As second placer, Lanot prayed that he be proclaimed as the rightful
Pasig City Mayor in the event of Eusebio's disqualification. As third
placer, Benavides, on the other hand, prays that she be proclaimed as
the rightful Pasig City Mayor in the event of Eusebio's
disqualification and in view of Lanot's death. Even if we assume
Eusebio's disqualification as fact, we cannot grant either prayer.
The disqualification of the elected candidate does not entitle the
candidate who obtained the second highest number of votes to
occupy the office vacated because of the disqualification. 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 candidate's
disqualification to bring such awareness within the realm of notoriety
but nonetheless the voters still cast their votes in favor of the
ineligible candidate. 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 Eusebio's 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. ACETSa

SO ORDERED.
Sandoval-Gutierrez, Carpio Morales and Velasco, Jr., JJ., concur.
Panganiban, C.J., see separate opinion.
Puno, J., joins J. Tinga.
Quisumbing, J., also concurs with CJ's opinion.
Ynares-Santiago, J., joins separate opinion of J. Tinga. Austria-
Martinez, J., joins C.J. Panganiban in his separate opinion. Corona,
J., joins with Justice Tinga.
Callejo, Sr., J., concurs with CJ's opinion.
Azcuna, J., joins Justice Tinga in his separate opinion.
Tinga, J., please see separate opinion.
Chico-Nazario and Garcia, JJ. join J. Tinga in his separate opinion.
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Separate Opinions
PANGANIBAN, J.:
While agree "in the result" of the ponencia, which recommends that
the Petition be dismissed, I have some reservations with regard to the
discussion of the issue of whether Eusebio violated Section 80 of the
Omnibus Election Code.
The ponencia states that "[u]nder Section 11 of RA 8436, Eusebio
became a 'candidate,' for purposes of Section 80 of the Omnibus
Election Code (OEC), only on 23 March 2004, the last day for filing
certificates of candidacy." Pursuant to this statement, Eusebio,
despite having filed a Certificate of Candidacy on December 29,
2003, was still not deemed a candidate until the last day for filing
certificates of candidacy. This proposition seems to disregard the
definition of a "candidate" as stated in Section 79 (a). 1 The bases
given in the ponencia 2 for this action are (1) the law prior to RA
8436; and (2) liberal construction, in favor of the accused.
In my view, these grounds are insufficient. First, being the more
current law, Republic Act 8436 now conveys the legislative will.
Hence, the prior law, if inconsistent with it, can no longer be applied.
Therefore, the earlier law, which set the deadline of the filing of the
certificate of candidacy on the day before the beginning of the
campaign period, 3 can no longer be followed because the present
law has reset the deadline at 120 days before election day.
Candidates thus need to file only one certificate of candidacy. To
encourage, or to deem as proper, the filing of two certificates (the
first for purposes of the ballot and the second for all other purposes)
whether actual or in principle will merely promote
unnecessary waste and confusion.
Second, the present case concerns only the electoral and not the
criminal aspects, as very well differentiated in the ponencia. Hence, a
liberal interpretation of Section 80 is not called for. More important,
the determination of who is a candidate in relation to the filing of a
certificate of candidacy involves Section 79 of the OEC and
Republic Act 8436, not Section 80 of the OEC. Not being penal,
these provisions should not be construed liberally in favor of the
"accused."
Indeed, the deliberations on Republic Act 8436 show that the
lawmakers initially thought that the filing of a certificate of
candidacy to meet the deadline for purposes of the ballot will not
deem the filer a candidate for other purposes, particularly in
connection with a candidate's prohibited acts. This idea, however, did
not appear in the final approved version of the law. As it is, there
appears no basis or necessity for distinguishing when a person is
considered a candidate for the purposes of printing the ballots, on the
one hand; and for other purposes, on the other.
To stress, what came out in the final approved law as the Section 11
proviso, which reads as follows: "Provided, further, That, unlawful
acts or omissions applicable to a candidate shall take effect upon the
start of the aforesaid campaign period." The ponencia finds "no
necessity to apply in the present case this proviso . . . since the
present case can be resolved without applying the proviso in Section
11 of RA 8436." I believe, though, that the application of the proviso
has to be addressed in the present case if the merits are to be resolved
squarely. cADEHI

It is my position that Director Ladra was correct in considering


Eusebio to have become a candidate even for purposes of Section 80,
when he filed his certificate of candidacy on
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December 29, 2003. This inference is very clear from Section 79,
which has, not been repealed expressly or impliedly by
Republic Act 8436. Eusebio thus violated Section 80.
Be that as it may, the net result is that the acts mentioned in Section
80 cannot be deemed unlawful at any time because of the clause in
Section 11 of Republic Act 8436 that "unlawful acts or omissions
applicable to a candidate shall take effect upon the start of the
aforesaid campaign period"; and the fact that by definition the
unlawful acts in Section 80 of the OEC cannot be committed during
the campaign period. In other words, the foregoing proviso has been
impliedly repealed. Hence, there is no effective basis for
disqualifying Eusebio.
WHEREFORE, I vote to DISMISS the Petition. TINGA, J.:
In legal contemplation, petitions for disqualification of election
candidates are supposed to be filed, litigated and decided prior to the
proclamation of the candidate sought to be disqualified. Any attempt
to initiate or intervene in a petition for disqualification must be done
before the proclamation of the candidate. Yet Justice Carpio's
opinion now rules that even long after the candidate has been
proclaimed, any person who professes some interest may be allowed
to intervene. This is a ruling that would effectively lengthen the
adjudication of petitions for disqualification and encourage the
dilatory use of the intervention process even if the original petitioner
himself no longer has interest in pursuing the petition. The procedure
for disqualification was intended as a finite process, Justice Carpio's
opinion now makes it infinite.
I respectfully dissent insofar as Justice Carpio's opinion would
resolve the case on the merits, and submit that the petition should be
dismissed on the ground of mootness.
The petition for disqualification against respondent Vicente Eusebio
was originally filed by petitioner based on two provisions of the
Omnibus Election Code (Code), namely Sections 68 and 80. Section
80 declares as unlawful for any person to engage in an election
campaign or partisan political activity except during the campaign
period, while Section 68 authorizes the disqualification of any
candidate who violates Section 80. Moreover, Section 262 of the
Code provides that violation of Section 80 constitutes an election
offense, which in turn engenders criminal liability.
In the case at bar, petitioner, along with four other candidates in the
2004 Pasig City elections, timely filed the petition for
disqualification against respondent Mayor Vicente Eusebio (Eusebio)
well before the 2004 elections. The case had still been pending
before the COMELEC by the time Eusebio was proclaimed as the
winner in the mayoralty elections of that year. After the COMELEC
finally dismissed the petition for disqualification, Lanot elevated
such decision to the Court for review under Rule 64 of the Rules of
Civil Procedure, as was his right. However, none of the four co-
petitioners joined Lanot in his petition before this Court. Then, Lanot
was tragically assassinated on 13 April 2005.
Had Lanot been joined in his present petition by any of his original
co-petitioners, there would be no impediment in deciding this case
on the merits. Since they did not, there was nobody left with standing
to maintain this present petition upon Lanot's death. However, two
persons, Benavides and Raymundo, none of whom showed previous
interest to join or intervene in the petition while Lanot was still alive,
now seek to be admitted before this
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Court as, respectively, an intervenor or as a substitute 1 to Lanot.


There is no statutory or procedural rule that would authorize such
unconventional steps, yet Justice Carpio's opinion has permitted the
same. TAECSD

What are the fundamental predicates that should be considered in


ascertaining whether Benavides and Raymundo should be allowed to
intervene and substitute Lanot in the petition at this very late stage
before the Court? First, the COMELEC Rules of Procedure state that
the petition for disqualification must be filed "any day after the last
day for filing of certificates of candidacy but not later than the date of
proclamation." 2 Second, the COMELEC Rules of Procedure also
authorize any person "allowed to initiate an action or proceeding" to
intervene in such action or proceeding during the trial, and within the
discretion before the COMELEC.
Clearly, only persons who are allowed to initiate an action or
proceeding are authorized to intervene in the said action or
proceeding. Are Benavides or Raymundo "allowed to initiate an
action or proceeding" at the point when they sought to intervene?
They are not, for the initiation of an action or proceeding may be
done "not later than the date of proclamation."
There is indeed a consistent thrust in the law that the petition for
disqualification should be resolved with finality before proclamation.
It is required that petitions for disqualification be heard summarily
after due notice. 3 Section 72 enjoins the COMELEC and the courts
to "give priority to cases of disqualification . . . to the end that a final
decision shall be rendered not later than seven days before the
election in which the disqualification is sought." 4 While the law
concedes that such final decision might be rendered even after the
election or the proclamation of the winning candidate, 5 it cannot be
doubted that the dominant intent of the law is to see to it that
petitions for disqualification are resolved as immediately as possible.
It has been suggested that Mercado v. Manzano 6 somehow applies as
precedent in permitting the belated participation of Benavides and
Raymundo in the proceedings before this Court. Yet a close
examination of that case actually bolsters my position.
In Mercado, the petition for intervention to a disqualification case
was filed eight (8) days after the 11 May 1998 elections. The Court
allowed such intervention even though it was filed after the elections,
hence the reliance by Justice Carpio's opinion on Mercado. However,
it should be noted that even though the action for intervention came
after the election, it still was lodged three (3) months before a
winning candidate was proclaimed. Thus, intervention therein was
proper as it was filed by Mercado at a time when he was still
properly capacitated to initiate an action for disqualification. The
Court pronounced:
Private respondent cites [provisions] of Rule 8 of the Rules of Procedure
of the COMELEC in support of his claim that petitioner has no right to
intervene and, therefore, cannot bring this suit to set aside the ruling
denying his motion for intervention: . . . Private respondent argues that
petitioner has neither legal interest in the matter in litigation nor an interest
to protect because he is "a defeated candidate for the vice-mayoralty post
of Makati City [who] cannot be proclaimed as the Vice-Mayor of Makati
City even if the private respondent be ultimately disqualified by final and
executory judgment.
The flaw in this argument is it assumes that, at the time petitioner sought to
intervene in the proceedings before the COMELEC, there had already
been a proclamation of the results of the election for the vice mayoralty
contest for Makati City, on the basis of which petitioner
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came out only second to private respondent. The fact, however, is that
there had been no proclamation at that time. Certainly, petitioner had, and
still has, an interest in ousting private respondent from the race at the time
he sought to intervene. . . . 7
Mercado clearly laid emphasis on the fact that the attempt at
intervention therein was viable as it was made before the
proclamation of a winning candidate. Had Mercado sought to
intervene in the proceedings before the COMELEC after the
proclamation, would the intervention have prospered? Considering
that the Court expressly took into account that there had been no
proclamation yet when the intervention was filed, it stands to reason
that the intervention would not have prospered if it was filed after
proclamation. IcaHTA

I agree that the right to intervention in a petition for disqualification


lies even after election. But the same is terminated upon
proclamation, after which there are different remedies available to
oust the winning candidate from office, such as an election protest or
a quo warranto petition. The availability of remedies other than
intervention should guide the Court in adjudging whether there is
basis for a liberal application of the rules. In this case at bar, the
intervenors were not barred from joining Lanot's petition for
disqualification, or intervening in the same prior to the proclamation
of Eusebio. They did not do so. So, they can no longer do what they
could have but did not do before proclamation.
It should be kept in mind that a petition for disqualification is
intended at canceling the certificate of candidacy of a candidate, as
distinguished from nullifying the election that installs that candidate
into office. Thus, there are at most two positive reliefs that can be
obtained in a petition for disqualification the cancellation of the
certificate of candidacy; and if the election had already taken place,
the injunction against the proclamation of the controversial
candidate. This is evident from Section 6 of Rep. Act No. 6646,
which reads:
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.
It is telling that the injunctive relief which the COMELEC may
authorize in a disqualification case is the suspension of the
proclamation of the candidate in question. This qualification further
militates that the period for the successful initiation or intervention in
a petition for disqualification terminates upon the proclamation of the
said candidate. It is also revealing that there stands no right of
intervention by any third party to the pending disqualification case,
the allowance of such intervention being dependent on the sound
discretion of the COMELEC or the court concerned.
There is another crucial reason why a limitation should be imposed
on attempts to intervene in a disqualification petition after the
proclamation of a winning candidate. Without such proscription, any
person or political party would be able to maintain a petition for
disqualification through intervention even after the original
petitioners had withdrawn the petition, lost interest in pursuing the
petition, or died.
For example, during the campaign period, A, a candidate for city
mayor, filed a petition for disqualification against B, the incumbent
running for re-election, for violations of the
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Omnibus Election Code. The petition had not yet been finally
decided when B was
proclaimed as the clear winner against A. Out of a desire for peace
within the city, A
decided to concede B's victory and to withdraw the petition for
disqualification a most
desirable scenario even if perhaps atypical. However, following
Justice Carpio's opinion, a
person such as C, a non-candidate who nonetheless is an estranged
creditor of B, could
very well intervene and substitute in behalf of A and pursue the
disqualification case. There
is likewise no stopping a D or an E to eventually follow suit even if
C eventually dies or
loses interest in pursuing the protest. Justice Carpio's opinion would
allow a petition for
disqualification to be litigated in perpetuity, long after the
proclamation of a candidate, and
even after the parties who filed the petition have since lost interest in
continuing the same.
Da IACS

Let us further assume, for the sake of argument, that Lanot had not
died but that he had opted not to assail the challenged rulings of the
COMELEC. Benavides and Raymundo, desirous to see Eusebio
disqualified even though they had not participated in the
disqualification case, filed the petition for certiorari assailing the
COMELEC rulings. Such a course of action is instinctively awry,
Benavides and Raymundo clearly not having standing to challenge
the COMELEC rulings. Yet following Justice Carpio's opinion's
reasoning, Benavides and Raymundo would actually be authorized to
file and litigate the certiorari petition before this Court. After all,
Justice Carpio's opinion makes it clear that the only requisites for
intervention in a petition for disqualification are that the intervenors
are citizens of voting age or a duly registered party, organization or
coalition of political parties, and that no final judgment has yet been
rendered.
The way to preclude abuse or anomalies to the right to intervene in
disqualification cases is to stress a clear and equitable rule that
intervention after proclamation should not be permitted, just as the
filing of a petition for disqualification after proclamation is
prohibited. In other words, the proclamation as a bench mark
operates as a bar to the filing of the petition for disqualification as
well as to any motion for intervention therein. Such an interpretation,
which avoids inconvenient or absurd results, is desirable considering
the principle in statutory construction that "where there is ambiguity,
such interpretation as will avoid inconvenience and absurdity is to be
adopted."
There have been instances where the Court has adopted a liberal
stance in allowing for the substitution of a deceased party to an
election protest, as was authorized in cases such as De Mesa v.
Mencias 8 and Lomugdang v. Javier. 9 However, an election protest
stands as a different specie from a petition for disqualification.
Petitions for disqualifications are supposed to be resolved even prior
to the election itself, while election protests are necessarily
commenced only after the election is held. It would be improper to
rely on either De Mesa or Lomugdang to justify the sought-for
interventions in this case. These cases do establish the right to
substitution of an election protestee/protestant, yet it should be noted
that the parties who attempted to substitute in these cases were real
parties in interest, defined in Poe v. Arroyo as "those who would be
benefited or injured by the judgment, and the party who is entitled to
the avails of the suit." In fact, if we were to deem the doctrines on
substitution in protest cases as similarly controlling in this case, the
intervenors would have been denied the right to substitute the
deceased Lanot, following the latest precedent on that issue, Poe v.
Arroyo. The Court as the Presidential Electoral Tribunal held therein:
Rule 3, Section 16 is the rule on substitution in the Rules of Court. This
rule allows substitution by a legal representative. It can be gleaned from
the citation of this
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rule that movant/intervenor seeks to appear before this Tribunal as the


legal representative/substitute of the late protestant prescribed by said
Section 16. However, in our application of this rule to an election contest,
we have every time ruled that a public office is personal to the public
officer and not a property transmissible to the heirs upon death. Thus, we
consistently rejected substitution by the widow or the heirs in election
contests where the protestant dies during the pendency of the protest. In
Vda. de De Mesa v. Mencias, we recognized substitution upon the death of
the protestee but denied substitution by the widow or heirs since they are
not the real parties in interest. Similarly, in the later case of De la Victoria
v. Commission on Elections, we struck down the claim of the surviving
spouse and children of the protestee to the contested office for the same
reason. Even in analogous cases before other electoral tribunals, involving
substitution by the widow of a deceased protestant, in cases where the
widow is not a real party in interest, we denied substitution by the wife or
heirs.
This is not to say that death of the protestant necessarily abates the
pending action. We have held as early as Vda. de De Mesa (1966) that
while the right to a public office is personal and exclusive to the public
officer, an election protest is not purely personal and exclusive to the
protestant or to the protestee such that the death of either would oust the
court of all authority to continue the protest proceedings. Hence, we have
allowed substitution and intervention but only by a real party in interest. A
real party in interest is the party who would be benefited or injured by the
judgment, and the party who is entitled to the avails of the suit. In Vda. de
De Mesa v. Mencias and Lomugdang v. Javier, we permitted substitution
by the vice-mayor since the vice-mayor is a real party in interest
considering that if the protest succeeds and the protestee is unseated, the
vice-mayor succeeds to the office of the mayor that becomes vacant if the
one duly elected cannot assume office. In contrast, herein movant/
intervenor, Mrs. FPJ, herself denies any claim to the august office of
President. Thus, given the circumstances of this case, we can conclude that
protestant's widow is not a real party in interest to this election protest.
Could Raymundo or Benavides be considered as "real parties in
interest", conformably to the standard set by the Court in actions for
substitution in election protests? No. Raymundo was not even a
candidate in the 2004 elections. While Benavides ran and lost for
mayor in the said election, neither would she possess the legal
interest required for substitution in election protest cases, as she
would not succeed into office should Eusebio be disqualified.
Ultimately, De Mesa, Lomugdang and Poe are irrelevant to this case,
as they involve election protests and not disqualification cases. As
the ponente would say, the interests that lie in disqualification cases,
which extend to the prevention of an unqualified candidate from
sitting in office, are consequential enough that any voter or political
party or organization is allowed to file a petition for disqualification.
Granted. However, should it necessarily mean that there should be no
limits as to when petitions for disqualification may in effect be
revived or given new life through intervention? caEIDA

Finally, I find it distressing that Justice Carpio's opinion, in resolving


the petition on the merits in favor of Eusebio, has also chosen to
preclude the continuation of any criminal action against Eusebio,
concluding as it does that no election offense was committed by the
respondent. The matters elevated for review before the Court
concerned the electoral aspect of a petition for disqualification under
Section 80 of the Omnibus Election Code. Such petition has two
aspects the electoral aspect and the criminal aspect. The electoral
aspect pertains to whether the candidate should be disqualified from
the
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election, while the criminal aspect is concerned whether the same


candidate is guilty of an election offense.
The distinction between the electoral and criminal aspects bear
pointing out. There are different parties-in-interest who are
capacitated to file suit regarding the electoral aspect, as opposed to
the criminal aspect. Section 2, Rule 25 of the COMELEC Rules of
Procedure authorizes "any citizen of voting age, or duly registered
political party, organization or coalition of political parties" in filing
a petition for disqualification. On the other hand, under Section 1,
Rule 34 of the COMELEC Rules of Procedure, it is the COMELEC
which has "the exclusive power to conduct preliminary investigation
of all election offenses punishable under the election laws and to
prosecute the same" 10 Further, while election offenses prescribe in
five (5) years after their commission, 11 the petition for
disqualification must be filed "any day after the last day for filing of
certificates of candidacy but not later than the date of proclamation."
12

Both the electoral and the criminal aspects come to fore in this case.
The pending legal incidents were initiated by a petition for
disqualification filed by Lanot and four other candidates in the 2004
Pasig City elections. Subsequently, the COMELEC initiated an
investigation as to whether respondent Eusebio should be charged
with an election offense. Notably, the COMELEC has yet to find
cause to discharge Eusebio of his possible criminal liability for
committing an election offense. I submit that by dismissing the
present petition on the ground of mootness, the COMELEC would
retain the power and the duty to ascertain whether Eusebio may
indeed be criminally liable.
There is a public interest in seeing that candidates who commit
election offenses which also constitute grounds for disqualification,
are accordingly penalized and disqualified from office. I submit that
this interest may be protected in the criminal aspect of the
corresponding petition for disqualification. Unlike in the electoral
aspect wherein it is the individual petitioners who have legal interest
in maintaining the suit, it is the COMELEC itself which has the legal
interest to pursue the criminal aspect, as it is the poll body which has
exclusive power to investigate and to prosecute election offenses.
Should the petitioners die or withdraw from the petition for
disqualification, the COMELEC may still pursue the criminal aspect.
If the candidate in question is found guilty of the election offense, he
may be removed from office as a result, as well as face the
corresponding jail term.
The COMELEC in this case did observe that the evidence was strong
that respondent Eusebio was guilty of committing election offenses.
13 It is unfortunate that Justice Carpio's opinion, in deciding the
petition on the merits, has arrived at the contrary conclusion that
"Eusebio clearly did not violate Section 80 of the Omnibus Election
Code," and thus precluding further investigation or prosecution of
Eusebio. This conclusion was needlessly arrived at since the death of
Lanot should have already mooted the petition for disqualification
without prejudice to the right of the Comelec to investigate or
prosecute Eusebio for election offenses. aECSHI

I VOTE to DISMISS the petition, it having become moot and


academic. Footnotes
1.Under Rule 64 in relation to Rule 65 of the 1997 Rules of Civil
Procedure.
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2.Per Curiam Resolution with Chairman Benjamin S. Abalos and


Commissioners, Resurreccion Z. Borra, Virgilio O. Garcillano, and
Manuel A. Barcelona, Jr., concurring. Commissioner Florentino A. Tuason,
Jr. wrote a separate dissenting opinion, where he was joined by
Commissioner Mehol K. Sadain. Rollo, Vol. 1, pp. 91-104.
3.En Banc Order with Chairman Benjamin S. Abalos and Commissioners
Mehol K. Sadain, Resurreccion Z. Borra, Florentino A. Tuason, Jr.,
Virgilio O. Garcillano, and Manuel A. Barcelona, Jr., concurring.
Commissioner Rufino S.B. Javier inhibited himself from the case. Id. at
155-159.
4.Id. at 163.
5.Per Curiam Resolution with only Commissioners Resurreccion Z. Borra
and Virgilio O. Garcillano participating. Presiding Commissioner Rufino
S.B. Javier had no part. Id. at 105-150.
6.En Banc Order with Chairman Benjamin S. Abalos and Commissioners
Rufino S.B. Javier, Resurreccion Z. Borra, and Florentino A. Tuason, Jr.,
concurring. Commissioners Mehol K. Sadain, Virgilio O. Garcillano, and
Manuel A. Barcelona, Jr. dissented in part, stating that the issue of
Eusebio's guilt must be decided on the merits. Id. at 160-162.
7.This Resolution was referred to as the "resolution promulgated by the
First Division dated 8 May 2004" by the COMELEC En Banc. A "Very
Urgent Advisory" issued by Chairperson Abalos on 8 May 2004 was
addressed to Atty. Esmeralda Amora-Ladra, Acting Regional Election
Director of the National Capital Region; Atty. Romeo Alcazar, Acting
Election Officer of the 1st District of Pasig City; Ms. Marina Gerona,
Acting Election Officer of the 2nd District of Pasig City; and all Chairmen
and Members of the Board of Election Inspectors and Pasig City Board of
Canvassers. The 8 May 2004 Advisory merely reiterated the dispositive
portion of the COMELEC First Division's 5 May 2004 Resolution. Id. at
151-152.
8.Id. at 164-215.
9.Id. at 216-240.
10.Id. at 241-293.
11.Id. at 294-337.
12.Id. at 148.
13.Id. at 149.
14.Id. at 151. See also note 7. 15.Id. at 153.
16.Id. at 338-351. 17.Id. at 163. 18.Id. at 355-357. 19.Id. at 162. 20.Id. at
158. 21.Id. at 158-159.
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22.Id. at 521-538.
23.G.R. 163302, 23 July 2004, 435 SCRA 98.
24.370 Phil. 625 (1999).
25.351 Phil. 310 (1998).
26.Rollo, Vol. 1, p. 95.
27.Id. at 11, 14-16.
28.See The COMELEC Rules of Procedure, Rule 25, Sec. 1; COMELEC
Resolution 6452 (2003). See also Mercado v. Manzano, 367 Phil. 132
(1999).
29.See Mercado v. Manzano, 367 Phil. 132 (1999).
30.See Lonzanida v. COMELEC, 370 Phil. 625 (1999); Sunga v.
COMELEC, 351 Phil. 310 (1998). See also Lomugdang v. Javier, 128 Phil.
424 (1967) and De Mesa, et al. v. Mencias, et al., 124 Phil. 1187 (1966).
Although the cases of Lomugdang and De Mesa concern election contests,
these case underscore this Court's policy of disregarding the statutorily
prescribed time limit in allowing petitions for substitution and petitions in
intervention. Moreover, in contrast to disqualification cases where the
issues may be raised by any voter or political party, election contests raise
questions which are personal to the protestant and protestee and may
arguably be considered extinguished by the death of either party. Yet
Lomugdang and De Mesa not only allowed substitution and intervention,
they further declared that the perceived urgency in deciding election cases
should give way to the ends of justice.
31.Rollo, Vol. 1, p. 161.
32.The COMELEC promulgated both Resolutions on 16 May 2004.
33.The Electoral Reforms Law of 1987, Section 6.
34.See Nolasco v. COMELEC, 341 Phil. 761 (1997).
35.Supra note 25, at 321-322.
36.378 Phil. 585, 598-600 (1999).
37.Omnibus Election Code, Section 265.
38.See Bagatsing v. COMELEC, supra note 35; Sunga v. COMELEC,
supra note 25; Nolasco v. COMELEC, supra note 33.
39.See Omnibus Election Code, Section 264. 40.See Bagatsing v.
COMELEC, supra note 37. 41.Rollo, Vol. 1, pp. 103-104.
42.Id. at 135-148.
43.See Nolasco v. COMELEC, supra note 33.
44.Republic Act No. 9006 now allows all elective public officials, local or
national, to hold on to their elective offices even after filing their
certificates of candidacy. Section 14 of RA 9006 provides:
SECTION 14. Repealing Clause. Sections 67 and 85 of the Omnibus
Election Code (Batas
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Pambansa Blg. 881) and Sections 10 and 11 of Republic Act No. 6646 are
hereby repealed. As a consequence, the first proviso in the third paragraph
of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws,
presidential decrees, executive orders, rules and regulations, or any part
thereof inconsistent with the provisions of this Act are hereby repealed or
modified or amended accordingly.
45.Minutes of Bicameral Conference Committee on Constitutional
Amendments, Revision of Codes and Laws, 16 December 1997, as
certified by Director Antonia P. Barros, Legislative Records and Archives
Service.
46.Omnibus Election Code, Section 262. 47.Rollo, Vol. 1, pp. 135, 139.
48.Id. at 142.
49.Id. at 143.
50.Id. at 143-146.
51.See Kare v. COMELEC, G.R. 157526, 28 April 2004, 428 SCRA 264;
Loreto v. Brion, 370 Phil. 727 (1999); Domino v. COMELEC, 369 Phil.
798 (1999); Reyes v. COMELEC, 324 Phil. 813 (1996); Aquino v.
COMELEC, G.R. No. 120265, 18 September 1995, 248 SCRA 400; Labo,
Jr. v. COMELEC, G.R. No. 105111, 3 July 1992, 211 SCRA 297; Abella v.
COMELEC, G.R. No. 100710, 3 September 1991, 201 SCRA 253; Labo,
Jr. v. COMELEC, G.R. No. 86564, 1 August 1989, 176 SCRA 1;
Geronimo v. Ramos, No. L-60504, 14 May 1985, 136 SCRA 435.
52.See Loreto v. Brion, 370 Phil. 727 (1999).
53.See Grego v. COMELEC, G.R. 125955, 19 June 1997, 274 SCRA 481.
54.See The Local Government Code, Republic Act No. 7160, Section 44
(1991). PANGANIBAN, J.:
1.Sec. 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[.]"
2.P. 29, ponencia
3.Section 75 of the Omnibus Election Code. TINGA, J.:
1.A brief comment on Raymundo's Motion for Substitution. I see no basis
in the Rules of Court for such substitution to be allowed on account of
Lanot's death. It is the heirs of the deceased who may be allowed to be
substituted for the deceased. See 1997 Rules of Civil Procedure, Rule 3,
Sec. 16. Apparently though, Justice Carpio's opinion is ready to equate
Raymundo's attempt at "substitution" as an action for "intervention", the
latter being a distinct remedial course of action.
2.See COMELEC RULES OF PROCEDURE, Rule 2, Sec. 2; emphasis
supplied. See also Section 5(B)(1), Comelec Resolution No. 6452, which
was in effect at the time of the 2004 elections.
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3.See COMELEC RULES OF PROCEDURE, Rule 25, Sec. 3. See also


Section 5(B)(8), Comelec Resolution No. 6452.
4.See Sec. 72, Omnibus Election Code.
5.See Sec. 72, Omnibus Election Code and Sec. 6, Rep. Act No. 6646.
6.367 Phil. 132 (1999).
7.Id. at 141-142. Emphasis supplied.
8.124 Phil. 1187 (1966).
9.128 Phil. 424 (1967).
10,See Sec. 1, Rule 34., COMELEC Rules of Procedure. Except as may
otherwise be provided by law.
11.See Sect. 267, Omnibus Election Code.
12.See Sec. 2, Rule 25, Comelec Rules of Procedure; emphasis supplied.
See also Sec. 5(B)(1),
Comelec Resolution No. 6452, which was in effect at the time of the 2004
elections. 13.See Draft Ponencia, p. 7.
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EN BANC
[G.R. No. 129783. December 22, 1997.]
MARCELINO C. LIBANAN, petitioner, vs. HOUSE OF
REPRESENTATIVES ELECTORAL TRIBUNAL and JOSE T.
RAMIREZ , respondents.
Cesar A. Sevilla & Associates for petitioner. The Solicitor General
for public respondent.
SYNOPSIS
Petitioner Marcelino Libanan and private respondent Jose Ramirez
were among the candidates for the lone congressional of Eastern
Samar in the May 1995 elections. After the canvass of the returns,
the Provincial Board of Canvassers of Eastern Samar proclaimed
respondent Ramirez. Petitioner Libanan seasonably led an election
protest before the House of Representatives Electoral Tribunal
(HRET). The evidence and the issues submitted by the parties for
consideration by the HRET related mainly to the proper appreciation
of the ballots objected to, or claimed by, the parties during the
revision. The HRET af rmed the proclamation of private respondent
Jose Tan Ramirez. Petitioner Libanan moved for reconsideration of
the decision of the HRET arguing, among other grounds, that the
absence of the Board of Election Inspectors (BEI) Chairman's
signature at the back of the ballots could not but indicate that the
ballots were spurious and not those issued to the voters during the
elections. The HRET denied with nality petitioner's motion for
reconsideration. Hence, the present petition.
The Supreme Court dismissed-the petition. The Court ruled that
Section 24 of R.A. No. 7166, the applicable law, does not provide
that a ballot not so authenticated shall thereby deemed spurious. The
law merely renders the BEI Chairman accountable for such failure.
What should, instead be given weight is the consistent rule laid down
by HRET that a ballot is considered valid and genuine for as long as
it bears any of the following authenticated marks, to wit: (a) the
COMELEC watermark, or (b) the signature or initials, or thumbprint
of the chairman of the BEI; and, (c) in those cases where the
COMELEC watermarks are blurred or not readily apparent to the
naked eye, the presence of red and blue bers in the ballot. It is only
when none of these marks appears extant that the ballot can be
considered spurious and subject to rejection.
SYLLABUS
STATUTES; STATUTORY CONSTRUCTION; SECTION 24 OF
R.A. 7166 CONSTRUED; SAID PROVISION DOES
NOT .PROVIDE THAT A BALLOT WHICH IS NOT SO
AUTHENTICATED SHALL THEREBY BE :DEEMED
SPURIOUS; IT MERELY RENDERS THE BOARD OF
ELECTION INSPECTORS (BEI) ACCOUNTABLE FOR SUCH
FAILURE; APPLICABLE PRINCIPLES. Section 24 of R.A.
7166 does not provide that a ballot which is not so; authenticated
shall thereby be deemed spurious. The law merely renders the BEI
Chairman accountable for
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such failure. The courts may not, in the guise of interpretation,


enlarge the scope of a statute and embrace situations neither
provided nor intended by the lawmakers. Where the words and
phrases of a statute are not obscure and ambiguous, the meaning and
intention of the legislature should be determined from the language
employed, and where there is no ambiguity in the words, there
should be no room for construction.
DECISION
VITUG, J : p

The 28th May 1997 decision of the House of Representatives


Electoral Tribunal ("HRET"), which af rmed the proclamation of
herein private respondent Jose Tan Ramirez declaring him to be the
duly elected Representative of Eastern Samar for having obtained the
plurality of votes over petitioner Marcelino Libanan, and the 20th
June 1997 resolution of the HRET, which denied with nality
petitioner's motion for reconsideration, are sought to be annulled in
this special civil action for certiorari.
LLpr

Petitioner Marcelino Libanan and private respondent Jose Ramirez


were among the candidates for the lone congressional seat of Eastern
Samar in the May 1995 elections. After the canvass of the returns
was made on 13 May 1995, the Provincial Board of Canvassers of
Eastern Samar proclaimed respondent Ramirez to have been duly
elected Representative of the District with a total of forty-one
thousand ve hundred twenty-three (41,523) votes, compared to
petitioner's forty thousand eight hundred sixty-nine (40,869) votes,
or a margin of six hundred fifty-four (654) votes over those of
petitioner.
Petitioner Libanan seasonably led an election protest before the
HRET claiming, among other things, that the 08th May 1995
elections in Eastern Samar were marred by massive electoral
irregularities perpetrated or instigated by respondent Ramirez, as
well as his leaders and followers, in the twenty-three (23)
municipalities of the lone district of Eastern Samar with the aid, in
various instances, of peace of cers supposedly charged with
maintaining an orderly and honest election. Petitioner contested
seventy-nine (79) precincts in ve (5) municipalities. He also
maintained that the election returns and/or ballots in certain precincts
were tampered with, substituted, or systematically marked in favor of
respondent Ramirez. Libanan prayed that, after due proceedings, the
HRET should issue an order to annul the election and proclamation
of Ramirez and to thereafter so proclaim petitioner as the duly
elected Representative of the Lone District of Eastern Samar.
In his answer and counter-protest, with a petition for preliminary
hearing on the special and af rmative defenses, respondent Ramirez
denied the charges. He counter-protested the results of the elections
in certain precincts where, he claimed, Libanan engaged in massive
vote buying, lansadera, terrorism and tearing of the list of voters to
disenfranchise voters therein listed. Accordingly, he prayed, inter
alia, for the dismissal of the protest and the con rmation of his
election as the duly elected representative of the Lone District of
Eastern Samar.
After some peripheral issues were settled by the HRET, the revision
of ballots in the protested precincts commenced on 20 February
1996. The HRET noted that Libanan contested a total of seventy-
nine (79) precincts. It was noted during the revision, however, that
six (6) of the contested precincts, namely, Precincts Nos. 14, 15, 16,
18, 19 and 20 of
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Arteche, were found to have been merged during the 08 May 1995
elections into three (3) precincts, i.e., Precincts Nos. 14 and 19,
Precincts Nos. 15 and 16 and Precincts Nos. 18 and 20. Thus, only
seventy-six (76) ballot boxes were actually opened for revision, one
of which, Precinct No. 4-1 of Guiuan, did not contain any ballot.
On 22 February 1996, while the revision of the counter-protested
precincts was being held, Ramirez led an "Urgent Motion to
Withdraw/Abandon Counter-Protest in Speci c Municipalities/
Precincts" praying that he be granted leave to withdraw and abandon
partially his counter-protest in certain precincts. 1 Libanan led an
opposition thereto but the motion was eventually granted by the
Chairman of the HRET and subsequently confirmed in a resolution
by the tribunal.
On 21 March 1996, the HRET designated a Hearing Commissioner
and a Deputy Hearing Commissioner for the reception of evidence.
Following that reception, the respective memoranda of Libanan and
Ramirez were filed.
The evidence and the issues submitted by the parties for
consideration by the HRET related mainly to the proper appreciation
of the ballots objected to, or claimed by, the parties during the
revision. No evidence was presented in support of the other
allegations of the protest (like the alleged tampering of election
returns) and of the counter-protest (such as the alleged tearing of
some of the pages of the computerized list of voters to disenfranchise
legitimate voters and the use of goons to terrorize and compel voters
to vote for Libanan), nor were these issues discussed in the
memoranda of the parties. The HRET thus concentrated, such as can
be rightly expected, its attention to the basic appreciation of ballots. 2
The particular matter focused in this petition deals with what
petitioner claims to be spurious ballots; on this score, the HRET has
explained:
"No spurious ballot was found in this case. For a ballot to be rejected for
being spurious, the ballot must not have any of the following
authenticating marks: a) the COMELEC watermark; b) the signatures or
initial of the BEI Chairman at the back of the ballot; and c) red and blue
bers. In the present case, all the ballots examined by the Tribunal had
COMELEC watermarks.
"The Tribunal did not adopt protestant's submission in his Memorandum
that the absence of thumbmark or BEI Chairman's signature at the back of
the ballot rendered the ballot spurious. The applicable law on this issue is
Sec. 24, R.A. 7166. It reads:
"'In every case before delivering an of cial ballot to the voter, the
Chairman of the Board of Election Inspectors shall, in the presence of the
voter, af x his signature at the back thereof. Failure to so authenticate shall
be noted in the minutes of the board of election inspectors and shall
constitute an election offense punishable under Section 263 and 264 of the
Omnibus Election Code.'
"As may be gleaned above, unlike the provision of Section 210 of the
Omnibus Election Code where the BEI Chairman was required to af x his
right thumbmark at the back of the ballot immediately after it was counted,
the present law no longer requires the same.
"Anent the BEI Chairman's signature, while Section 24 of R.A. 7166
provides that failure to authenticate the ballot shall constitute an election
offense, there is nothing in the said law which provides that ballots not so
authenticated shall be
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considered invalid. In fact, the members of the Committee on Suffrage and
Electoral Reforms agreed during their deliberation on the subject that the
absence of the BEI Chairman's signature at the back of the ballot will not
per se make a ballot spurious.
"Moreover, while Rep. Palacol, then Chairman of the Committee on
Suffrage and Electoral Reforms, mentioned during his sponsorship speech
that one of the salient features of the bill led was 'to require the chairman
of the Board of Election Inspectors to authenticate a ballot given to a voter
by af xing his signature on (sic) the back thereof and to consider any ballot
as spurious,' R.A. 7166, as approved, does not contain any provision to
that effect. Clearly, therefore, the Congress as a whole (House of
Representatives and Senate) failed to adopt the proposal of Rep. Palacol
that ballots without the BEI Chairman's signature at the back will be
declared spurious. What is clearly provided under the said law is the
sanction imposable upon an erring Chairman of the BEI, and not the
disenfranchisement of the voter." 3
In its assailed decision, the HRET ruled in favor of respondent
Ramirez; it concluded:
"WHEREFORE, in light of the foregoing, the Tribunal Resolved to
DISMISS the instant election protest, including the parties' mutual claims
for damages and attorney's fee; AFFIRM the proclamation of Protestee
Jose Tan Ramirez; and DECLARE him to be the duly elected
Representative of the Lone District of Eastern Samar, for having obtained
a plurality of 143 votes over second placer Protestant Marcelino Libanan."
4

Petitioner Libanan moved for a reconsideration of the decision of the


HRET arguing, among other grounds, 5 that the absence of the BEI
Chairman's signature at the back of the ballots could not but indicate
that the ballots were not those issued to the voters during the
elections. He averred that the law would require the Chairman of the
BEI to authenticate or sign the ballot before issuing it to the voter.
Acting on petitioner's motion for reconsideration, the HRET credited
petitioner Libanan with thirty (30) votes because of the error in the
computation of the base gure and rejected twelve (12) ballots for
respondent Ramirez. Respondent Ramirez, nevertheless, remained to
be the winner with a lead of ninety-nine (99) votes in his favor. As
regards the absence of BEI Chairman's signature at the back of the
ballots, the HRET stressed:
"Fraud is not presumed. It must be suf ciently established. Moreover,
Section 211 of the Omnibus Election Code provides in part that 'in the
reading and appreciation of ballots, every ballot shall be presumed to be
valid unless there is clear and good reason to justify its rejection.' In the
instant case, there is no evidence to support protestant's allegation that the
ballots he enumerated in his Motion for Reconsideration are substitute
ballots. The absence of the BEI Chairman's signature at the back of the
ballot cannot be an indication of ballot switching or substitution. At best,
such absence of BEI Chairman's signature is a prima facie evidence that
the BEI Chairmen concerned were derelict in their duty of authenticating
the ballots. Such omission, as stated in the Decision, is not fatal to the
validity of the ballots. 6
Thus, the present recourse.
A perusal of the grounds raised by petitioner to annul the HRET
decision and resolution boils down to the issue of whether or not the
HRET committed grave abuse of discretion in
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ruling that the absence of the signature of the Chairman of the BEI in
the ballots did not render the ballots spurious.
Petitioner Libanan contends that the three hundred eleven (311)
ballots (265 of which have been for private respondent Ramirez)
without the signature of the Chairman of the BEI, but which had the
COMELEC watermarks and/or colored bers, should be invalidated.
It is the position of petitioner that the purpose of the law in requiring
the BEI Chairman to af x his signature at the back of the ballot when
he issues it to the voter is "to authenticate" the ballot and, absent that
signature, the ballot must be considered spurious.
Prefatorily, the Court touches base on its jurisdiction to review and
pass upon decisions or resolutions of the electoral tribunals.
The Constitution mandates that the House of Representatives
Electoral Tribunal and the Senate Electoral Tribunal shall each,
respectively, be the sole judge of all contests relating to the election,
returns and quali cations of their respective members. 7 In Lazatin vs.
HRET , 8 the Court has observed that
"The use of the word 'sole' emphasizes the exclusive character of the
jurisdiction conferred. The exercise of the power by the Electoral
Commission under the 1935 Constitution has been described as 'intended
to be as complete and unimpaired as if it had remained originally in the
legislature.' Earlier this grant of power to the legislature was characterized
by Justice Malcolm as ''full, clear and complete.' Under the amended 1935
Constitution, the power was unquali edly reposed upon the Electoral
Tribunal and it remained as full, clear and complete as that previously
granted the Legislature and the Electoral Commission. The same may be
said with regard to the jurisdiction of the Electoral Tribunals under the
1987 Constitution." 9
The Court has stressed that ". . . so long as the Constitution grants
the HRET the power to be the sole judge of all contests relating to
the election, returns and quali cations of members of the House of
Representatives, any nal action taken by the HRET on a matter
within its jurisdiction shall, as a rule, not be reviewed by this
Court . . . the power granted to the Electoral Tribunal . . . excludes
the exercise of any authority on the part of this Court that would in
any wise restrict it or curtail it or even affect the same."
The Court did recognize, of course, its power of judicial review in
exceptional cases. In Robles vs. HRET , 10 the Court has explained
that while the judgments of the Tribunal are beyond judicial
interference, the Court may do so, however, but only "in the exercise
of this Court's so-called extraordinary jurisdiction, . . . upon a
determination that the Tribunal's decision or resolution was rendered
without or in excess of its jurisdiction, or with grave abuse of
discretion or paraphrasing Morrero, upon a clear showing of such
arbitrary and improvident use by the Tribunal of its power as
constitutes a denial of due process of law, or upon a demonstration of
a very clear unmitigated error, manifestly constituting such grave
abuse of discretion that there has to be a remedy for such abuse."
In the old, but still relevant, case of Morrero vs. Bocar, 11 the Court
has ruled that the power of the Electoral Commission "is beyond
judicial interference except, in any event, upon a clear showing of
such arbitrary and improvident use of power as will constitute a
denial of due process." The Court does not, to paraphrase it in Co vs.
HRET , 12 venture into the perilous area of correcting perceived
errors of independent branches of the Government; it comes in only
when it has to vindicate a denial of due process or correct an abuse
of discretion so grave or glaring that no less than the Constitution
itself calls for remedial action.
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In the instant controversy, it would appear that the HRET "reviewed


and passed upon the validity of all the ballots in the protested and
counter-protested precincts, including those not contested and
claimed by the parties." 13 The Tribunal, added, that (t)his course of
action was adopted not only to give effect to the intent of each and
every voter, but also to rectify any mistake in appreciation, deliberate
or otherwise, committed at the precinct level and overlooked during
the revision stage of this case." 14 In holding that the absence of the
signature of the Chairman of the BEI at the back of the ballot does
not invalidate it, the HRET has ratiocinated in this wise: LLphil

"No spurious ballot was found in this case. For a ballot to be rejected for
being spurious, the ballot must not have any of the following
authenticating marks: a) the COMELEC watermark; b) the signatures or
initial of the BEI Chairman at the back of the ballot; and c) red and blue
bers. In the present case, all the ballots examined by the Tribunal had
COMELEC watermarks.
"xxx xxx xxx
"Anent the BEI Chairman's signature, while Section 24 of R.A. 7166
provides that failure to authenticate the ballot shall constitute an election
offense, there is nothing in the said law which provides that ballots not so
authenticated shall be considered invalid. In fact, the members of the
Committee on Suffrage and Electoral Reforms agreed during their
deliberation on the subject that the absence of the BEI Chairman's
signature at the back of the ballot will not per se make a ballot spurious.
"Moreover, while Rep. Palacol, then Chairman of the Committee on
Suffrage and Electoral Reforms, mentioned during his sponsorship speech
that one of the salient features of the bill led was to require the chairman of
the Board of Election Inspectors to authenticate a ballot given to a voter by
af xing his signature on (sic) the back thereof and to consider any ballot as
spurious,' R.A. 7166, as approved, does not contain any provision to that
effect. Clearly, therefore, the Congress as a whole (House of
Representatives and Senate) failed to adopt the proposal of Rep. Palacol
that ballots without the BEI Chairman's signature at the back will be
declared spurious. What is clearly provided under the said law is the
sanction imposable upon an erring Chairman of the BEI, and not the
disenfranchisement of the voter." 15
The pertinent provision of the law, Section 24 of R.A.. No. 7166,
provides:
"SEC. 24. Signature of Chairman at the back of Every Ballot. In every
case before delivering an of cial ballot to the voter, the Chairman of the
Board of Election Inspectors shall, in the presence of the voter, af x his
signature at the back thereof. Failure to authenticate shall be noted in the
minutes of the Board of Election Inspectors and shall constitute an election
offense punishable under Section 263 and 264 of the Omnibus Election
Code."
There is really nothing in the above law to the effect that a ballot
which is not so authenticated shall thereby be deemed spurious. The
law merely renders the BEI Chairman accountable for such failure.
The courts may not, in the guise of interpretation, enlarge the scope
of a statute and embrace situations neither provided nor intended by
the lawmakers. Where the words and phrases of a statute are not
obscure and ambiguous, the meaning and intention of the legislature
should be determined from the language employed, and where there
is no ambiguity in the words, there should be no room for
construction. 16
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As so aptly observed by the Solicitor-General, House Bill ("HB")


No. 34811 (which later became R.A. No. 7166), approved by the
House of Representatives on third reading, was a consolidation of
different bills. Two of the bills consolidated and considered in
drafting H.B. No. 34811 were H.B. 34639 and H.B. No. 34660.
Section 22 of the two latter bills provided that:
"In every case before delivering an of cial ballot to the voter, the chairman
of the Board of Election Inspectors shall, in the presence of the voter, af x
his signature at the back thereof. Any ballot which is not so authenticated
shall be deemed spurious. Failure to so authenticate shall constitute an
election offense." 17
During the deliberation of the Committee on Suffrage and Electoral
Reforms, held on 08 August 1991, the members agreed to delete the
phrase "Any ballot which is not so authenticated shall be deemed
spurious." Pertinent portions of the transcript of stenographic notes
("TSN") taken during the Meeting of the Committee on Suffrage and
Electoral Reforms read:
"THE CHAIRMAN. Yes, Congressman Mercado.
"HON. MERCADO. I think, Section 22, we go to the intent of the
provision. I think the intent here is to sanction the inspector so I would
propose a compromise. The ballot should not be deemed as spurious.
However, it would rather be failure of the inspector to, or the chairman to
af x his signature would rather be a circumstance which would aggravate
the crime, which would aggravate the election offense, on the part of the
inspector, but not to disenfranchise the voter. Because the intention here is
to punish the election inspector for not af xing the signature. Why should
we punish the voter? So I think the compromise here . . .
"THE CHAIRMAN. A serious election offense.
"HON. MERCADO. Yes, it should be a serious election offense on the part
of the chairman for not affixing the signature, but not to make the ballot
spurious.
"HON. RONO. Mr. Chairman.
"THE CHAIRMAN. Yes, Congressman Rono.
"HON. RONO. One thing that we have to guard against is when we deal
with the ballot and the right to suffrage, we should not really make law that
would prevent the exibility of the Commission on Elections, and the
Supreme Court from getting other extraneous efforts to con rm authenticity
or the spuriousness of the ballot, by making a provision that by that single
mistake or inadvertence of the chairman we make the ballot automatically
spurious is dangerous. It should be. . . what I'm saying is that the
Commission or the proper bodies by which this matter will be taken up
may consider it as one of the evidences of spuriousness but not per se or
ipso facto it becomes; it should look for other extraneous evidence. So
what I am suggesting is let us give them this kind of exibility before we
determine or before we say that this ballot is spurious, we give the
COMELEC some flexibility in the determination of other extraneous
evidence.
"HON. GARCIA. May I offer a suggestion?
"THE CHAIRMAN. Yes, Congressman Garcia.
"HON. GARCIA. That the fact that a ballot does not contain the signature,
I think,
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initial will not be suf cient, the signature of the Chairman should be noted
in the minutes. Noted in the minutes. So that in case of protest, there is
basis.
"HON. RONO. Oo may basis na. lyon lang. I think that would solve our
problem.
"THE CHAIRMAN. Yes, Mr. Chairman.
"MR. MONSOD. Your honor, we're willing to accept that amendment.
Take out that sentence spurious, with the introduction of the proposed
measure . . ." 18
The TSN of the proceedings of the Bicameral Conference Committee
on Election Law, held on 29 October 1991, in turn, would show these
exchanges:
"CHAIRMAN GONZALEZ. Are there anything more?
"HON. ROCO. There is a section in the Senate version about the ballot
being signed at the back.
"CHAIRMAN GONZALEZ. Counter side.
"HON. ROCO. If it is not signed then it is being spurious which is a very
dangerous, I (think) (it) is a very dangerous provision and so. . .
"MR MONSOD. We agree with the House version that anyway when
chairman of BEI doesn't sign subject to an election offense. But it should
not be a basis for disenfranchisement of the voter. So, we believe we set
this in the hearings in the House that we should strike out that sentence
that says that this ballot is automatically spurious." 19
Thus, the nal draft, which was later to become R.A. No. 7166, no
longer included the provision "Any ballot not so authenticated shall
be deemed spurious." The intention of the legislature even then was
quite evident.
The reliance on Bautista vs. Castro 20 by petitioner, is misdirected. It
must be stressed that B.P. Blg. 222, 21 otherwise known as the
"Barangay Election Act of 1982," approved on 25 March 1982, itself
categorically expresses that it shall only be "applicable to the
election of barangay of cials." Section 14 of B.P. Blg. 222 and its
implementing rule in Section 36 of COMELEC Resolution No. 1539
have both provided:
Section 14 of B.P. 222:
"Sec. 14. Of cial barangay ballots. The of cial barangay ballots shall be
provided by the city or municipality concerned of a size and color to be
prescribed by the Commission on Elections.
"Such of cial ballot shall, before it is handed to the voter at the voting
center, be authenticated in the presence of the voter, the other Tellers, and
the watchers present by the Chairman of the Board of Election Tellers who
shall af x his signature at the back thereof."
Section 36 of COMELEC Resolution No. 1539:
"Sec. 36. Procedure in the casting of votes. . . .
"b. Delivery of ballot. Before delivering the ballot to the voter, the
chairman shall, in the presence of the voter, the other members of the
board and the watchers present, af x his signature at the back thereof and
write the serial number of the ballot in the space provided in the ballot,
beginning with No. '1' for
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the rst ballot issued, and so on consecutively for the succeeding ballots,
which serial number shall be entered in the corresponding space of the
voting record. He shall then fold the ballot once, and without removing the
detachable coupon, deliver it to the voter, together with a ball pen.
"xxx xxx xxx
"e. Returning the ballot. (1) In the presence of all the members of the
Board, the voter shall af x his right hand thumbmark on the corresponding
space in the detachable coupon, and shall give the folded ballot to the
chairman. (2) The chairman shall without unfolding the ballot or looking at
its contents, and in the presence of the voter and all the members of the
Board, verify if it bears his signature and the same serial number recorded
in the voting record. (3) If the ballot is found to be authentic, the voter
shall then be required to imprint his right hand thumbmark on the proper
space in the voting record. (4) The chairman shall then detach the coupon
and shall deposit the folded ballot in the compartment for valid ballot and
the coupon in the compartment for spoiled ballots. (5) The voter shall then
leave the voting center.
"f. When ballot may be considered spoiled. Any ballot returned to the
chairman with its coupon already detached, or which does not bear the
signature of the chairman, or any ballot with a serial number that does not
tally with the serial number of the ballot delivered to the voter as recorded
in the voting record, shall be considered as spoiled and shall be marked
and signed by the members of the board and shall not be counted." 22
The difference in the rules may not be too dif cult to discern. The
stringent requirements in B.P. Blg. 222 should be justifiable
considering that the official barangay ballots would be provided by
the city or municipality concerned with the COMELEC merely
prescribing their size and color. Thus, the of cial ballots in B.P. Blg.
222, being supplied and furnished by the local government
themselves, the possibility of the ballots being easily counterfeited
might not have been discounted. The absence of authenticating
marks prescribed by law i.e., the signature of the chairman of the
Board of Election Tellers at the back of the ballot, could have well
been really thought of to be fatal to the validity of the ballot.
Section 24 of R.A. No. 7166, upon the other hand, contains no
similar stringent provisions such as that seen in Section 36(f) of
COMELEC Resolution No. 1539. The pertinent part in Resolution
No. 2676 on the requirement of the signature of the chairman is
found in Section 73 thereof which merely provides:
"Sec. 73. Signature of chairman at the back of every ballot. In every
case, the chairman of the board shall, in the presence of the voter,
authenticate every ballot by af xing his signature at the back thereof before
delivering it to the voter. FAILURE TO SO AUTHENTICATE SHALL BE
NOTED IN THE MINUTES OF THE BOARD AND SHALL
CONSTITUTE AN ELECTION OFFENSE."
Again, in Resolution No. 2738, 23 promulgated by the COMELEC on
03 January 1995, 24 which implemented, among other election laws,
R.A. No. 7166 (that governed the election for Members of the House
of Representatives held on 08 May 1995), the relevant provision is in
Section 13 which itself has only stated:
"Sec. 13. Authentication of the ballot. Before delivering a ballot to the
voter, the chairman of the board shall, in the presence of the voter, af x his
signature at the back thereof."
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It would appear evident that the ruling in Bautista vs. Castro was
prompted because of the express declaration in Section 36(f) of
COMELEC Resolution No. 1539, implementing Section 14 of B.P.
Blg. 222, that: "Any ballot returned to the chairman . . . which does
not bear the signature of the chairman . . . shall be considered as
spoiled . . . and shall not be counted." This Court thus stated in
Bautista: cda
"The law (Sec. 14 of B.P. Blg. 222) and the rules implementing it (Sec. 36
of Comelec Res. No. 1539) leave no room for interpretation. The absence
of the signature of the Chairman of the Board of Election Tellers in the
ballot given to a voter as required by law and the rules as proof of the
authenticity of said ballot is fatal. This requirement is mandatory for the
validity of the said ballot."
It should be noteworthy that in an unsigned 03rd April 1990
resolution, in "Jolly Fernandez vs. COMELEC," 25 the Court en banc
had the opportunity to debunk the argument that all ballots not
signed at the back thereof by the Chairman and the Poll Clerk were
to be considered spurious for non-compliance with Section 15 of
R.A. No. 6646, 26 i.e., "The Electoral Reforms Law of 1987," reading
as follows:
"Sec. 15. Signature of Chairman and Poll Clerk at the Back of Every
Ballot. In addition to the preliminary acts before the voting as
enumerated in Section 191 of Batas Pambansa Blg. 881, the chairman and
the poll clerk of the board of election inspectors shall af x their signatures
at the back of each and every of cial ballot to be used during the voting. A
certi cation to that effect must be entered in the minutes of the voting."
The Court declared:
"The cardinal objective in the appreciation of the ballots is to discover and
give effect to the intention of the voter. That intention would be nulli ed by
the strict interpretation of the said section as suggested by the petitioner for
it would result in the invalidation of the ballot even if duly accomplished
by the voter, and simply because of an omission not imputable to him but
to the election of cials. The citizen cannot be deprived of his constitutional
right of suffrage on the specious ground that other persons were negligent
in performing their own duty, which in the case at bar was purely
ministerial and technical, by no means mandatory but a mere antecedent
measure intended to authenticate the ballot. A contrary ruling would place
a premium on of cial ineptness and make it possible for a small group of
functionaries, by their negligence or, worse, their deliberate inaction
to frustrate the will of the electorate." 27
Petitioner Libanan suggests that the Court might apply the "ruling"
of respondent HRET in the case of Yap vs. Calalay (HRET Case No.
95-026). He states that it is the HRET itself, ironically, that deals the
coup de grace to its ruling in HRET Case No. 95-020." The "ruling"
cited by petitioner is actually a "Con dential Memorandum," 28 dated
28 April 1997, from a certain Atty. Emmanuel Mapili addressed to
"PA Committees in HRET Case No. 95-026 (Yap vs. Calalay)" which
has for its subject "(n)ew rulings to be followed in the appreciation
of ballots in HRET Case No. 95-026 (Yap vs. Calalay) and other
concerns." Petitioner Libanan quotes the pertinent portion of the said
Memorandum, viz.:
"WHEREFORE, the Tribunal Resolved that the following rules and
guidelines on the appreciation of ballots shall be given effect in the
resolution of this case and shall be applied prospectively to other pending
cases:
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"1. The absence of the signature of the BEI Chairman at the back of the
ballot shall nullify the same and all the votes therein shall not be counted
in favor of any candidate." 29
Reliance by petitioner on this alleged "ruling," obviously deserves
scant consideration. What should, instead, be given weight is the
consistent rule laid down by the HRET that a ballot is considered
valid and genuine for as long as it bears any one of these
authenticating marks, to wit: (a) the COMELEC watermark, or (b)
the signature or initials, or thumbprint of the Chairman of the BEI;
and, (c) in those cases where the COMELEC watermarks are blurred
or not readily apparent to the naked eye, the presence of red and blue
bers in the ballots. 30 It is only when none of these marks appears
extant that the ballot can be considered spurious and subject to
rejection.
It is quite clear, in the opinion of the Court, that no grave abuse of
discretion has been committed by respondent House of
Representatives Electoral Tribunal in its issuance of the assailed
decision and resolution.
One other important point. Regarding the membership of certain
Justices of this Court in the HRET and their participation in the
resolution of the instant petition, the Court sees no con ict at all, and
it, therefore, rejects the offer of inhibition by each of the concerned
justices. As early as Vera vs. Avelino, 31 this Court, confronted with a
like situation, has said unequivocally:
". . . Mulling over this, we experience no qualmish feelings about the
coincidence. Their designation to the electoral tribunals deducted not a
whit from their functions as members of this Supreme Court, and did not
disqualify them in this litigation. Nor will their deliverances hereat on a
given question operate to prevent them from voting in the electoral forum
on identical questions; because the Constitution, establishing no
incompatibility between the two roles, naturally did not contemplate, nor
want, justices opining one way here, and thereafter holding otherwise, pari
materia, in the electoral tribunal, or vice-versa." 32
Such has thus been, and so it is to be in this petition, as well as in the
cases that may yet come before the Court.
WHEREFORE, the instant petition is DISMISSED. IT IS SO prLL

ORDERED.
Narvasa, C .J ., Regalado, Davide, Jr., Romero, Melo, Puno,
Kapunan, Mendoza, Francisco and Panganiban, Martinez, JJ .,
concur.
Bellosillo, J ., concurs, without prejudice to filing separate opinion to
qualify doctrine. Footnotes
1. "1) All the forty- ve (45) precincts of Dolores; 2) All the thirty (30)
precincts of Taft; 3) All the protested precincts from the municipalities of
Maydolong, Llorente, Salcedo and Giporlos (Rollo, p. 38).
2. "Re: Multiple Ballots Written By One Person (Ibid., p. 51)
Re: Ballots Accomplished by Two (2) Persons (Ibid., p. 52)
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Re: Marked Ballots (Ibid., 57)


Re: Spurious Ballots (Ibid., 60)
Re: Ballots Objected to on Miscellaneous Grounds (Ibid., p. 63) Re:
Ballots Objected to on Combination of Grounds . . ." (Ibid.).
3. Ibid., pp. 60-62.
4. Ibid., p. 74.
5. a) Error in computing "base gure" for protestant (Ibid., p. 235); b)
Recourse to the election returns is not warranted when tampering of the
ballots was designed to preclude challenge of votes re ected in the election
returns (Ibid., 236); c) absence of BEI Chairman's signature on ballots
indicates that they were substituted or stuffed into the ballot boxes after the
election (Ibid., 238); and, d) ballots for the protestee which are clearly
multiple ballots written by one hand but which were not rejected as
such." (Ibid., p. 241).
6. Ibid., p. 267.
7. Section 17, Article VI, 1987 Constitution.
8. 168 SCRA 391.
9. At p. 401.
10. 181 SCRA 780.
11. 66 Phil. 429.
12. 199 SCRA 692.
13. Rollo, p. 42.
14. Ibid.
15. Ibid., pp. 60-62.
16. Allarde vs. Commission on Audit, 218 SCRA 227.
17. Comment of the Solicitor General, p. 4.
18. Rollo, p. 61.
19 Comment of the Solicitor-General, pp. 5-6.
20. 206 SCRA 305.
21. Entitled, "An Act Providing For The Election of Barangay Officials,
And For Other Purposes."
22. Bautista vs. Castro, 206 SCRA 305, 313-314.
23. Entitled, "General Instructions For The Board Of Election Inspectors
On The Casting And Counting Of Votes In The May 8, 1995 Elections."
24. Published on 07 January 1995 in Manila Standard.
25. G.R. No. 91351, 03 April 1990.
26. Entitled, '"An Act Introducing Additional Reforms In The Electoral
System And For Other
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Purposes."
27. Jolly Fernandez vs. COMELEC, supra. 28. Annex "F", Petition, Rollo,
p. 303-304. 29. Rollo, p. 303.
30. Neri vs. Romualdo, HRET Case No. 92-001, 14 April 1994, 4 HRET
Reports 42; Simando vs. Fuentebella, HRET Case No. 92-011, 14 April
1994, 4 HRET Reports 429; San Buenaventura vs. Baguio, HRET Case
No. 92-016, 14 April 1994, 4 HRET Reports 603; Tanchanco vs. Oreta,
HRET Case No. 92-017, 28 April 1994, 5 HRET Reports 25-26; Alterado
vs. Garcia, HRET Case No. 92-008, 12 May 1994, 5 HRET Reports 359;
Hisuler vs. Lanto, HRET Case No. 92-014, 22 July 1994, 6 HRET Reports
36.
31. 77 Phil. 192, 213. 32. At pp. 213-214.
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EN BANC
[G.R. No. 158466. June 15, 2004.]
PABLO V. OCAMPO , petitioner, vs. HOUSE OF
REPRESENTATIVES ELECTORAL TRIBUNAL AND MARIO B.
CRESPO a.k.a. MARK JIMENEZ, respondents.
DECISION
SANDOVAL-GUTIERREZ, J : p

The wreath of victory cannot be transferred from the disquali ed


winner to the repudiated loser because the law then as now only
authorizes a declaration of election in favor of the person who
obtained a plurality of votes and does not entitle a candidate
receiving the next highest number of votes to be declared elected. 1
This is a petition for certiorari under Rule 65 of the 1997 Rules of
Civil Procedure, as amended, led by petitioner Pablo V. Ocampo. He
alleged that the House of Representatives Electoral Tribunal
(HRET), herein public respondent, committed grave abuse of
discretion in issuing in HRET Case No. 01-024, Pablo Ocampo vs.
Mario "Mark Jimenez" Crespo, the (a) Resolution 2 dated March 27,
2003 holding that "protestant" (herein petitioner) cannot be
proclaimed the duly elected Representative of the 6th District of
Manila since being a second placer, he "cannot be proclaimed the rst
among the remaining quali ed candidates"; and (b) Resolution 3 dated
June 2, 2003 denying his motion for reconsideration.
The facts are uncontroverted:
On May 23, 2001, the Manila City Board of Canvassers proclaimed
private respondent Mario B. Crespo, a.k.a. Mark Jimenez, the duly
elected Congressman of the 6th District of Manila pursuant to the
May 14, 2001 elections. He was credited with 32,097 votes or a
margin of 768 votes over petitioner who obtained 31,329 votes.
On May 31, 2001, petitioner led with the HRET an electoral protest 4
against private respondent, impugning the election in 807 precincts
in the 6th District of Manila on the following grounds: (1)
misreading of votes garnered by petitioner; (2) falsi cation of
election returns; (3) substitution of election returns; (4) use of
marked, spurious, fake and stray ballots; and (5) presence of ballots
written by one person or two persons. The case was docketed
asHRET Case No. 01-024. Petitioner prayed that a revision and
appreciation of the ballots in the 807 contested precincts be
conducted; and that, thereafter, he be proclaimed the duly elected
Congressman of the 6th District of Manila.
On June 18, 2001, private respondent led his answer with counter-
protest 5 vehemently denying that he engaged in massive vote
buying. He also opposed petitioner's allegation that there is a need
for the revision and appreciation of ballots.
After the preliminary conference between the parties on July 12,
2001, the HRET issued a
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Resolution6 limiting the issues to: rst, whether massive vote-buying


was committed by private respondent; and second, whether petitioner
can be proclaimed the duly elected Representative of the 6th District
of Manila.
Meanwhile, on March 6, 2003, the HRET, in HRET Cases Nos.
01-020, Bienvenido Abante & Prudencio Jalandoni vs. Mario
Crespo, and 01-023, Rosenda Ann M. Ocampo vs. Mario Crespo,
issued Resolutions declaring that private respondent is "ineligible for
the Of ce of Representative of Sixth District of Manila for lack of
residence in the district" and ordering "him to vacate his of ce." 7
Private respondent led a motion for reconsideration but was denied. 8
On March 12, 2003, petitioner led a motion to implement Section 6
of Republic Act No. 6646, 9 which reads:
"Section 6. Effects of Disquali cation Case. Any candidate who has
been declared by nal judgment to be disquali ed 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 nal judgment before an election to be disquali ed 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 guilt is strong."
Petitioner averred that since private respondent was declared disquali
ed in HRET Cases Nos. 01-020 and 01-023, the votes cast for him
should not be counted. And having garnered the second highest
number of votes, he (petitioner) should be declared the winner in the
May 14, 2001 elections and proclaimed the duly elected
Congressman of the 6th District of Manila.
On March 26, 2003, private respondent led an opposition to
petitioner's motion to implement the afore-quoted provision.
On March 27, 2003, the HRET issued a Resolution holding that
private respondent was guilty of vote-buying and disqualifying him
as Congressman of the 6th District of Manila. Anent the second issue
of whether petitioner can be proclaimed the duly elected
Congressman, the HRET held:
". . . Jurisprudence has long established the doctrine that a second placer
cannot be proclaimed the rst among the remaining quali ed candidates. The
fact that the candidate who obtained the highest number of votes is later
declared to be disquali ed or not eligible for the of ce to which he was
elected does not necessarily give the candidate who obtained the second
highest number of votes the right to be declared the winner of the elective
office. . . .
It is of no moment that there is only a margin of 768 votes between
protestant and protestee. Whether the margin is ten or ten thousand, it still
remains that protestant did not receive the mandate of the majority during
the elections. Thus, to proclaim him as the duly elected representative in
the stead of protestee would be anathema to the most basic precepts of
republicanism and democracy as enshrined within our Constitution. In
effect, we would be advocating a massive disenfranchisement of the
majority of the voters of the sixth district of Manila.
Congressional elections are different from local government elections. In
local government elections, when the winning candidate for governor or
mayor is
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subsequently disquali ed, the vice-governor or the vice-mayor, as the case


may be, succeeds to the position by virtue of the Local Government Code.
It is different in elections for representative. When a voter chooses his
congressional candidate, he chooses only one. If his choice is concurred in
by the majority of voters, that candidate is declared the winner. Voters are
not afforded the opportunity of electing a 'substitute congressman' in the
eventuality that their rst choice dies, resigns, is disquali ed, or in any other
way leaves the post vacant. There can only be one representative for that
particular legislative district. There are no runners- up or second placers.
Thus, when the person vested with the mandate of the majority is disquali
ed from holding the post he was elected to, the only recourse to ascertain
the new choice of the electorate is to hold another election. . . .
This does not mean that the Sixth Legislative District of Manila will be
without adequate representation in Congress. Article VI, Section 9 of the
Constitution, and Republic Act No. 6645 allows Congress to call a special
election to ll up this vacancy. There are at least 13 months until the next
congressional elections, which is more than suf cient time within which to
hold a special election to enable the electorate of the Sixth District of
Manila to elect their representative.
For this reason, the Tribunal holds that protestant cannot be proclaimed as
the duly elected representative of the Sixth legislative District of Manila.
In view of the conclusion herein reached, it is unnecessary to rule on the
recount and revision of ballots in the protested and counter-protested
precincts.
WHEREFORE, the Tribunal Resolved to:
xxx xxx xxx
2) DENY protestant's (petitioner) Motion to Implement Section 6,
Republic Act No. 6646 by declaring the votes cast for Mario Crespo as
stray votes."
Petitioner led a partial motion for reconsideration but was denied.
Hence, the present petition for certiorari.
Petitioner contends that the HRET committed grave abuse of
discretion when it ruled that "it is unnecessary to rule on the recount
and revision of ballots in the protested and counter-protested
precincts." He maintains that it is the ministerial duty of the HRET to
implement the provisions of Section 6, R.A. No. 6646 speci cally
providing that "any candidate who has been declared by nal
judgment to be disquali ed shall not be voted for, and the votes cast
for him shall not be counted."
In his comment, private respondent counters that what the law
requires is that the disquali cation by nal judgment takes place before
the election. Here, the HRET Resolutions disqualifying him as
Representative of the 6th District of Manila were rendered long after
the May 14, 2001 elections. He also claims that the Resolutions are
not yet nal and executory because they are the subjects of certiorari
proceedings before this Court. Hence, all his votes shall be counted
and none shall be considered stray.
The HRET, in its comment, through the Of ce of the Solicitor
General, merely reiterates its ruling.
The petition must be dismissed.
The issues here are: (1) whether the votes cast in favor of private
respondent should not be counted pursuant to Section 6 of R.A. No.
6646; and (2) whether petitioner, a second
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placer in the May 14, 2001 congressional elections, can be


proclaimed the duly elected Congressman of the 6th District of
Manila.
The issues raised are not novel. In Codilla, Sr. vs. De Venecia, 10 we
expounded on the application of Section 6, R.A. No. 6646. There, we
emphasized that there must be a nal judgment before the election in
order that the votes of a disquali ed candidate can be considered
"stray", thus:
"Section 6 of R.A. No. 6646 and section 72 of the Omnibus Election Code
require a nal judgment before the election for the votes of a disquali ed
candidate to be
considered"stray."Hence,whenacandidatehasnotyetbeendisquali edby nal
judgment during the election day and was voted for, the votes cast in his
favor cannot be declared stray. To do so would amount to disenfranchising
the electorate in whom sovereignty resides."
The obvious rationale behind the foregoing ruling is that in voting
for a candidate who has not been disquali ed by nal judgment during
the election day, the people voted for him bona fide, without any
intention to misapply their franchise, and in the honest belief that the
candidate was then quali ed to be the person to whom they would
entrust the exercise of the powers of government. 11
In the present case, private respondent was declared disquali ed
almost twenty-two (22) months after the May 14, 2001 elections.
Obviously, the requirement of nal judgment before election" is
absent. Therefore, petitioner can not invoke Section 6 of R.A. No.
6646.
Anent the second issue, we revert back to the settled jurisprudence
that the subsequent disquali cation of a candidate who obtained the
highest number of votes does not entitle the candidate who garnered
the second highest number of votes to be declared the winner. 12 This
principle has been reiterated in a number our decisions, such as
Labo, Jr. vs. COMELEC, 13 Abella vs. COMELEC, 14 Benito vs.
COMELEC 15 and Domino vs. COMELEC . 16 As a matter of fact,
even as early as 1912, it was held that the candidate who lost in an
election cannot be proclaimed the winner in the event that the
candidate who won is found to be ineligible for the office for which
he was elected. 17
In Geronimo vs. Ramos, 18 if the winning candidate is not quali ed
and cannot qualify for the of ce to which he was elected, a permanent
vacancy is thus created. The second placer is just that, a second
placer he lost in the elections, he was repudiated by either the
majority or plurality of voters. He could not be proclaimed winner as
he could not be considered the rst among the quali ed candidates. To
rule otherwise is to misconstrue the nature of the democratic
electoral process and the sociological and psychological
underpinnings behind voters' preferences. 19
At any rate, the petition has become moot and academic. The Twelfth
Congress formally adjourned on June 11, 2004. And on May 17,
2004, the City Board of Canvassers proclaimed Bienvenido Abante
the duly elected Congressman of the Sixth District of Manila
pursuant to the May 10, 2004 elections.
In the recent case of Enrile vs. Senate Electoral Tribunal, 20 we ruled
that a case becomes moot and academic when there is no more actual
controversy between the parties or no useful purpose can be served
in passing upon the merits. Worth reiterating is our pronouncement
in Gancho-on vs. Secretary of Labor and Employment, thus: 21
"It is a rule of universal application, almost, that courts of justice
constituted to
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pass upon substantial rights will not consider questions in which no actual
interests are involved; they decline jurisdiction of moot cases. And where
the issue has become moot and academic, there is no justiciable
controversy, so that a declaration thereon would be of no practical use or
value. There is no actual substantial relief to which petitioner would be
entitled and which would be negated by the dismissal of the petition."
WHEREFORE, the petition is hereby DISMISSED. SO ORDERED.
Davide, Jr., C .J ., Carpio, Austria-Martinez, Carpio Morales, Callejo,
Sr., Azcuna and Tinga, JJ ., concur.
Puno, J ., took no part. Participated in HRET case.
Panganiban, J ., took no part. Participated in deliberations in HRET.
Quisumbing, J ., took no part. Prior action in HRET.
Vitug and Corona, JJ ., are on official leave.
Ynares-Santiago, J ., is on leave.
Footnotes
1. Sunga vs. COMELEC, G.R. No. 125629, March 25, 1998, 288
SCRA 76.

2. Petition, Annex "A", Rollo at 2442.

3. Petition, Annex "B", id. at 4344.

4. Petition, Annex "D," id. at 5359.

5. Petition, Annex "E," id. at 6069.

6. Petition, Annex "F," id. at 7074.

7. Petition, id. at 27.

8. Petition, id. at 28.

9. The Electoral reform Law of 1987, January 5, 1988.

10. G.R. No. 150605, December 10, 2002, 393 SCRA 639.

11. Reyes vs. Comelec, G.R. No. 120905, March 7, 1996, 254 SCRA
514; Nolasco vs. Comelec, G.R. Nos. 122250 & 122258, July 21,
1997, 275 SCRA 762.

12. Sunga vs. COMELEC, supra.


13. G.R. No. 86564, August 1, 1989, 176 SCRA 1.

14. G.R. No. 100710, September 3, 1991, 201 SCRA 253.

15. G.R. No. 106053, August 17, 1994, 235 SCRA 436.

16. G.R. No. 134015, July 19, 1999, 310 SCRA 546.

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17. Topacio vs. Paredes, 23 Phil. 238 (1912).

18. G.R. Nos. L-60504, L-60591, 60732-39, May 14, 1985, 136 SCRA
435.

19. Aquino vs. COMELEC, G.R. No. 120265, September 18, 1995, 248
SCRA 400.

20. G.R. No. 132986, May 19, 2004.

21. G.R. No. 108033, April 14, 1997, 271 SCRA 204, 207208.

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PEOPLE OF THE PHIL. vs. CORNELIO BAYONA

EN BANC
[G.R. No. 42288. February 16, 1935.]
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs. CORNELIO BAYONA, defendant-appellant.
Gervasio Diaz for appellant. Solicitor-General Hilado for appellee.
SYLLABUS
1. ELECTIONS; CARRYING OF ARMS WITHIN FIFTY METERS
FROM A POLLING PLACE. The law which the defendant
violated is a statutory provision, and the intent with which he
violated it is immaterial. It may be conceded that the defendant did
not intend to intimidate any elector or to violate the law in any other
way, but when he got out of his automobile and carried his revolver
inside of the fence surrounding the polling place, he committed the
act complained of, and he committed it willfully. The act prohibited
by the Election Law was complete. The intention to intimidate the
voters or to interfere otherwise with the election is not made an
essential element of the offense. Unless an offender actually makes
use of his revolver, it would be extremely difficult, if not impossible,
to prove that he intended to intimidate the voters.
2. ID.; ID.; INTENT TO COMMIT A CRIME AND INTENT TO
PERPETRATE THE ACT. The rule is that in acts mala in se there
must be a criminal intent, but in those mala prohibita it is sufficient if
the prohibited act was intentionally done. "Care must be exercised in
distinguishing the difference between the intent to commit the crime
and the intent to perpetrate the act. . . ." (U.S. vs. Go Chico, 14 Phil.,
128.)
DECISION
VICKERS, J : p

This is an appeal from a decision of Judge Braulio Bejasa in the


Court of First Instance of Capiz, nding the defendant guilty of a
violation of section 416 of the Election Law and sentencing him to
suffer imprisonment for thirty days and to pay a fine of P50, with
subsidiary imprisonment in case of insolvency, and to pay the costs.
The facts as found by the trial judge are as follows:
"A eso de las once de la maana del dia 5 de junio de 1934, mientras se
celebrabanlas elecciones generales en el precinto electoral numero 4,
situado en el Barrio de Aranguel del Municipio de Pilar, Provincia de
Capiz, el aqui acusado fue sorprendido por Jose E. Desiderio, que era
entonces el representante del Departamento del Interior para inspeccionar
las elecciones generales en la Provincia de Capiz, y por el comandante de
la Constabularia F. B. Agdamag que iba en aquella ocasion con el citado
Jose E. Desiderio, portando en su cinto el
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revolver Colt de calibre 32, No. 195382, Exhibit A, dentro del cerco que
rodeaba el edificio destinado para el citado colegio electoral numero 4 y a
una distancia de 22 metros del referido colegio electoral. Inmediatamente
Jose E. Desiderio se incauto del revolver en cuestion.
"La defensa, por medio del testimonio de Jose D. Benliro y de Dioscoro
Buenvenida, trato de establecer que el aqui acusado paro en la calle que
daba frente al colegio electoral numero 4 a invitacion de dicho Jose D.
Benliro y con el objeto de suplicarle al mencionado acusado para llevar a
su casa a los electores del citado Jose D. Benliro que ya habian terminado
de votar, y que cuando llegaron Jose E. Desiderio y el comandante F. B.
Agdamag, el aqui acusado estaba en la calle. Desde el colegio electoral
hasta el sitio en que, segun dichos testigos, estaba el acusado cuando se le
quito el revolver Exhibit A, hay una dustabcua de 27 metros."
Appellant's attorney makes the following assignments of error:
"1. El Juzgado a quo erro al declarar que el apelante fue sorprendido con
revolver dentro del cerco de la casa escuela del Barrio de Aranguel,
Municipio de Pilar, que fue habilitado como colegio electoral.
2. El Juzgado a quo erro al declarar al apelante culpable de la infraccion de
la Ley Electoral querellada y, por consiguiente, al condenarle a prision y
multa."
As to the question of fact raised by the rst assignment of error, it is
suf cient to say that the record shows that the record shows that both
Jose E. Desiderio, a representative of the Department of the Interior,
and Major Agdamag of the Philippine Constabulary, who had been
designated to supervise the elections in the Province of Capiz, testi
ed positively that the defendant was within the fence surrounding the
polling place when Desiderio took possession of the revolver the
defendant was carrying. This also disposes of that part of the
argument under the second assignment of error based on the theory
that the defendant was in a public road, where he had a right to be,
when he was arrested. The latter part of the argument under the
second assignment of error is that if it be conceded that the defendant
went inside of the fence, he is nevertheless not guilty of a violation
of the Election Law, because he was called by a friend and merely
approached him to nd out what he wanted and had no interest in the
election; that there were many people in the public road in front of
the polling place, and the defendant could not leave his revolver in
his automobile, which he himself was driving, without running the
risk of losing it and thereby incurring in a violation of the law.
As to the contention that the defendant could not leave his revolver
in his automobile without the risk of losing it because he was alone,
it is suf cient to say that under the circumstances it was not necessary
for the defendant to leave his automobile merely because somebody
standing near the polling place had called him, nor does the record
show that it was necessary for the defendant to carry arms on that
occasion.
The Solicitor-General argues that since the Government does not
especially construct buildings for electoral precincts but merely
utilizes whatever building there may be available, and all election
precincts are within fty meters from some road, a literal application
of the law would be absurd, because members of the police force or
Constabulary in pursuit of a criminal would be included in that
prohibition and could not use the road in question if they were
carrying rearms; that people living in the vicinity of electoral
precincts would be prohibited from cleaning or handling their rearms
within their own residences on registration and election days;.
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That the object of the Legislature was merely to prohibit the display
of rearms with intention to influence in any way the free and
voluntary exercise of suffrage;.
That if the real object of the Legislature was to insure the free
exercise of suffrage, the prohibition in question should only be
applied when the facts reveal that the carrying of the rearms was
intended for the purpose of using them directly or indirectly to in
uence the free choice of the electors (citing the decision of this court
in the case of People vs. Urdeleon [G. R. No. 31536, promulgated
November 20, 1929, not reported], where a policeman, who had been
sent to a polling place to preserve order on the request of the
chairman of the board of election inspectors, was acquitted); that in
the case at bar there is no evidence that the defendant went to the
election precinct either to vote or to work for the candidacy of
anyone, but no the other hand the evidence shows that the defendant
had no intention to go to the electoral precinct; that he was merely
passing along the road in front of the building where the election was
being held when a friend of his called him; that while in the strict,
narrow interpretation of the law the defendant is guilty, it would be
inhuman and unreasonable to convict him.
We cannot accept the reasons advanced by the Solicitor-General for
the acquittal of the defendant. The law which the defendant violated
is a statutory provision, and the intent with which he violated it is
immaterial. It may be conceded that the defendant did not intend to
intimidate any elector or to violate the law in any other way, but
when he got out of his automobile and carried his revolver inside of
the fence surrounding the polling place, he committed the act
complained of, and he committed it willfully. The act prohibited by
the Election Law was complete. The intention to intimidate the
voters or to interfere otherwise with the election is not made an
essential element of the offense. Unless such an offender actually
makes use of his revolver, it would be extremely difficult, if not
impossible, to prove that he intended to intimidate the voters.
The rule is that in acts mala in se there must be a criminal intent, but
in those mala prohibita it is suf cient if the prohibited act was
intentionally done. "Care must be exercised in distinguishing the
difference between the intent to commit the crime and the intent to
perpetrate the act. . . ." (U. S. vs. Go Chico, 14 Phil., 128.).
"While it is true that, as a rule and a principles of abstract justice, men are
not and should not be held criminally responsible for acts committed by
them without guilty knowledge and criminal or at least evil intent
(Bishop's New Crim. Law, vol. I, sec. 286), the courts have always
recognized the power of the legislature, on grounds of public policy and
compelled by necessity, 'the great master of things', to forbid in a limited
class of cases the doing of certain acts, and to make their commission
criminal without regard to the intent of the doer. (U. S. vs. Go Chico, 14
Phil., 128; U. S. vs. Ah Chong, 15 Phil., 488.) In such cases no judicial
authority has the power to require, in the enforcement of the law, such
knowledge or motive to be shown." (U. S. vs. Siy Cong Bieng and Co
Kong, 30 Phil., 577.)
The cases suggested by the Solicitor-General do not seem to us to
present any dif culty in the enforcement of the law. If a man with a
revolver merely passes along a public road on election day, within
fty meters of a polling place, he does not violate the provision of law
in question, because he had no intent to perpetrate the act prohibited,
and the same thing would be true of a peace of cer in pursuing a
criminal; nor would the prohibition extend to persons living within
fty meters of a polling place, who merely clean or handle their
rearms within their own residences on election day, as they would
not be carrying rearms within the contemplation of the law; and as to
the decision in the case of People vs. Urdeleon, supra, we have
recently held in the case of People vs. Ayre, and Degracia (p. 169.
ante), that a policeman who goes to a polling
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place on the request of the board of election inspectors for the


purpose of maintaining order is authorized by law to carry his arms.
If we were to adopt the specious reasoning that the appellant should
be acquitted because it was not proved that he tried to in uence or
intended to in uence the mind of any voter, anybody could sell
intoxicating liquor or hold a cock ght or a horse race on election day
with impunity.
As to the severity of the minimum penalty provided by law for a
violation of the provision in question, that is a matter for the Chief
Executive or the Legislature.
For the foregoing reasons, the decision appealed from is af rmed,
with the costs against the appellant.
Avancea, C.J., Street, Abad Santos and Hull, JJ., concur.
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EN BANC
[G.R. No. 139853. September 5, 2000.]
FERDINAND THOMAS M. SOLLER, petitioner, vs.
COMMISSION ON ELECTIONS, REGIONAL TRIAL COURT
OF PINAMALAYAN, ORIENTAL MINDORO (Branch 42) and
ANGEL M. SAULONG, respondents.
De Mesa and Ochoa Law Offices for petitioner.
Brillantes Navarro Jumamil Arcilla Escolin and Martinez Law
Offices and The
Solicitor General for respondents.
SYNOPSIS
Petitioner Ferdinand Thomas M. Soller and private respondent Angel
M. Saulong were both candidates for mayor of the Municipality of
Bansud, Oriental Mindoro in the May 11, 1998, elections. On May
14, 1998, Soller was proclaimed by the municipal board of
canvassers as the duly elected mayor. On May 19, 1998, Saulong
filed with the COMELEC a petition for annulment of the
proclamation/exclusion of election return. On May 25, 1998,
Saulong also filed an election protest before the Regional Trial Court
of Pinamalayan, Oriental Mindoro. Soller moved to dismiss
Saulong's protest on the ground of lack of jurisdiction, forum-
shopping and failure to state a cause of action. On July 3, 1998, the
COMELEC dismissed the petition filed by Saulong. On the other
hand, the trial court denied Soller's motion to dismiss. His motion for
reconsideration was also denied. Soller then filed a petition for
certiorari with the COMELEC contending that respondent RTC
acted without or in excess of jurisdiction or with grave abuse of
discretion in not dismissing private respondent's election protest. On
August 31, 1999, the COMELEC en banc dismissed the said
petition. Hence, Soller filed the instant petition. ESAHca

This Court found that petitioner's petition with the COMELEC was
not referred to a division of that Commission but was, instead,
submitted directly to the Commission en banc. The petition for
certiorari assailed the trial court's order denying the motion to
dismiss private respondent's election protest. The questioned order of
the trial court is interlocutory because it does not end the trial court's
task of adjudicating the parties' contentions and determining their
rights and liabilities as regards each other. The authority to resolve a
petition for certiorari involving incidental issues of election protest,
like the questioned order of the trial court; falls within the division of
the COMELEC and not on the COMELEC en banc. Clearly, the
COMELEC en banc acted without jurisdiction in taking cognizance
of petitioner's petition in the first instance.
In order to write finis to the controversy at bar, the Court resolved the
issues raised by petitioner. A close scrutiny of the receipts will show
that private
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respondent failed to pay the filing fee of P300.00 for his protest as
prescribed by the COMELEC rules. A court acquires jurisdiction
over any case only upon the payment of the prescribed docket fee.
Patently, the trial court did not acquire jurisdiction over private
respondent's election protest. Therefore, COMELEC gravely erred in
not ordering the dismissal of private respondent's protest case. The
Court noted that the verification of aforesaid protest was defective.
Since the petition lacked proper verification, it should be treated as
an unsigned pleading and must be dismissed. Further, the Court
found that private respondent did not comply w ith the required
certification against forum shopping. Private respondent successively
filed a "petition for annulment of the proclamation/exclusion of
election return" and an election protest. Yet, he did not disclose in his
election protest that he earlier filed a petition for annulment of
proclamation/exclusion of election returns.
The instant petition was GRANTED.
SYLLABUS
1. POLITICAL LAW; CONSTITUTIONAL LAW;
CONSTITUTIONAL COMMISSIONS; COMMISSION ON
ELECTIONS; JURISDICTION; COMELEC EN BANC DOES NOT
HAVE THE AUTHORITY TO HEAR AND DECIDE ELECTION
CASES IN THE FIRST INSTANCE. Section 3, Subdivision C of
Article IX of the Constitution reads: "The Commission on Elections
may sit en banc or in two divisions, and shall promulgate its rules of
procedure in order to expedite the disposition of election cases,
including pre-proclamation controversies. All such election cases
shall be heard and decided in division, provided that motions for
reconsideration of decision shall be decided by the Commission en
banc." Thus, in Sarmiento vs. COMELEC and in subsequent cases,
we ruled that the COMELEC, sitting en banc, does not have the
requisite authority to hear and decide election cases including pre-
proclamation controversies in the first instance. This power pertains
to the divisions of the Commission. Any decision by the Commission
en banc as regards election cases decided by it in the first instance is
null and void. DHCcST

2. ID.; ID.; ID.; ID.; ID.; AUTHORITY TO RESOLVE PETITION


FOR CERTIORARI INVOLVING INCIDENTAL ISSUES OF
ELECTION PROTEST FALLS WITHIN THE DIVISION OF THE
COMELEC. The petition for certiorari assails the trial court's
order denying the motion to dismiss private respondent's election
protest. The questioned order of the trial court is interlocutory
because it does not end the trial court's task of adjudicating the
parties' contentions and determining their rights and liabilities as
regards each other. In our view, the authority to resolve petition for
certiorari involving incidental issues of election protest, like the
questioned order of the trial court falls within the division of the
COMELEC and not on the COMELEC en banc. Note that the order
denying the motion to dismiss is but an incident of the election
protest. If the principal case, once decided on the merits, is
cognizable on appeal by a division of the COMELEC, then, there is
no reason why petitions for certiorari relating to incidents of election
protest should not be referred first to a division of the COMELEC for
resolution. Clearly, the COMELEC en banc acted without
jurisdiction in taking cognizance of petitioner's petition in the first
instance.
3. REMEDIAL LAW; COURTS; JURISDICTION; ACQUIRED
ONLY UPON PAYMENT OF
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THE PRESCRIBED DOCKET FEE; NOT COMPLIED WITH IN


CASE AT BAR. Close scrutiny of the receipts will show that
private respondent failed to pay the filing fee of P300.00 for his
protest as prescribed by the COMELEC rules. The amount of
P368.00 for which OR 7023752 was issued for the Judiciary
Development Fund as shown by the entries in the cash book of the
clerk of court. Thus, only P32.00 with OR 7022478 credited to the
general fund could be considered as filing fee paid by private
respondent for his protest. A court acquires jurisdiction over any case
only upon the payment of the prescribed docket fee. Patently, the
trial court did not acquire jurisdiction over private respondent's
election protest.
4. ID.; ID.; ID.; ID.; ERRORS IN THE PAYMENT OF FILING
FEES IN ELECTION CASES ARE NO LONGER EXCUSABLE.
We have in a string of cases had the occasion to rule on this
matter. In Loyola vs. COMELEC, the clerk of court assessed private
respondent therein the incorrect filing fee of P32.00 at the time of
filing of the election protest. Upon filing his counter-protest,
petitioner was assessed to pay the same amount. Subsequently, the
trial court remedied the situation by directing the parties to pay the
balance of P268.00. On review, we held that the lapse was not at all
attributable to private respondent and there was substantial
compliance with the filing fee requirement. The error lies in the
Clerk's misapplication and confusion regarding application of
Section 9 of Rule 35 of the COMELEC Rules of Procedure and this
Court's resolution dated September 4, 1990 amending Rule 141 of
the Rules of Court. An election protest falls within the exclusive
original jurisdiction of the Regional Trial Court, in which case the
Rules of Court will apply, and that the COMELEC Rules of
Procedure is primarily intended to govern election cases before that
tribunal. But the Court declared that this decision must not provide
relief to parties in future cases involving inadequate payment of
filing fees in election cases. Our decisions in Pahilan and Gatchalian
bar any claim of good faith, excusable negligence or mistake in any
failure to pay the full amount of filing fees in election cases. . . .
Clearly then, error in the payment of filing fees in election cases is
no longer excusable.
5. POLITICAL LAW; ELECTION LAWS; ELECTION PROTEST;
PETITION THAT LACKS PROPER VERIFICATION SHOULD BE
TREATED AS AN UNSIGNED PLEADING AND MUST BE
DISMISSED. We note that the verification of aforesaid protest is
defective. In the verification, private respondent merely stated that he
caused the preparation of his petition and he has read and understood
all the allegations therein. Certainly, this is insufficient as private
respondent failed to state that the contents of his election protest are
true and correct of his personal knowledge. Since the petition lacks
proper verification, it should be treated as an unsigned pleading and
must be dismissed.
6.REMEDIAL LAW; SUPREME COURT ADMINISTRATIVE
CIRCULAR No. 04-94; CERTIFICATE OF NON-FORUM
SHOPPING; NOT COMPLIED WITH IN CASE AT BAR. [W]e
find that private respondent did not comply with the required
certification against forum shopping. Private respondent successively
filed a "petition for annulment of the proclamation/exclusion of
election return" and an election protest. Yet, he did not disclose in his
election protest that he earlier filed a petition for annulment of
proclamation/exclusion of election returns. IcaEDC

7. ID.; ID.; ID.; PARTY'S BELIEF THAT HE NO LONGER HAD A


PENDING CASE BEFORE THE COMELEC BECAUSE HE
DEEMED THE PRE-PROCLAMATION CASE ABANDONED
UPON FILING OF ELECTION PROTEST IS NOT A VALID
REASON FOR
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NON-DISCLOSURE. [P]rivate respondent's belief that he no


longer had a pending case before the COMELEC because he deemed
it abandoned upon filing of his protest is not a valid reason for non-
disclosure of the pendency of said pre- proclamation case. Note that
the COMELEC dismissed private respondent's pre- proclamation
case only on July 3, 1998. Before the dismissal, said case was legally
still pending resolution.
8. ID.; ID.; ID.; THE FACT THAT ELECTION PROTEST WAS
NOT BASED ON SAME CAUSE OF ACTION AS THE PRE-
PROCLAMATION CASE IS NOT A VALID EXCUSE FOR NON-
COMPLIANCE THEREWITH. [T]he fact that private
respondent's protest was not based on the same cause of action as his
pre-proclamation case is not a valid excuse for not complying with
the required disclosure in the certification against forum shopping.
9. ID.; ID.; ID.; MANDATORY. The requirement to file a
certificate of non-forum shopping is mandatory. Failure to comply
with this requirement cannot be excused by the fact that a party is not
guilty of forum shopping. The rule applies to any complaint, petition,
application or other initiatory pleading, regardless of whether the
party filing it has actually committed forum shopping. Every party
filing any initiatory pleading is required to swear under oath that he
has not and will not commit forum shopping. Otherwise we would
have an absurd situation, as in this case, where the parties themselves
would be the judge of whether their actions constitute a violation of
the rule, and compliance therewith would depend on their belief that
they might or might not have violated the requirement. Such
interpretation of the requirement would defeat the very purpose of
the rule.
10. POLITICAL LAW; ELECTION LAWS; PRE-
PROCLAMATION CONTROVERSIES; SHOULD NOT BE
ENTERTAINED BY THE COMELEC AFTER THE WINNING
CANDIDATES WERE PROCLAIMED. It could be argued that
private respondent's petition for annulment of proclamation/
exclusion of election returns was a pre- proclamation case. The
issues raised in that petition pertain to the preparation and
appreciation of election returns and the proceedings of the municipal
board of canvassers. But note that such petition was filed after the
proclamation of petitioner as the winning candidate, thus, the petition
was no longer viable, for pre-proclamation controversies may no
longer be entertained by the COMELEC after the winning candidates
have been proclaimed. cCAIES

RESOLUTION
QUISUMBING, J : p

This special civil action for certiorari seeks to annul the resolution
promulgated on August 31, 1999, in COMELEC special relief case
SPR No. 10-99. The resolution dismissed petitioner's petition to set
aside the orders of the Regional Trial Court of Pinamalayan, Oriental
Mindoro, dated October 1, 1998 and February 1, 1999, which denied
petitioner's motion to dismiss the election protest filed by private
respondent against petitioner and the motion for
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reconsideration, respectively.
Petitioner and private respondent w ere both candidates for mayor of
the municipality of Bansud, Oriental Mindoro in the May 11, 1998
elections. On May 14, 1998, the municipal board of canvassers
proclaimed petitioner Ferdinand Thomas Soller duly elected mayor.
On May 19, 1998, private respondent Angel Saulong filed with the
COMELEC a 'petition for annulment of the proclamation/exclusion
of election return". 1 On M a y 2 5 , 1 9 9 8 , p r i v a t e r e s p o n d e
n t fi l e d w i t h t h e R e g i o n a l Tr i a l C o u r t o f Pinamalayan,
Oriental Mindoro, an election protest against petitioner docketed as
EC-31-98.
On June 15, 1998, petitioner filed his answer with counter-protest.
Petitioner also moved to dismiss private respondent's protest on the
ground of lack of jurisdiction, forum-shopping, and failure to state
cause of action. 2
On July 3, 1998, COMELEC dismissed the pre-proclamation case
filed by private respondent.
On October 1, 1998, the trial court denied petitioner's motion to
dismiss. Petitioner moved for reconsideration but said motion was
denied. Petitioner then filed with the COMELEC a petition for
certiorari contending that respondent RTC acted without or in excess
of jurisdiction or with grave abuse of discretion in not dismissing
private respondent's election protest.
On August 31, 1999, the COMELEC en banc dismissed petitioner's
suit. The election tribunal held that private respondent paid the
required filing fee. It also declared that the defect in the verification
is a mere technical defect which should not bar the determination of
the merits of the case. The election tribunal stated that there was no
forum shopping to speak of. ADSTCI
Under the COMELEC Rules of Procedure, a motion for
reconsideration of its en banc ruling is prohibited except in a case
involving an election offense. 3 Since the present controversy
involves no election offense, reconsideration is not possible and
petitioner has no appeal or any plain, speedy and adequate remedy in
the ordinary course of law. Accordingly, petitioner properly filed the
instant petition for certiorari with this Court.
On September 21, 1999, we required the parties to maintain the
status quo ante prevailing as of September 17, 1999, the date of
filing of this petition.
Before us, petitioner asserts that the COMELEC committed grave
abuse of discretion amounting to lack or excess of jurisdiction:
[I]
. . . IN AFFIRMING RESPONDENT RTC'S REFUSAL TO DISMISS
PRIVATE RESPONDENT'S ELECTION PROTEST DESPITE HIS (sic)
LACK OF JURISDICTION OVER THE SAME BY REASON OF THE
FAILURE OF THE PRIVATE RESPONDENT TO PAY ALL THE
REQUISITE FILING FEES.
[II]
. . . IN AFFIRMING RESPONDENT'S RTC'S REFUSAL TO DISMISS
PRIVATE RESPONDENT'S ELECTION PROTEST DESPITE THE
INSUFFICIENCY OF HIS
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PETITION IN FORM AND SUBSTANCE AND ITS FAILURE TO


STATE A CAUSE OF ACTION.
[III]
. . . IN AFFIRMING RESPONDENT RTC'S REFUSAL TO DISMISS
THE ELECTION PROTEST BELOW ON THE GROUNDS OF FORUM-
SHOPPING AND FAILURE TO COMPLY W ITH THE SUPREME
COURT CIRCULAR REQUIRING A TRUTHFUL CERTIFICATION OF
NON-FORUM SHOPPING DESPITE INCONTROVERTIBLE
EVIDENCE THEREOF. 4
In our view, notwithstanding petitioner's formulation of issues, the
principal question presented for our resolution is whether or not
public respondent COMELEC gravely abused its discretion
amounting to lack or excess of jurisdiction in not ordering the
dismissal of private respondent's election protest.
At the outset, even if not squarely raised as an issue, this Court needs
to resolve the question concerning COMELEC's jurisdiction. Unless
properly resolved, we cannot proceed further in this case.
Section 3, Subdivision C of Article IX of the Constitution reads:
"The Commission on Elections may sit en banc or in two divisions, and
shall promulgate its rules of procedure in order to expedite the disposition
of election cases, including pre-proclamation controversies. All such
election cases shall be heard and decided in division, provided that
motions for reconsideration of decision shall be decided by the
Commission en banc." EIDATc

Thus, in Sarmiento vs. COMELEC 5 and in subsequent cases, 6 we


ruled that the COMELEC, sitting en banc, does not have the
requisite authority to hear and decide election cases including pre-
proclamation controversies in the first instance. This power pertains
to the divisions of the Commission. Any decision by the Commission
en banc as regards election cases decided by it in the first instance is
null and void.
As can be gleaned from the proceedings aforestated, petitioner's
petition with the COMELEC was not referred to a division of that
Commission but was, instead, submitted directly to the Commission
en banc. The petition for certiorari assails the trial court's order
denying the motion to dismiss private respondent's election protest.
The questioned order of the trial court is interlocutory because it
does not end the trial court's task of adjudicating the parties'
contentions and determining their rights and liabilities as regards
each other. 7 In our view, the authority to resolve petition for
certiorari involving incidental issues of election protest, like the
questioned order of the trial court, falls within the division of the
COMELEC and not on the COMELEC en banc. Note that the order
denying the motion to dismiss is but an incident of the election
protest. If the principal case, once decided on the merits, is
cognizable on appeal by a division of the COMELEC, then, there is
no reason why petitions forcertiorari relating to incidents of election
protest should not be referred first to a division of the COMELEC for
resolution. Clearly, the COMELEC en banc acted without
jurisdiction in taking cognizance of petitioner's petition in the first
instance.
Since public respondent COMELEC had acted without jurisdiction
in this case, the petition herein is without doubt meritorious and has
to be granted. But in order
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to write finis to the controversy at bar, we are constrained to also


resolve the issues raised by petitioner, seriatim.
Petitioner contends that private respondent's protest should have
been dismissed outright as the latter failed to pay the amount of
P300.00 filing fee required under the COMELEC rules. 8 Petitioner's
contention is supported by Section 9, Rule 35 of the COMELEC
Rules of Procedure 9 and corresponding receipts 10 itemized as
follows:
P 368.00 Filing fee in EC 31-98, O.R. 7023752;
P 32.00 Filing fee in EC 31-98, O.R. 7022478;
P 46.00 Summons fee in EC 31-98, O.R. 7023752;
P 4.00 Summons fee in EC 31-98, O.R. 4167602;
P 10.00 Legal Research Fund fee, O.R. 2595144, and; P 5.00 Victim
Compensation Fund, O.R. 4167979
P465.00
Close scrutiny of the receipts will show that private respondent failed
to pay the filing fee of P300.00 for his protest as prescribed by the
COMELEC rules. The amount of P368.00 for which OR 7023752
was issued for the Judiciary Development Fund as shown by the
entries in the cash book of the clerk of court. 11 Thus, only P32.00
with OR 7022478 credited to the general fund could be considered as
filing fee paid by private respondent for his protest. A court acquires
jurisdiction over any case only upon the payment of the prescribed
docket fee. 12 Patently, the trial court did not acquire jurisdiction over
private respondent's election protest. Therefore, COMELEC gravely
erred in not ordering the dismissal of private respondent's protest
case.
We have in a string of cases 13 had the occasion to rule on this matter.
In Loyola vs. COMELEC, the clerk of court assessed private
respondent therein the incorrect filing fee of P32.00 at the time of
filing of the election protest. Upon filing his counter-protest,
petitioner was assessed to pay the same amount. Subsequently, the
trial court remedied the situation by directing the parties to pay the
balance of P268.00. On review, we held that the lapse was not at all
attributable to private respondent and there was substantial
compliance with the filing fee requirement. The error lies in the
Clerk's misapplication and confusion regarding application of
Section 9 of Rule 35 of the COMELEC Rules of Procedure and this
Court's resolution dated September 4, 1990 amending Rule 141 of
the Rules of Court. An election protest falls within the exclusive
original jurisdiction of the Regional Trial Court, in which case the
Rules of Court will apply, and that the COMELEC Rules of
Procedure is primarily intended to govern election cases before that
tribunal. But the Court declared that this decision must not provide
relief to parties in future cases involving inadequate payment of
filing fees in election cases. Our decisions in Pahilan and Gatchalian
bar any claim of good faith, excusable negligence or mistake in any
failure to pay the full amount of filing fees in election cases.
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I n Miranda vs. Castillo, private respondents each paid per


assessment the amount of P465.00 as filing fees. Of this amount,
P414.00 was allocated for the JDF, P10.00 for legal research fund,
P5.00 for victim compensation fee, and only the amount of P32.00
was regarded as filing fee. The Court considered the amount as
partial payment of the P300.00 filing fee under the COMELEC rules
and required payment of the deficiency in the amount of P268.00.
But then again, the Court reiterated the caveat that in view of
Pahilan, Gatchalian, and Loyola cases we 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 27, 1997.
Clearly then, error in the payment of filing fees in election cases is
no longer excusable. And the dismissal of the present case for that
reason is, in our view, called for. HCEcaT

Besides, there is another reason to dismiss private respondent's


election protest. We note that the verification of aforesaid protest is
defective. In the verification, private respondent merely stated that he
caused the preparation of his petition and he has read and understood
all the allegations therein. 14 Certainly, this is insufficient as private
respondent failed to state that the contents of his election protest are
true and correct of his personal knowledge. 15 Since the petition lacks
proper verification, it should be treated as an unsigned pleading and
must be dismissed. 16
Further, we find that private respondent did not comply with the
required certification against forum shopping. Private respondent
successively filed a "petition for annulment of the proclamation/
exclusion of election return" and an election protest. Yet, he did not
disclose in his election protest that he earlier filed a petition for
annulment of proclamation/exclusion of election returns.
I t co u l d b e a r g u e d t h a t p r i v a t e r e s p o n d e n t ' s p e t i t
i o n f o r a n n u l m e n t o f proclamation/exclusion of election
returns was a pre-proclamation case. The issues raised in that petition
pertain to the preparation and appreciation of election returns and the
proceedings of the municipal board of canvassers. But note that such
petition was filed after the proclamation of petitioner as the winning
candidate, thus, the petition was no longer viable, for pre-
proclamation controversies may no longer be entertained by the
COMELEC after the winning candidates have been proclaimed. It
might even be claimed with some reason that private respondent, by
resorting to the wrong remedy, abandoned his pre- proclamation case
earlier filed. 17
Nonetheless, private respondent's belief that he no longer had a
pending case before the COMELEC because he deemed it
abandoned upon filing of his protest is not a valid reason for non-
disclosure of the pendency of said pre-proclamation case. Note that
the COMELEC dismissed private respondent's pre-proclamation case
only on July 3, 1998. Before the dismissal, said case was legally still
pending resolution. Similarly, the fact that private respondent's
protest was not based on the same cause of action as his pre-
proclamation case is not a valid excuse for not complying with the
required disclosure in the certification against forum shopping. The
requirement to file a certificate of non-forum shopping is mandatory.
Failure to comply with this requirement cannot be excused by the
fact that a party is not guilty of forum shopping. The rule applies to
any
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complaint, petition, application or other initiatory pleading,


regardless of whether the party filing it has actually committed forum
shopping. Every party filing any initiatory pleading is required to
swear under oath that he has not and will not commit forum
shopping. Otherwise we would have an absurd situation, as in this
case, where the parties themselves would be the judge of whether
their actions constitute a violation of the rule, and compliance
therewith would depend on their belief that they might or might not
have violated the requirement. Such interpretation of the requirement
would defeat the very purpose of the rule. 18
Taking into account all the foregoing circumstances in this case, we
are persuaded that respondent Regional Trial Court erred and
committed grave abuse of discretion in failing to dismiss private
respondent's election protest against petitioner. And to reiterate,
respondent COMELEC en banc had no jurisdiction to affirm the
refusal of respondent trial court to dismiss private respondent's
election protest.
WHEREFORE, the instant petition is GRANTED. The assailed
RESOLUTION of public respondent COMELEC is hereby
ANNULLED AND SET ASI DE. The temporary restraining order
issued by this Court on September 21, 1999, is made permanent. The
Regional Trial Court of Pinamalayan, Oriental Mindoro, Branch 42,
is hereby ordered to DISMISS election protest EC No. 31-98. Costs
against private respondent.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza,
Panganiban, Purisima,
Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr.,
JJ., concur. Footnotes
1. Rollo, pp. 72-81.
2. Id. at 87-100, 114-117.
3. Section 1(d), Rule 13, 1993 COMELEC Rules of Procedure, as
amended.
4. Rollo, p. 28.
5. 212 SCRA 307, 313 (1992).
6. Abad vs. COMELEC, GR 128877, December 10, 1999; Zarate vs.
COMELEC, G.R. No. 129096, November 19, 1999.
7. Atienza vs. Court of Appeals, 232 SCRA 737, 744 (1994).
8. Id., at 605, 612.
9. 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.
If a claim for damages and attorney's fees are set forth in a protest,
counter-protest or protest-in-intervention, an additional filing fee shall be
paid in accordance with
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the schedule provided for in the Rules of Court of the Philippines. 10.
Rollo, pp. 112-113, 229, 271, 315, 33, 333, 404, 407.
11. Id. at 331.
12. Suson vs. Court of Appeals, 278 SCRA 284, 291 (1997).
13. Miranda vs. Castillo, 274 SCRA 503 (1997); Loyola vs. COMELEC,
337 Phil 134 (1997); Gatchalian vs. Court of Appeals, 315 Phil 195
(1995); Pahilan vs. Tabalba, 230 SCRA 205 (1994).
14. Rollo, p. 85.
15. A.M. No. 00-2-10-SC, effective 1 May 2000 provides that "a pleading
is verified by an affidavit that the affiant has read the pleading and that the
allegations therein are true and correct of his personal knowledge or based
on authentic records."
16. Section 4, Rule 7, 1997 Rules of Civil Procedure.
17. Laodenio vs. COMELEC, 276 SCRA 705, 713-714 (1997).
18. Melo vs. Court of Appeals, GR-123686, November 16, 1999, p. 7.
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