G.R. No.
141952-53 April 20, 2001
RODOLFO DUMAYAS, JR., petitioner,
vs.
COMMISSION ON ELECTIONS, THE MUNICIPAL BOARD OF
CANVASSERS OF THE MUNICIPALITY OF CARLES, PROVINCE OF
ILOILO and FELIPE BERNAL, JR., respondents.
QUISUMBING, J.:
In this special civil action, petitioner Rodolfo Dumayas, Jr., seeks to
nullify the Resolution promulgated March 2, 2000 by the Commission
on Elections (COMELEC) en banc, reversing that of the Second Division
dated August 4, 1998, which annulled the petitioners proclamation as
Municipal Mayor of Carles, Iloilo.
The antecedent facts of the case, as found by the COMELEC en banc,
are as follows:
Petitioner Dumayas, Jr. and respondent Bernal, Jr.
were rival candidates for the position of mayor in
Carles, Iloilo last 11 May 1998 synchronized
elections.1wphi1.nt
During the canvassing on 13 May 1998, election
returns for precinct nos. 61A, 62A, and 63A/64A all
of Barangay Pantalan was protested for inclusion
in the canvass before the Municipal Board of
Canvassers (MBC for brevity) by petitioner-
appellant Dumayas Jr. The grounds relied upon for
their exclusion are all the same- that is, "violation
of Secs. 234, 235, 236 of the Omnibus Election
Code and other election laws; acts of terrorism,
intimidation, coercion, and similar acts prohibited
by law." Appellant Dumayas, Jr. submitted his
evidence to the Board of Canvassers on 14 May
1998 which consist of (a) the joint affidavits
executed by LAMMP watchers for precinct 61A:
Teresita Oblido, Reyland de la Rosa, and Armando
Flores [signed by Oblido and Flores only]; (b)
affidavit of petitioners supporter Virgilisa Capao;
(c) joint affidavit of precinct 63A watcher Nona
Dichosa and precinct 62A watcher Daniel
Carmona; (d) blotter report dated 12 May 1998 of
Carles PNP, Iloilo; and (d) corroborating affidavit of
LAMMP supporter Honorato Gallardo.
All the affidavits submitted by petitioner contain
similar attestations such as: certain local barangay
(sic) officials were inside the polling place during
the casting and counting of votes, or acted as
watcher of respondent; SPO3 Gilbert Sorongon
who was in shorts and t-shirt armed with an
armalite roamed around and inside the polling
places; a CVO in uniform was roaming precinct
63A; the presence of the public officials posed
threat and intimidation driving most of the
watchers of other political parties away; the BEIs
were so intimidated and coerced that no election
return was prepared simultaneous with the
tallying; the election returns were prepared under
duress; the voters were coerced to vote for certain
favored candidates especially herein respondent;
petitioners watchers were made to sign or affix
their thumbmarks on the already prepared
election returns; in precinct 63A/64A, the voting
ended at almost 9:00 P.M. without the BEI
members writing the names of such voters.
Petitioner also submitted a certification issued by
PO3 Tito Billones, Desk Officer of PNP Carles
representing the blotter report (extracted from the
police log book) which states that on 12 May 1998,
Virgilisa Capao reported to the Police Station of
Carles, Iloilo that PO3 Sorongon and Brgy. Capt.
Mahilum entered Precinct 63A with (sic) the
company of other CVO and Brgy. Kagawad during
election. And that these people gravely
intimidated the voters by telling them the names
of the candidates they should vote for. It also
states that PO3 Sorongon was not in his prescribed
uniform when seen with hand grenades hanging
on his neck and carrying an armalite roaming
inside and outside the polling place.
On the other hand, respondent Bernal, Jr. in
vehemently denying the allegations of petitioner,
submitted joint affidavits of the members of the
different Boards of Election Inspectors for precinct
nos. 61A, 62A and 63A/64A.
xxx
All the supplemental affidavits of the different BEIs
categorically declared that the elections in their
respective precincts "starting from the start of the
voting to its closing, to the counting of votes and
to the preparation and submission of election
returns" were peaceful, clean, orderly and no acts
of terrorism, intimidation, coercion and similar acts
prohibited by law was (sic) exerted on anybody
including the voters and members of the BEIs.
They all attested that the incidents alleged by
petitioners watchers did not happen. The alleged
terrorism, coercion, or violation of election laws
like the opening of ballots and reading the votes
allegedly done by certain public officials like SPO3
Sorongon, Nody Mahilum, Anonia Barrios, Telesforo
Gallardo and others are not true, the truth being
that these people were only inside the polling
place to exercise their right of suffrage. They also
vehemently denied that the election returns were
not simultaneously prepared with the tallying and
counting of votes. They stressed that as public
school teachers, they cannot risk their future and
career and will not allow or tolerate anybody to
make a mockery of the electoral process to (sic)
which they were duly sworn to uphold.
Nody Mahilum and PO3 Gilbert Sorongon also
executed a joint affidavit denying the accusations
of Dumayas, Jr. and his watchers stating therein
that they only entered their respective precinct-
polling place in order to exercise their right of
suffrage and that the election in the three
precincts of Barangay Pantalan was orderly,
peaceful, and honest which (sic) truly reflects the
will of the electorate.
x x x1
In the afternoon of May 14, 1998, the Municipal Board of Canvassers
denied petitioners objection to the inclusion of the contested returns
and proceeded with the canvass. The results of the voting were as
follows:
Petitioner filed a Notice of Appeal before the MBC on May 15, 1998.
The appeal was given due course by the COMELEC Second
Division3 which rendered a resolution dated August 4, 1998, disposing
as follows:
WHEREFORE, finding the preparation of the
contested election returns to be tainted with
irregularities, this Commission (SECOND DIVISION)
RESOLVED, as it hereby RESOLVES, to EXCLUDE
Election Return No. 3000976 from Precinct No. 61-
A; Election Return No. 3000977 from Precinct No.
62-A; and Election return No. 3000978 from
Precinct Nos. 63-A/64-A (clustered).
Respondent Mun(i)cipal Board of Canvassers is
hereby directed to RECONVENE and FINISH the
canvass of the remaining or uncontested returns
and thereafter, PROCLAIM the winning mayoralty
candidate of Carles, Iloilo.
SO ORDERED.4
On August 10, 1998, private respondent Felipe Bernal, Jr., filed a
motion for reconsideration of the above-cited resolution with the
COMELEC en banc.
On August 12, 1998, an order certifying that the motion for
reconsideration and records of the case were elevated to the
COMELEC en banc was signed by Commissioner Julio F. Desamito and
issued by the Clerk of the Commission.
Pending resolution of the motion for reconsideration and pursuant to
the resolution of the COMELEC Second Division, Election Officer
Rolando Dalen set the reconvening of the MBC on August 13, 1998, for
the continuation of canvass proceedings and proclamation of winning
candidates for Vice-Mayor and Municipal Councilors of Carles, Iloilo. No
winner for the position of Mayor was proclaimed since private
respondent was able to present a copy of his motion for
reconsideration before the MBC. The MBC then reset the date for
reconvening of the board on August 17, 1998, after confirming by
phone with COMELEC-Manila that a motion for reconsideration was
indeed filed by private respondent. Thereafter, the MBC ruled that
proclamation of the winning candidate for Mayor would proceed on
August 17, 1998 unless private respondent could present a certification
from the COMELEC that the motion for reconsideration was elevated to
the COMELEC en banc.
On August 17, 1998, despite presentation of the August 12, 1998
order, petitioner was proclaimed winner of the election after excluding
from the canvass the election returns from the three contested
precincts in accordance with the COMELEC Second Division Resolution.
The MBC, with its Vice-Chairman dissenting, justified its act by
reasoning that it did not receive an official copy of the order directing
the elevation of the case to the banc.
The following day, private respondent immediately filed an urgent
motion to declare void ab initio the proclamation of petitioner on the
ground that the resolution of the COMELEC Second Division was not yet
final and executory. For his part, petitioner opposed both the motion for
reconsideration and motion to declare void ab initio his proclamation
as Mayor of Carles, asserting that private respondent failed to show
palpable errors to warrant reconsideration of said resolution and
maintaining, at the same time, that his proclamation was legal since
respondent failed to produce the certification required by the MBC.
Meanwhile, on August 25, 1998, the duly-proclaimed Vice-Mayor Arnold
Betita filed an action for quo warranto5against petitioner before the
Regional Trial Court of Iloilo, Branch 66. Docketed as Spl. Civil Action
No. 98-141, said petition included respondent Bernal as one of the
petitioners together with Vice-Mayor Betita.
On September 18, 1998, petitioner filed before the COMELEC en banc a
motion to expunge respondent Bernals motion for reconsideration and
motion to declare petitioners proclamation void ab initio, on the
ground that respondent Bernal should be deemed to have abandoned
said motions by the filing of Spl. Civil Action No. 98-141 which,
according to petitioner, is a formal election protest via quo
warranto brought before the regular courts.
In a resolution dated August 24, 1999 but promulgated on March 2,
2000, the COMELEC en banc denied petitioners motion to expunge,
thus:
WHEREFORE, premises considered, the Resolution
of the Second Division is hereby REVERSED and
SET ASIDE and the proclamation of Rodolfo
Dumayas, Jr. is hereby ANNULLED. A new
Municipal Board of Canvassers of Carles, Iloilo is
hereby constituted with the following members:
Atty. Nelia Aureus, Chairman; Atty. Rosel Abad,
Vice-Chairman; and Atty. Manuel Lucero, Third
Member all of Election Contests and Adjudication
Department of the Commission. They are directed
to convene at Session Hall of the COMELEC Main
Office, Manila on the tenth (10 th) day from the date
of promulgation of this Resolution with notice to
the parties. The new board of canvassers shall
complete the canvassing of all the returns and
proceed with the proclamation of the true winner
for the position of mayor of Carles, Iloilo. Petitioner
Rodolfo Dumayas, Jr. is hereby directed to cease
and desist from performing the functions of the
office of mayor of Carles, Iloilo. Election Officer
Rolando Dalen is hereby directed to bring to the
Commissions Main Office the election returns of
Carles, Iloilo which need to be canvassed and the
other election documents necessary for the
canvassing and proclamation and turn them over
to the new board of canvassers.1wphi1.nt
The Law Department is directed to investigate the
election offense allegedly committed by PO3
Gilbert Sorongon on election day.
Let the Deputy Executive Director for Operations
of the Commission implement this Resolution with
dispatch giving a copy thereof to the Secretary of
the Department of Interior and Local Government.
SO ORDERED.6
On March 13, 2000, respondent Bernal, Jr. was proclaimed by the
newly-constituted Municipal Board of Canvassers as the duly-elected
Mayor of the Municipality of Carles, thereby unseating petitioner
Dumayas.
Hence, this instant special civil action where he alleges that:
A. RESPONDENT COMMISSION ERRED IN NOT HOLDING THAT,
PRIVATE RESPONDENT FELIPE BERNAL JR. IS DEEMED TO
HAVE ABANDONED HIS MOTION FOR RECONSIDERATION
BEFORE THE COMMISSION ON ELECTION EN BANC
CONSIDERING THAT PRIVATE RESPONDENT, TOGETHER WITH
ARNOLD BETITA FILED AN ELECTION CASE THRU A QUO
WARRANTO, BEFORE THE REGIONAL TRIAL COURT OF ILOILO
BRANCH 66, DOCKETED AS CASE NO. 98-141.
B. RESPONDENT COMMISSION ERRED IN UPHOLDING THE
INCLUSION FOR CANVASS THE THREE ELECTION RETURNS
FOR PRECINCT NOS. 61-A, 62-A, and 63-A/64-A (CLUSTERED)
BY THE MUNICIPAL BOARD OF CANVASSERS OF CARLES,
ILOILO NOTWITHSTANDING THE FACT THAT THERE IS CLEAR
AND SUFFICIENT EVIDENCE TO SHOW THAT THE ELECTION
RETURNS FOR THESE THREE PRECINCT(S) WERE PREPARED
UNDER DURESS AND NOT PREPARED SIMULTANEOUSLY WITH
THE COUNTING OF VOTES.
C. THE RESOLUTION PROMULGATED ON MARCH 2, 2000 IS
ILLEGAL AS IT WAS VIOLATIVE OF ARTICLE IX (A) SECTION 7
OF THE CONSTITUTION CONSIDERING THAT ONLY FOUR
COMMISSIONERS VOTED TO REVERSE THE RESOLUTION
DATED AUGUST 4, 1998 OF THE SECOND DIVISION
COMMISSION ON ELECTION AND THAT, TWO
COMMISSIONER(S) HAVE ALREADY RETIRED, AT THE TIME OF
THE PROMULGATION.7
The following are the issues to be resolved: (1) Should respondent
Bernal, who was named as petitioner in the quo warranto proceedings
commenced before the regular court, be deemed to have abandoned
the motions he had filed with respondent Commission? (2) Did the
COMELEC err in ordering the inclusion of the contested election returns
in the canvassing of ballots? (3) In view of the retirement of
Commissioners Gorospe and Guiani before the date of the
promulgation of the assailed resolution on March 2, 2000, should said
resolution be deemed null and void for being violative of Article IX-A,
Section 7 of the 1987 Constitution?
We shall first discuss the third issue. Petitioner claims that March 2,
2000 Resolution of the COMELEC is void because Commissioners
Manolo Gorospe and Japal Guiani have already retired on the date of its
promulgation, even if they had participated earlier in the deliberations
of the case and signed the resolution dated August 24, 1999. Petitioner
submits that this defect invalidated the entire decision of the
Commission and that accordingly, a new vote should be taken to settle
the matter.
In Jamil vs. Commission on Elections,8 we held that a decision becomes
binding only after its promulgation. If at the time it is promulgated, a
judge or member of the collegiate court who had earlier signed or
registered his vote has vacated office, his vote on the decision must
automatically be withdrawn or cancelled. Accordingly, the votes of
Commissioners Gorospe and Guiani should merely be considered as
withdrawn for the reason that their retirement preceded the
resolutions promulgation. The effect of the withdrawal of their votes
would be as if they had not signed the resolution at all and only the
votes of the remaining commissioners would be properly considered for
the purpose of deciding the controversy.
However, unless the withdrawal of the votes would materially affect
the result insofar as votes for or against a party is concerned, we find
no reason for declaring the decision a nullity. In the present case, with
the cancellation of the votes of retired Commissioners Gorospe and
Guiani, the remaining votes among the four incumbent commissioners
at the time of the resolutions promulgation would still be 3 to 1 in
favor of respondent. Noteworthy, these remaining Commissioners still
constituted a quorum. In our view, the defect cited by petitioner does
not affect the substance or validity of respondent Commissions
disposition of the controversy. The nullification of the challenged
resolution, in our view, would merely prolong the proceedings
unnecessarily.
Now, regarding the first issue raised by petitioner. Did respondent
Bernal effectively abandon his pending motions before the
COMELEC en banc by the filing of Spl. Civil Action No. 98-141?
Petitioners contention that Bernal did appears to us untenable.
As a general rule, the filing of an election protest or a petition for quo
warranto precludes the subsequent filing of a pre-proclamation
controversy or amounts to the abandonment of one earlier filed, thus
depriving the COMELEC of the authority to inquire into and pass upon
the title of the protestee or the validity of his proclamation. The reason
for this rule is that once the competent tribunal has acquired
jurisdiction of an election protest or a petition for quo warranto, all
questions relative thereto will have to be decided in the case itself and
not in another proceeding, so as to prevent confusion and conflict of
authority.9
Nevertheless, the general rule is not absolute. It admits of certain
exceptions, as where: (a) the board of canvassers was improperly
constituted; (b) quo warranto was not the proper remedy; (c) what was
filed was not really a petition for quo warranto or an election protest
but a petition to annul a proclamation; (d) the filing of a quo
warranto petition or an election protest was expressly made without
prejudice to the pre-proclamation controversy or was made ad
cautelam; and (e) the proclamation was null and void.10
An examination of the petition filed primarily by Vice-Mayor Betita with
the Regional Trial Court of Iloilo City reveals that it is neither a quo
warranto petition under the Omnibus Election Code nor an election
protest. In Samad vs. COMELEC11, we explained that a petition for quo
warranto under the Omnibus Election Code raises in issue the
disloyalty or ineligibility of the winning candidate. It is a proceeding to
unseat the respondent from office but not necessarily to install the
petitioner in his place. An election protest is a contest between the
defeated and winning candidates on the ground of frauds or
irregularities in the casting and counting of the ballots, or in the
preparation of the returns. It raises the question of who actually
obtained the plurality of the legal votes and therefore is entitled to
hold the office.
The allegations contained in Betitas petition before the regular court
do not present any proper issue for either an election protest or a quo
warranto case under the Omnibus Election Code. Spl. Civil Action NO.
98-141 appears to be in the nature of an action for usurpation of public
office brought by Betita to assert his right to the position of Mayor
pursuant to the rules on succession of local government officials
contained in the Local Government Code.12 Although said petition is
also denominated as a quo warranto petition under Rule 66 of the
Rules of Court, it is different in nature from the quo warranto provided
for in the Omnibus Election Code where the only issue proper for
determination is either disloyalty or ineligibility of respondent therein.
Neither can it be considered as an election protest since what was put
forth as an issue in said petition was petitioners alleged unlawful
assumption of the office of Mayor by virtue of his alleged illegal
proclamation as the winning candidate in the election.
A closer look at the specific allegations in the petition disclose that Spl.
Civil Action No. 98-141 is actually an action for the annulment of
petitioners proclamation on the ground of illegality and prematurity.
This conclusion is consistent with the rule that the nature of the action
is determined by the averments in the complaint or petition 13and not
the title or caption thereof. The material stipulations of the petition
substantially state:
13. That when the Board of Canvassers
convened in the afternoon and despite
the submission of the copy of the order
certifying the Motion for Reconsideration
to the COMELEC En Banc and in violation
of the Comelec Rules and Procedure and
due to the threat received by the Board,
Mr. Dalen, the Chairman of the Board
and Mr. Serafin Provido, Jr. signed the
Certificate of Proclamation proclaiming
respondent as winner of the elections
for Mayor. Mr. Deony Cabaobao did not
signed (sic) the said Certificate of
Proclamation as he dissented to (sic) the
decision to proclaim respondent;
14. The proclamation, therefore, of
respondent is illegal and null and void
from the very beginning for it was done
in violation of law and under duress. The
affidavit of Mr. Serafin Provido, Jr. a
member of the Board of Canvassers
showing duress is hereto attached as
Annex "C";
15. On account of the illegal
proclamation of the respondent said
proclamation does not vest any right or
authority for him to sit as Mayor of the
town of Carles thus when he sits as such
Mayor he usurps, intrudes into, and
unlawfully holds and exercise(s) a public
office without authority;
16. The authority to act as mayor for
and in the absence of the duly
proclaimed mayor is vested on
petitioner Betita pursuant to law;
17. That the continued unlawful exercise
by the respondent of the position of
mayor of the town of Carles will cause
great and irreparable damage to the
petitioners, particularly petitioner
Betita, who pursuant to law is entitled to
act as Mayor of the town of Carles and
the people of Carles who pays his
salaries unless he be restrained or
enjoined from siting (sic) as such Mayor;
xxx 14
Thus, respondent Commission did not err, much less abuse its
discretion, when it refused to consider as abandoned Bernals motion
for reconsideration and urgent motion to declare petitioners
proclamation as void ab initio. Note that under the allegations cited
above, the determination of Betitas right would ultimately hinge on
the validity of petitioners proclamation in the first place. To repeat, the
"quo warranto" petition brought by Vice-Mayor Betita is a petition to
annul petitioners proclamation over which COMELEC exercises original
exclusive jurisdiction. Consequently, it could not be deemed as a
proper remedy in favor of respondent Bernal, Jr. even if his name was
included in the title of said petition.
We now consider whether the MBCs proclamation of petitioner
Dumayas as the winning candidate in the 1998 mayoralty election is
null and void. For where a proclamation is null and void, it is no
proclamation at all such that the proclaimed candidates assumption of
office cannot deprive the COMELEC of the power to declare such nullity
and annul the proclamation.15
Although petitioners proclamation was undertaken pursuant to the
resolution of the COMELECs Second Division, it appears plain to us
that the latter grievously erred in ordering the exclusion of the
contested returns from Precincts 61A, 62A and 63A/64A (clustered). On
this score, the Comelec en banc correctly reversed the Second Division
by holding that petitioner Dumayas failed to justify the exclusion of
said returns on the ground of duress, intimidation, threat or coercion.
We note that the only evidence submitted by petitioner to prove said
irregularities were self-serving affidavits executed by his watchers and
supporters. Aside from the fact that these allegations were countered
by opposing affidavits made by the members of the Boards of Election
Inspectors who are presumed to have regularly performed their
duties16 and who categorically denied the allegations, the election
returns were also observed to be genuine, clean, signed and/or
thumbmarked by the proper officials and watchers.17
Well-entrenched is the rule that findings of fact by the COMELEC, or
any other administrative agency exercising particular expertise in its
field of endeavor, are binding on this Court. 18 In a pre-proclamation
controversy, the board of canvassers and the COMELEC are not
required to look beyond or behind the election returns which are on
their face regular and authentic. Where a party seeks to raise issues
the resolution of which would necessitate the COMELEC to pierce the
veil of election returns which are prima facie regular, the proper
remedy is a regular election protest, not a pre-proclamation
controversy.19
In the present case, petitioner barely alleged that the preparation of
said returns was attended by threats, duress, intimidation or coercion
without offering any proof, other than the affidavits mentioned above,
that these had affected the regularity or genuineness of the contested
returns. Absent any evidence appearing on the face of the returns that
they are indeed spurious, manufactured or tampered with, the election
irregularities cited by petitioner would require the reception of
evidence aliunde which cannot be done in a pre-proclamation
controversy such as the one initiated by petitioner. Returns can not be
excluded on mere allegation that the returns are manufactured or
fictitious when the returns, on their face, appear regular and without
any physical signs of tampering, alteration or other similar vice. If
there had been sham voting or minimal voting which was made to
appear as normal through falsification of the election returns, such
grounds are properly cognizable in an election protest and not in a pre-
proclamation controversy.20
In sum, we hold that the COMELEC en banc did not commit grave
abuse of discretion in reversing the ruling of its Second Division. The
appeal brought by petitioner from the order of inclusion issued by the
MBC should have been dismissed by that Division right away, since the
grounds for exclusion relied upon by petitioner are not proper in a pre-
proclamation case, which is summary in nature.
WHEREFORE, the instant petition is DISMISSED for lack of merit,
public respondent having committed no grave abuse of discretion. Its
challenged resolution dated August 24, 1999 is AFFIRMED. Costs
against petitioner.1wphi1.nt
SO ORDERED.
G.R. Nos. 186007 & 186016 July 27, 2009
SALVADOR DIVINAGRACIA, JR., Petitioner,
vs.
COMMISSION ON ELECTIONS and ALEX A.
CENTENA, Respondents.
DECISION
CARPIO MORALES, J.:
Salvador Divinagracia, Jr. (petitioner) and Alex Centena (private
respondent) vied for the vice-mayoralty race in Calinog, Iloilo during
the May 14, 2007 Elections wherein petitioner garnered 8,141 votes or
13 votes more than the 8,128 votes received by respondent.
After the proclamation of petitioner as the duly elected vice-mayor on
May 16, 2007, private respondent filed with the Regional Trial Court
(RTC) of Iloilo City an election protest, docketed as Election Case No.
07-2007, claiming that irregularities attended the appreciation of
marked ballots in seven precints.1
By Decision of December 5, 2007, Branch 24 of the RTC dismissed
private respondents protest. It ruled that private respondent failed to
overcome the disputable presumption of regularity in the conduct of
elections2 since no challenge of votes or objection to the appreciation
of ballots was raised before the Board of Elections Inspectors or the
Municipal Board of Canvassers.
Private respondent and petitioner filed their respective notices of
appeal before the trial court, upon payment of the P1,000 appeal fee
under Section 9, Rule 14 of the "Rules of Procedure in Election Contests
before the Courts involving Elective Municipal and Barangay Officials"
(A.M. No. 07-4-15-SC) which took effect on May 15, 2007.
The Comelec, by Order of March 12, 2008, consolidated the appeals of
the parties and directed them to file their respective briefs.
Meanwhile, the duly elected mayor of Calinog, Teodoro Lao, died on
March 18, 2008. On even date, petitioner assumed office as mayor.
On July 17, 2008, the Comelec Second Division issued its first assailed
resolution declaring private respondent as the duly elected vice mayor.
Thus it disposed:
WHEREFORE, this Commission GRANTS the Appeal in EAC No. A-10-
2008, and hereby DECLARES protestant-appellant Alex Centena as the
duly elected Vice-Mayor of the Municipality of Calinog, Iloilo, with a
total of 8,130 votes against protestee-appellee Salvador Divinagracia,
Jr.s total of 8,122 votes, or a winning margin of eight (8) votes.
The Decision of the Regional Trial Court of Iloilo City, Branch 24, dated
5 December 2007, is hereby REVERSED and SET ASIDE.
The Appeal in EAC No. A-11-2008 is hereby DENIED for lack of merit.
SO ORDERED.3
In reversing the trial courts Decision, the Comelec Second Division
found the same to be fatally defective in form for non-observance of
the prescribed rules4 as it failed to indicate the specific markings in the
contested ballots and merely discussed in a general manner the
reasons why those ballots should not be declared as "marked." 5The
Comelec re-appreciated those ballots and ascertained that respondent
was the true winner in the elections for the vice-mayoralty post.
Petitioner filed a Verified Motion for Reconsideration, alleging, inter
alia, that both parties failed to pay the appeal fee/s in the amount
of P3,200 under Section 3, Rule 40 of the Comelec Rules of
Procedure,6 and following Section 9, Rule 22 of the same Rules, an
appeal may be dismissed motu proprio or upon motion on the ground
of failure of the appellant to pay the correct appeal fee.
On January 26, 2009, the Comelec En Banc issued its second assailed
Resolution affirming7 the pronouncements of the Second Division. It
held that petitioner was barred under the doctrine of estoppel by
laches when he failed to raise the question of jurisdiction when he filed
his Appellants and Appellees Briefs.
Hence, the present petition for certiorari and prohibition which asserts
that payment of the appeal fee is a mandatory and jurisdictional
requirement and that the question of jurisdiction may be raised at any
stage of the proceedings. It cites earlier rulings of the Comelec
dismissing analogous cases involving the same issue of non-payment
of appeal fee which, so he contends, contradict the assailed
Resolutions.
In support of the issue of whether the Comelec gravely abused its
discretion amounting to lack or excess of jurisdiction in issuing the
assailed Resolutions, petitioner submits the following arguments:
7.1. THE PUBLIC RESPONDENT COMELEC DID NOT ACQUIRE
JURISDICTION OVER THE APPEAL DOCKETED AS EAC NO. A-
10-2008 FOR FAILURE OF THE APPELLANT TO PAY THE FILING
FEE/APPEAL FEE.
7.2. PAYMENT OF FILING FEE/APPEAL FEE IS MANDATORY
AND JURISDICTIONAL, HENCE, CAN BE RAISED AT ANY STAGE
OF THE PROCEEDINGS PENDING WITH THE SAME
COURT/COMELEC.
7.3. THE FLIP-FLOPPING RULINGS OF THE PUBLIC
RESPONDENT COMELEC SECOND DIVISION IS IN
DEROGATION OF THE RULES AND THE PROPER
ADMINISTRATION OF JUSTICE.
7.4. IN ASSAILING THE RULING TO AFFIRM THE SECOND
DIVISION RESOLUTION, THE PETITIONER IS NOT BARRED BY
ESTOPPEL BECAUSE HIS PARTICIPATION IN THE
PROCEEDINGS WAS DIRECTED BY THE PUBLIC RESPONDENT
COMELEC.
7.5. THERE APPEARS TO BE AN INCONSISTENCY IN THE
APPLICATION OF THE RULES BETWEEN THE FIRST AND
SECOND DIVISION OF THE PUBLIC RESPONDENT COMELEC.8
Private respondent filed his Comment of March 17, 2009, while
petitioner submitted a Reply of May 11, 2009.
Records show that private respondent took his oath of office as vice-
mayor and, forthwith successively, as mayor on March 6,
2009,9 pursuant to the Comelec Order of March 3, 2009 directing the
issuance of a writ of execution.10
The petition lacks merit.
The jurisprudence on payment of filing fees in election cases
metamorphosed in the 1997 case of Loyola v. Comelec.11 In Loyola, the
Court did not dismiss the election protest for inadequate payment of
filing fees arising from the incorrect assessment by the clerk of court,
after finding substantial compliance with the filing fee requirement in
election cases. The Court noted the clerks ignorance or confusion as to
which between Section 5(a)(11),12 Rule 141 of the Rules of Court and
Section 9, Rule 35 of the Comelec Rules of Procedure would apply in
assessing the filing fee, considering that the particular election protest
fell within the exclusive original jurisdiction of the Regional Trial Court.
After clarifying the matter, the Court in Loyola warned that the cases
cited therein would no longer provide any excuse for such shortcoming
and would now bar any claim of good faith, excusable negligence or
mistake in any failure to pay the full amount of filing fees in election
cases which may be filed after the promulgation of the decision in said
case.
Shortly thereafter, in the similar case of Miranda v. Castillo13 which
involved two election protests filed on May 24, 1995, the Court did not
yet heed the Loyola warning and instead held that an incomplete
payment of filing fee is correctible by the payment of the deficiency.
The Court, nonetheless, reiterated the caveat in Loyola that it would no
longer tolerate any mistake in the payment of the full amount of filing
fees for election cases filed after the promulgation of
the Loyola decision on March 25, 1997.lavvphil
The force of the Loyola doctrine was strongly felt in the 2000 case
of Soller v. Comelec,14 where the Court ordered the dismissal of the
therein election protest for, inter alia, incomplete payment of filing fee,
after finding a P268 deficiency in the fees paid, similar to what
occurred in Loyola and Miranda. The Court once again clarified that the
then P300 filing fee prescribed by the Comelec under Section 9, Rule
35 of the Comelec Rules of Procedure was the correct filing fee that
must be paid.
The ripples of the caveat in Loyola continued in Villota v. Commission
on Elections15 and Zamoras v. Commission on Elections, 16 both of which
involved, this time, the matter of full payment of the appeal fee in
election contestswithin the five-day reglementary period.
The petitioner in Villota timely filed a notice of appeal and
simultaneously paid to the trial courts cashier the appeal fees
totaling P170. Four days beyond the reglementary period, the therein
petitioner realized his mistake and again paid to the Cash Division of
the Comelec the appeal fees in the sum of P520, pursuant to Sections
3 and 4, Rule 40 of the Comelec Rules of Procedure, which Sections fix
the amount of the fees and the place of payment thereof. Maintaining
that errors in the matter of non-payment or incomplete payment of
filing fees in election cases are no longer excusable, the Court
sustained the Comelecs dismissal of the appeal.
The Court was more emphatic in Zamoras in reiterating
the Loyola doctrine. In that case, the petitioner failed to fully pay the
appeal fees under Comelec Resolution No. 02-0130 (September 18,
2002) which amended Section 3, Rule 40 of the Comelec Rules of
Procedure by increasing the fees to P3,200. There the Court ruled:
x x x A case is not deemed duly registered and docketed until full
payment of the filing fee. Otherwise stated, the date of the payment of
the filing fee is deemed the actual date of the filing of the notice of
appeal. x x x
xxxx
x x x The payment of the filing fee is a jurisdictional requirement and
non-compliance is a valid basis for the dismissal of the case. The
subsequent full payment of the filing fee after the lapse of the
reglementary period does not cure the jurisdictional defect. x x
x17 (Italics in the original, underscoring supplied)
Such has been the jurisprudential landscape governing the matter of
payment of filing fees and appeal fees in election cases.
On May 15, 2007, the Court, by A.M. No. 07-4-15-SC, introduced the
"Rules of Procedure in Election Contests before the Courts involving
Elective Municipal and Barangay Officials," which superseded Rules 35
and 36 of the Comelec Rules of Procedure governing elections protests
and quo warranto cases before the trial courts. 18 Not only was the
amount of the filing fee increased from P300 to P3,000 for each
interest;19 the amount of filing fee was determined by the Court, not by
the Comelec, which was, to recall, the cause of confusion
in Loyola, Miranda and Soller.
Another major change introduced by A.M. No. 07-4-15-SC is the
imposition of an appeal fee under Section 9 of Rule 14
thereof, separate and distinct from, but payable within the same
period as, the appeal fee imposed by the Comelec under Sections 3
and 4, Rule 40 of the Comelec Rules of Procedure, as amended by
Comelec Resolution No. 02-0130. Contrary to respondents contention,
the Comelec-prescribed appeal fee was not superseded by A.M. No. 07-
4-15-SC.
The requirement of these two appeal fees by two different jurisdictions
had caused confusion in the implementation by the Comelec of its
procedural rules on payment of appeal fees for the perfection of
appeals, prompting the Comelec to issue Resolution No. 8486 (July 15,
2008) clarifying as follows:
1. That if the appellant had already paid the amount of
P1,000.00 before the Regional Trial Court, Metropolitan Trial Court,
Municipal Trial Court or lower courts within the five-day period,
pursuant to Section 9, Rule 14 of the Rules of Procedure in Election
Contests Before the Courts Involving Elective Municipal and Barangay
Officials (Supreme Court Administrative Order No. 07-4-15) and
his Appeal was given due course by the Court, said appellant is
required to pay the Comelec appeal fee of P3,200.00 at the
Commission's Cash Division through the Electoral Contests
Adjudication Department (ECAD) or by postal money order
payable to the Commission on Elections through ECAD, within a
period of fifteen days (15) from the time of the filing of the
Notice of Appeal with the lower court. If no payment is made
within the prescribed period, the appeal shall be
dismissed pursuant to Section 9(a) of Rule 22 of the COMELEC Rules
of Procedure, which provides:
Sec. 9. Grounds for Dismissal of Appeal. The appeal may be dismissed
upon motion of either party or at the instance of the Commission on
any of the following grounds:
(a) Failure of the appellant to pay the correct appeal fee; x x x
2. That if the appellant failed to pay the P1,000.00-appeal fee with the
lower court within the five (5) day period as prescribed by the Supreme
Court New Rules of Procedure but the case was nonetheless elevated
to the Commission, the appeal shall be dismissed outright by the
Commission, in accordance with the aforestated Section 9(a) of Rule 22
of the Comelec Rules of Procedure. (Emphasis, italics and underscoring
supplied)
That Comelec Resolution No. 8486 took effect on July 24, 2008 20 or
after a party had filed a notice of appeal, as in the case of petitioner,
does not exempt it from paying the Comelec-prescribed appeal fees.
The Comelec merely clarified the existing rules on the payment of
such appeal fees, and allowed the payment thereof within 15 days
from filing the notice of appeal.
In the recent case of Aguilar v. Comelec,21 the Court harmonized the
rules with the following ratiocination:
The foregoing resolution is consistent with A.M. No. 07-4-15-SC and the
COMELEC Rules of Procedure, as amended. The appeal to the COMELEC
of the trial courts decision in election contests involving municipal and
barangay officials is perfected upon the filing of the notice of appeal
and the payment of the P1,000.00 appeal fee to the court that
rendered the decision within the five-day reglementary period. The
non-payment or the insufficient payment of the additional
appeal fee of P3,200.00 to the COMELEC Cash Division, in
accordance with Rule 40, Section 3 of the COMELEC Rules of Procedure,
as amended, does not affect the perfection of the appeal and
does not result in outright or ipso facto dismissal of the
appeal. Following, Rule 22, Section 9(a) of the COMELEC Rules, the
appeal may be dismissed. And pursuant to Rule 40, Section 18 of the
same rules, if the fees are not paid, the COMELEC may refuse to take
action thereon until they are paid and may dismiss the action or the
proceeding. In such a situation, the COMELEC is merely given the
discretion to dismiss the appeal or not. (Italics in the original; emphasis
and underscoring supplied)
In Aguilar, the Court recognized the Comelecs discretion to allow or
dismiss a "perfected" appeal that lacks payment of the Comelec-
prescribed appeal fee. The Court stated that it was more in keeping
with fairness and prudence to allow the appeal which was, similar to
the present case, perfected months before the issuance of Comelec
Resolution No. 8486.
Aguilar has not, however, diluted the force of Comelec Resolution No.
8486 on the matter of compliance with the Comelec-required appeal
fees. To reiterate, Resolution No. 8486 merely clarified the rules on
Comelec appeal fees which have been existing as early as 1993, the
amount of which was last fixed in 2002. The Comelec even went one
step backward and extended the period of payment to 15 days from
the filing of the notice of appeal.
Considering that a year has elapsed after the issuance on July 15, 2008
of Comelec Resolution No. 8486, and to further affirm the discretion
granted to the Comelec which it precisely articulated through the
specific guidelines contained in said Resolution, the Court now
declares, for the guidance of the Bench and Bar, that for notices of
appeal filed after the promulgation of this decision, errors in the matter
of non-payment or incomplete payment of the two appeal fees in
election cases are no longer excusable.
On the Comelecs application of the doctrine of estoppel by laches,
records show that petitioner raised the issue of lack of jurisdiction for
his and private respondents non-payment of the appeal fee only after
the Comelec appreciated the contested ballots and ruled in favor of
respondent, an issue which could have been raised with reasonable
diligence at the earliest opportunity. The Court finds the Comelec
resolution well-taken.
That petitioners filing of the appellees brief was an invocation of the
Comelecs jurisdiction and an indication of his active participation
cannot be refuted on the mere asseveration that he was only
complying with the Comelecs directive to file the same. The
submission of briefs was ordered precisely because the Comelec could
not anticipate the claims and defenses that would be raised by the
parties. Moreover, in his Verified Motion for Reconsideration, petitioner
once again pleaded to the Comelec to exercise its jurisdiction by
dismissing private respondents appeal on the merits.22
The doctrine of estoppel by laches is not new in election cases. It has
been applied in at least two cases involving the payment of filing fees.
In Navarosa v. Comelec,23 the therein petitioner questioned the trial
courts jurisdiction over the election protest in the subsequent petition
for certiorari before the Comelec involving the ancillary issue of
execution pending appeal. The petitioner having raised for the first
time the therein private respondents incomplete payment of the filing
fee in her Memorandum submitted to the Comelec, the Court applied
the doctrine of estoppel in this wise:
In an earlier ruling, the Court held that an election protest is not
dismissible if the protestant, relying on the trial courts assessment,
pays only a portion of the COMELEC filing fee. However, in Miranda v.
Castillo, the Court, reiterating Loyola v. Commission on Elections,
held that it would no longer tolerate "any mistake in the payment of
the full amount of filing fees for election cases filed after the
promulgation of the Loyola decision on March 25,
1997." Nevertheless, our rulings in Miranda and Loyola are
inapplicable to the present case.
At no time did petitioner Navarosa ever raise the issue of respondent
Estos incomplete payment of the COMELEC filing fee during the full-
blown trial of the election protest. Petitioner Navarosa actively
participated in the proceedings below by filing her Answer, presenting
her evidence, and later, seeking a stay of execution by filing a
supersedeas bond. Not only this, she even invoked the trial courts
jurisdiction by filing a counter-protest against respondent Esto in which
she must have prayed for affirmative reliefs.
Petitioner Navarosa raised the issue of incomplete payment of the
COMELEC filing fee only in her memorandum to respondent Estos
petition before the COMELEC Second Division. Petitioner Navarosas
conduct estops her from claiming, at such late stage, that the trial
court did not after all acquire jurisdiction over the election
protest. Although a party cannot waive jurisdictional issues and may
raise them at any stage of the proceedings, estoppel may bar a party
from raising such issues. In Pantranco North Express v. Court of
Appeals, this Court applied the doctrine of estoppel against a party
who also belatedly raised the issue of insufficient payment of filing fees
to question the courts exercise of jurisdiction over the case. We held:
The petitioner raised the issue regarding jurisdiction for the first time in
its Brief filed with public respondent [Court of Appeals] x x x After
vigorously participating in all stages of the case before the trial court
and even invoking the trial courts authority in order to ask for
affirmative relief, the petitioner is effectively barred by estoppel from
challenging the trial courts jurisdiction.
Indeed, in Miranda and Loyola, as in every other case where we
sustained the dismissal of the election protest for lack or incomplete
payment of the COMELEC filing fee, the protestee timely raised the
non-payment in a motion to dismiss. Before any revision of the
contested ballots, the protestee filed a petition
for certiorari questioning the trial courts jurisdiction before the
COMELEC and eventually before this Court. In contrast, in the instant
case, petitioner Navarosa did not raise the incomplete payment of the
COMELEC filing fee in a motion to dismiss. Consequently, the trial court
proceeded with the revision of the contested ballots and subsequently
rendered judgment on the election protest. Petitioner Navarosa raised
for the first time the incomplete payment of the COMELEC filing fee in
her memorandum before the COMELEC Second Division.
Thus, estoppel has set in precluding petitioner Navarosa from
questioning the incomplete payment of the COMELEC filing fee, and in
effect assailing the exercise of jurisdiction by the trial court over the
election protest. The law vests in the trial court jurisdiction over
election protests although the exercise of such jurisdiction requires the
payment of docket and filing fees by the party invoking the trial courts
jurisdiction. Estoppel now prevents petitioner Navarosa from
questioning the trial courts exercise of such jurisdiction, which the law
and not any act of the parties has conferred on the trial court. At this
stage, the remedy for respondent Estos incomplete payment is for him
to pay the P200 deficiency in the COMELEC filing fee. It is highly unjust
to the electorate of Libacao, Aklan, after the trial court has completed
revision of the contested ballots, to dismiss the election protest and
forever foreclose the determination of the true winner of the election
for a mere P200 deficiency in the COMELEC filing fee. x x x24 (Italics
and emphasis in the original; underscoring supplied)
In Villagracia v. Commission on Elections,25 the Court dismissed the
petition after finding that the therein petitioner was estopped from
raising the jurisdictional issue for the first time on appeal. The Court
ratiocinated:
Petitioner contends that had public respondent followed the doctrine
in Soller v. COMELEC, it would have sustained the ruling of the First
Division that the trial court lacked jurisdiction to hear the election
protest due to private respondents failure to pay the correct filing
fees.
We disagree. The Soller case is not on all fours with the case at bar.
In Soller, petitioner therein filed with the trial court a motion to dismiss
private respondents protest on the ground of, among others, lack of
jurisdiction. In the case at bar, petitioner actively participated in the
proceedings and voluntarily submitted to the jurisdiction of the trial
court. It was only after the trial court issued its decision adverse to
petitioner that he raised the issue of jurisdiction for the first time on
appeal with the COMELECs First Division.
While it is true that a court acquires jurisdiction over a case upon
complete payment of the prescribed filing fee, the rule admits of
exceptions, as when a party never raised the issue of jurisdiction in the
trial court. As we stated in Tijam v. Sibonghanoy, et al., viz.:
xxx [I]t is too late for the loser to question the jurisdiction or power of
the court. xxx [I]t is not right for a party who has affirmed and invoked
the jurisdiction of a court in a particular matter to secure an affirmative
relief, to afterwards deny that same jurisdiction to escape a penalty.
It was therefore error on the part of the COMELECs First Division to
indiscriminately apply Soller to the case at bar. As correctly pointed out
by public respondent in its questioned Resolution, viz.:
x x x. Villagracia never assailed the proceedings of the trial court for
lack of jurisdiction during the proceedings therein. Instead, he filed an
Answer to the Protest on 2 August 2002 and then actively participated
during the hearings and revision of ballots and subsequently filed his
Formal Offer of Exhibits. The issue on the filing fees was never raised
until the Decision adverse to his interest was promulgated by the trial
court and only on [a]ppeal to the COMELEC. Necessarily, we apply the
case of Alday vs. FGU Insurance Corporation where the Supreme Court
instructed that "although the lack of jurisdiction of a court may be
raised at any stage of the action, a party may be estopped from raising
such questions if he has actively taken part in the very proceedings
which he questions, belatedly objecting to the courts jurisdiction in the
event that the judgment or order subsequently rendered is adverse to
him." Villagracia is therefore estopped from questioning the jurisdiction
of the trial court only on [a]ppeal.26 (Underscoring supplied)
To allow petitioner to espouse his stale defense at such late stage of
the proceedings would run afoul of the basic tenets of fairness. It is of
no moment that petitioner raised the matter in a motion for
reconsideration in the same appellate proceedings in the Comelec, and
not before a higher court. It bears noting that unlike appellate
proceedings before the Comelec, a motion for reconsideration of a trial
courts decision in an election protest is a prohibited pleading, 27 which
explains why stale claims of non-payment of filing fees have
always been raised belatedly before the appellate tribunal. In appellate
proceedings before the Comelec, the stage to belatedly raise a stale
claim of non-payment of appeal fees to subvert an adverse
decision is a motion for reconsideration. The Commission thus did not
gravely abuse its discretion when it did not countenance the glaring
inequity presented by such situation.
More. Petitioner, guilty as he is of the same act that he assails, stands
on equal footing with private respondent, for he himself admittedly did
not pay the appeal fee, yet the Comelec similarly adjudicated his
appeal on the merits, the resolution of which he glaringly does not
assail in the present petition. He who comes to court must come with
clean hands.
Election cases cannot be treated in a similar manner as criminal cases
where, upon appeal from a conviction by the trial court, the whole case
is thrown open for review and the appellate court can resolve issues
which are not even set forth in the pleadings. 28 Petitioner having set his
eyes only on the issue of appeal fees, the present petition must be
resolved, as it is hereby resolved, on the basis of such singular ground
which, as heretofore discussed, failed to convince the Court.
En passant, appreciation of the contested ballots and election
documents involves a question of fact best left to the determination of
the Comelec, a specialized agency tasked with the supervision of
elections all over the country. In the absence of grave abuse of
discretion or any jurisdictional infirmity or error of law, the factual
findings, conclusions, rulings and decisions rendered by the Comelec
on matters falling within its competence shall not be interfered with by
this Court.29
By the assailed Resolutions, the Comelec declared as "marked" those
ballots containing the words "Ruby," "Ruby Lizardo" and its variants
after finding a discernible pattern in the way these words were written
on the ballots, leading to the conclusion that they were used to identify
the voter. The Comelec found material the following evidence aliunde:
the name "Ruby Lizardo" referred to a community leader and political
supporter of petitioner; said name and its variants were written on
several ballots in different precints; and the fact that Ruby Lizardo
acted as an assistor in the elections cannot hold water since an
assistor cannot assist in the preparation of the ballots for more than
three times.30 The Comelec did not invalidate the other ballots for
absence of evidence aliunde to prove that the markings therein were
used for the purpose of identifying the voter. It ruled that circles,
crosses and lines (e.g., "X" marks) placed on spaces on which the voter
has not voted are considered signs to indicate his desistance from
voting and should not invalidate the ballot.
Petitioner failed to establish, or even allege, the presence of grave
abuse of discretion with respect to the substance of the assailed
Resolutions. Petitioners silent stance on this point is an implied waiver
of whatever infirmities or errors of law against the substantive aspect
of the assailed Resolutions, for the Court abhors a piecemeal approach
in the presentation of arguments and the adjudication thereof.
WHEREFORE, the petition is DISMISSED for lack of merit. The July 17,
2008 Resolution and the January 26, 2009 Resolution of the
Commission on Elections are AFFIRMED.
SO ORDERED
G.R. No. 155618 March 26, 2003
EDGAR Y. SANTOS, petitioner,
vs.
COMMISSION ON ELECTIONS (FIRST DIVISION) and PEDRO Q.
PANULAYA, respondents.
YNARES-SANTIAGO, J.:
Petitioner Edgar Y. Santos and respondent Pedro Q. Panulaya were both
candidates for Mayor of the Municipality of Balingoan, Misamis Oriental
in the May 14, 2001 elections. On May 16, 2001, after the votes were
counted and canvassed, the Municipal Board of Canvassers proclaimed
respondent Panulaya as the duly elected Mayor.
Petitioner filed an election protest before the Regional Trial Court of
Misamis Oriental, Branch 26, which was docketed as SPL Election
Protest No. 1-M(2001). After trial and revision of the ballots, the trial
court found that petitioner garnered 2,181 votes while respondent
received only 2,105. Hence, on April 2, 2002, it rendered judgment as
follows:
WHEREFORE, judgment is hereby rendered declaring and
proclaiming protestant/petitioner Edgar Y. Santos as the duly
elected Municipal Mayor of Balingoan, Misamis Oriental, in
the mayoralty elections held on May 14, 2001 with the
plurality of Seventy Six (76) votes over and above his
protagonist-protestee Pedro Q. Panulaya setting aside as null
and void the proclamation of protestee made by the
Municipal Board of Canvassers on May 16, 2001, ordering to
pay protestant/petitioner the costs and expenses that the
latter incurred in this protest in accordance with Section 259
of the Omnibus Election Code of the Philippines (B.P. 881)
and Section 7 of the COMELEC Resolution 1566, to wit:
xxx xxx xxx.
The Clerk of Court of this Court is hereby directed to furnish
copy of the DECISION to the following: Office of the
Commission on Elections (COMELEC); Office of the
Commission on Audit; Office of the Department of Interior
and Local Government; Office of the Sangguniang
Panlalawigan of Misamis Oriental, in accordance with Section
15 of the COMELEC Resolution 1566.
SO ORDERED.1
Petitioner thereafter filed a motion for execution pending appeal.
Meanwhile, before the trial court could act on petitioners motion,
respondent filed on April 22, 2002 with the Commission on Elections
(COMELEC) a petition for certiorari, docketed as SPR No. 20-2002,
assailing the decision of the trial court. 2 Likewise on April 22, 2002,
respondent appealed the trial courts decision to the COMELEC, where
it was docketed as EAC No. A-12-2002.
The COMELEC, in SPR No. 20-2002, issued a Writ of Preliminary
Injunction, which effectively enjoined the trial court from acting on
petitioners motion for execution pending appeal. Subsequently, on
August 19, 2002, the COMELEC dismissed SPR No. 20-2002 after
finding that the trial court did not commit grave abuse of discretion in
rendering the assailed judgment. Moreover, the COMELEC held that the
remedy from the decision of the court a quo was to file a notice of
appeal, which respondent precisely did in EAC No. A-12-2002. Hence, it
directed the trial court to dispose of all pending incidents in SPL
Election Protest No. 1-M(2001) with dispatch, to wit:
WHEREFORE, premises considered, the Commission (First
Division) RESOLVED as it hereby RESOLVES to DISMISS the
instant petition for lack of merit.
ACCORDINGLY, the Writ of Preliminary Injunction issued on
16 May 2002, as well as the Order issued on 27 April 2002 by
the Commission (First Division), are hereby set aside and
lifted, respectively. The Court a quo is hereby directed
to dispose with immediate dispatch all pending incidents in
SPL Election Case No. 1-M (2001) entitled "Edgar Y. Santos,
Petitioner/Protestant versus Pedro Q. Panulaya,
Respondent/Protestee."
No pronouncement as to cost.
SO ORDERED. (italics ours)3
Thus, on August 20, 2002, the trial court issued an Order as follows:
WHEREFORE, premises considered, this Court hereby
upholds and approves the Motion for Execution Pending
Appeal. Further, finding good reasons therefor, the Court
hereby directs and orders the immediate execution of the
Decision promulgated on April 18, 2002, and as prayed for
install protestant/petitioner EDGAR Y. SANTOS as the duly
elected Mayor of Balingoan, Misamis Oriental, to take his
oath of office and assume the functions and duties of Mayor
 after he shall have filed a bond of One Hundred Thousand
Pesos (P100,000.00).
SO ORDERED.4
After petitioner posted the required bond, the trial court issued the Writ
of Execution,5 thereby installing petitioner as Municipal Mayor of
Balingoan, Misamis Oriental. Accordingly, petitioner took his oath of
office and thereafter assumed the duties and functions of his office.
On August 21, 2002, respondent filed with the COMELEC a motion for
reconsideration of the dismissal of his petition in SPR No. 20-
2002.6 After five days, or on August 26, 2002, he filed a supplemental
petition in SPR No. 20-2002,7 wherein he prayed:
WHEREFORE, foregoing premises considered, petitioner
[herein respondent] respectfully prays unto this Honorable
Commission that the following Orders of the public
respondent:
1. Resolution dated 20 August 2002;
2. Order dated 20 August 2002;
3. Writ of execution dated 21 August 2002;
Be nullified and set aside.
It is further prayed that in the event that the public
respondent has carried out its Order of ousting petitioner
[herein respondent] from his position as Mayor of Balingoan,
Misamis Oriental, that the same be nullified and considered
of no legal effect. It is likewise prayed that a STATUS QUO
ANTE ORDER be issued by the Honorable Commission in
order to reinstate the petitioner to his rightful position as
Mayor of Balingoan, Misamis Oriental.
Other reliefs, just and equitable are likewise prayed for. 8
Barely two days later, on August 28, 2002, and while his motion for
reconsideration and supplemental petition in SPR No. 20-2002 were
pending, respondent filed another petition with the COMELEC,
docketed as SPR No. 37-2002.9 The petition contained the same prayer
as that in the supplemental petition filed in SPR 20-2002, viz:
WHEREFORE, foregoing premises considered, petitioner
[herein respondent] respectfully prays unto this Honorable
Commission that immediately upon the filing of the herein
petition, the following Orders of the public respondent:
1. Resolution dated 20 August 2002;
2. Order dated 20 August 2002;
3. Writ of execution dated 21 August 2002;
Be nullified and set aside.
Pending trial and final judgment, and soon after the
issuance, but during the effectivity of the Temporary
Restraining Order, a Writ of Preliminary Injunction be issued
prohibiting, restraining and/or enjoining the public
respondent from further implementing the highly unjust,
irregular and oppressive Orders above-quoted;
It is further prayed that in the event that the public
respondent has carried out its Order of ousting petitioner
[herein respondent] from his position as Mayor of Balingoan,
Misamis Oriental, that the same be nullified and considered
of no legal effect. It is likewise prayed that a STATUS QUO
ANTE ORDER be issued by the Honorable Commission in
order to reinstate the petitioner to his rightful position as
Mayor of Balingoan, Misamis Oriental.
Upon due notice and hearing, judgment be rendered in favor
of the petitioner [herein respondent] and against the
respondent [herein petitioner] as follows:
1. Making the Writ of Preliminary Prohibitory
Injunction permanent;
2. Declaring Resolution dated 20 August 2002,
Order dated 20 August 2002, and Writ of Execution
dated 21 August 2002; as null and void for being
highly unjust, irregular and oppressively prepared
in utter violation of the Constitutional provisions
on equal protection of the laws and due process,
and for having been rendered with grave abuse of
discretion amounting to lack or excess of
jurisdiction.
3. A writ of Prohibition be issued specifically
commanding public respondent to cease and
desist from further implementing the highly unjust,
irregular and oppressive Orders above-mentioned
are concerned (sic); and
4. Ordering the respondents to pay the costs of
suit.
Such other reliefs and remedies, as are just and equitable in
the premises, are likewise prayed for.10
On September 3, 2002, the COMELEC issued the assailed Order
directing the parties to maintain the status quo ante and enjoining
petitioner from assuming the functions of Mayor. Pertinent portion of
the Order reads:
In the interest of justice and so as not to render moot and
academic the issues raised in the petition, the Commission
(First Division) hereby directs the parties to maintain
the status quo ante, which is the condition prevailing before
the issuance and implementation of the questioned Order of
the court a quo dated August 20, 2002 and the Writ of
Execution issued pursuant thereto dated August 21, 2002, in
SPL. ELECTION CASE NO. 1-M (2001) entitled "EDGAR Y.
SANTOS versus PEDRO Q. PANULAYA." Accordingly, effective
immediately, private respondent EDGAR Y. SANTOS is hereby
ordered to cease and desist from assuming the duties and
functions of the office of Mayor of Balingoan, Misamis
Oriental until further orders from this Commission.11
Petitioner filed a motion for reconsideration of the above Order.
However, the COMELEC First Division did not refer the said motion to
the COMELEC En Banc. Hence, petitioner, citing our ruling in Kho v.
COMELEC,12brought the instant special civil action for certiorari with
this Court.
Meanwhile, on September 9, 2002, petitioner filed an "Omnibus Motion
(1) To Dissolve The Status Quo Order As It Was Based On An Unverified
And Dismissed Petition With Pending Motion For Reconsideration; And
(2) To Refer This Motion To The Commission En Banc Under Section 2,
Rule 3 of the COMELEC Rules of Procedure." 13On October 14, 2002, the
COMELEC issued a Resolution in SPR No. 37-2002, the dispositive
portion of which states:
WHEREFORE, premises considered, the Petition is hereby
GRANTED. Accordingly, the August 20, 2002 Resolution of
the respondent judge granting the Motion for Execution
Pending Appeal as well as his Order also dated August 20,
2002 directing the issuance of the Writ of Execution and his
Writ of Execution dated August 21, 2002 are hereby set
aside. Private Respondent Edgar Y. Santos is enjoined from
assuming the function of mayor of Balingoan, Misamis
Oriental until the final determination of the election appeal
case.
This resolution shall be immediately executory.
The Department of Interior and Local Government (DILG) is
hereby requested to assist in the peaceful and orderly
implementation of this Resolution.
SO ORDERED.14
The petition is impressed with merit.
It is at once apparent from the records, as shown above, that
respondent was guilty of forum-shopping when he instituted SPR No.
37-2002 with the COMELEC. Forum-shopping is an act of a party
against whom an adverse judgment or order has been rendered in one
forum of seeking and possibly getting a favorable opinion in another
forum, other than by appeal or special civil action for certiorari. It may
also be the institution of two or more actions or proceedings grounded
on the same cause on the supposition that one or the other court
would make a favorable disposition. For it to exist, there should be (a)
identity of parties, or at least such parties as would represent the same
interest in both actions; (b) identity of rights asserted and relief prayed
for, the relief being founded on the same facts; and (c) identity of the
two preceding particulars such that any judgment rendered in the
other action will, regardless of which party is successful, amount to res
judicata in the action under consideration.15
In the case at bar, respondent obtained an adverse decision when his
petition in SPR No. 20-2002 was dismissed by the COMELEC. He
thereafter filed a motion for reconsideration and a supplemental
petition, praying for the nullification of the trial courts order for the
execution of its decision pending appeal. Two days after filing the
supplemental petition, and while the same was very much pending
before the COMELEC, he filed a wholly separate petition for certiorari,
docketed as SPR No. 37-2002, wherein he pleaded the same reliefs
prayed for in the supplemental petition. This is plainly evident from the
respective prayers in the supplemental petition and the petition for
certiorari as reproduced hereinabove. In doing so, respondent, before
allowing the COMELEC to fully resolve the incidents in SPR No. 20-
2002, both of which were at his own instance, sought to increase his
chances of securing a favorable decision in another petition. He filed
the second petition on the supposition that the COMELEC might look
with favor upon his reliefs.
Forum-shopping is considered a pernicious evil; it adversely affects the
efficient administration of justice since it clogs the court dockets,
unduly burdens the financial and human resources of the judiciary, and
trifles with and mocks judicial processes.16 The most important factor in
determining the existence of forum shopping is the vexation caused
the courts and parties-litigants by a party who asks different courts to
rule on the same or related causes or grant the same or substantially
the same reliefs.17
Considering that respondent was indubitably guilty of forum-shopping
when he filed SPR No. 37-2002, his petition should have been
dismissed outright by the COMELEC.18 Willful and deliberate forum-
shopping is a ground for summary dismissal of the case, and
constitutes direct contempt of court.19
The petition for certiorari in SPR No. 37-2002 assailed the trial courts
orders for the execution of its decision pending appeal. The grant of
execution pending appeal was well within the discretionary powers of
the trial court. In order to obtain the annulment of said orders in a
petition for certiorari, it must first be proved that the trial court gravely
abused its discretion. He should show not merely a reversible error
committed by the trial court, but a grave abuse of discretion
amounting to lack or excess of jurisdiction. "Grave abuse of discretion"
implies such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction, or where the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility
which must be so patent and gross as to amount to an invasion of
positive duty or to a virtual refusal to perform the duty enjoined or to
act at all in contemplation of law. Mere abuse of discretion is not
enough.20
We find that no grave abuse of discretion was committed by the trial
court. In its order granting execution pending appeal, it held:
It is of judicial notice that for the public official elected last
May 14, 2001 elections only a short period is left. Relative to
this Courts jurisdiction over the instant case, the settled rule
that the mere filing of the notice of appeal does not divest
the trial court of its jurisdiction over the case and to resolve
pending incidents, i.e., motion for execution pending appeal
(Asmala vs. COMELEC, 289 SCRA 745) need not be
overemphasized.21
However, the COMELEC set aside the aforesaid order, saying that
shortness of term alone is not a good reason for execution of a
judgment pending appeal. We disagree.
While it was indeed held that shortness of the remaining term of office
and posting a bond are not good reasons, we clearly stated in Fermo v.
COMELEC22 that:
A valid exercise of the discretion to allow execution pending
appeal requires that it should be based "upon good reasons
to be stated in a special order." The following constitute
"good reasons" and a combination of two or more of
them will suffice to grant execution pending appeal: (1.)
public interest involved or will of the electorate; (2.) the
shortness of the remaining portion of the term of the
contested office; and (3.) the length of time that the election
contest has been pending (italics supplied).23
The decision of the trial court in Election Protest No. 1-M(2001) was
rendered on April 2, 2002, or after almost one year of trial and revision
of the questioned ballots. It found petitioner as the candidate with the
plurality of votes. Respondent appealed the said decision to the
COMELEC. In the meantime, the three-year term of the Office of the
Mayor continued to run. The will of the electorate, as determined by
the trial court in the election protest, had to be respected and given
meaning. The Municipality of Balingoan, Misamis Oriental, needed the
services of a mayor even while the election protest was pending, and it
had to be the candidate judicially determined to have been chosen by
the people.
Between the determination by the trial court of who of the candidates
won the elections and the finding of the Board of Canvassers as to
whom to proclaim, it is the courts decision that should prevail. This
was sufficiently explained in the case of Ramas v. COMELEC24 in this
wise:
All that was required for a valid exercise of the discretion to
allow execution pending appeal was that the immediate
execution should be based "upon good reasons to be stated
in a special order." The rationale why such execution is
allowed in election cases is, as stated in Gahol v.
Riodique,25 "to give as much recognition to the worth of a
trial judges decision as that which is initially ascribed by the
law to the proclamation by the board of canvassers." Thus:
Why should the proclamation by the board of
canvassers suffice as basis of the right to assume
office, subject to future contingencies attendant to
a protest, and not the decision of a court of
justice? Indeed, when it is considered that the
board of canvassers is composed of persons who
are less technically prepared to make an accurate
appreciation of the ballots, apart from their being
more apt to yield to extraneous considerations,
and that the board must act summarily, practically
racing against time, while, on the other hand, the
judge has benefit of all the evidence the parties
can offer and of admittedly better technical
preparation and background, apart from his being
allowed ample time for conscientious study and
mature deliberation before rendering judgment,
one cannot but perceive the wisdom of allowing
the immediate execution of decisions in election
cases adverse to the protestees, notwithstanding
the perfection and pendency of appeals therefrom,
as long as there are, in the sound discretion of the
court, good reasons therefor.
To deprive trial courts of their discretion to grant execution
pending appeal would, in the words of Tobon Uy v.
COMELEC,26
bring back the ghost of the "grab-the-proclamation-prolong
the protest" techniques so often resorted to by devious
politicians in the past in their efforts to perpetuate their hold
to an elective office. This would, as a consequence, lay to
waste the will of the electorate.27
Thus, the COMELEC committed grave abuse of discretion in giving due
course, instead of dismissing outright, the petition in SPR No. 37-2002
despite the clear showing that respondent was guilty of forum-
shopping; and in setting aside the trial courts order granting execution
pending appeal.
WHEREFORE, in view of the foregoing, the instant petition is GRANTED.
The Order dated September 3, 2002 and the Resolution dated October
14, 2002 of the Commission on Elections in SPR No. 37-2002 are
ANNULLED and SET ASIDE and the said case is ordered DISMISSED on
the ground of forum-shopping. The Order dated August 20, 2002 of the
Regional Trial Court of Misamis Oriental, Branch 26, granting the
execution pending appeal of its decision in Election Protest No. 1-
M(2001), and the Writ of Execution dated August 21, 2002, are
REINSTATED. The full enforcement of the said Writ must forthwith be
made. The court of origin shall transmit immediately to the
Commission on Elections the records of SPL Election Case No. 1-
M(2001), and the Commission on Elections shall dispose of the appeal
in EAC No. A-12-2002 with deliberate dispatch. This Decision shall be
immediately executory. Costs against private respondent. SO
ORDERED.
CHARITO NAVAROSA, petitioner, vs.
COMMISSION ON ELECTIONS, HONORABLE DEAN R. TELAN, as
Presiding Judge, Regional Trial Court, Branch 9,
Kalibo, Aklan and ROGER M. ESTO, respondents.
This is a petition for certiorari of the Commission on Elections
(COMELEC) En Banc Resolution dated 15 April 2003 denying petitioner
Charito Navarosas motion for reconsideration of the COMELEC Second
Division Resolution[1] dated 28 November 2002. The COMELEC Second
Division Resolution ordered the execution pending appeal of the
Decision[2] of the Regional Trial Court, Branch 9, Kalibo, Aklan,
proclaiming respondent Roger M. Esto winner in the mayoralty race in
the 14 May 2001 elections.
The Facts
Petitioner Charito Navarosa (petitioner Navarosa) and
respondent Roger M. Esto (respondent Esto) were candidates for mayor
of Libacao, Aklan in the 14 May 2001 elections. On 17 May 2001, the
COMELEC Municipal Board of Canvassers of Libacao proclaimed
petitioner Navarosa as the duly elected mayor, with a winning margin
of three (3) votes over respondent Esto.[3]
Claiming that irregularities marred the canvassing of ballots in
several precincts, respondent Esto filed an election protest docketed as
Election Case No. 129 (election protest) in the Regional Trial Court,
Branch 9, Kalibo, Aklan (trial court). Petitioner Navarosa, who also
claimed that canvassing irregularities prejudiced her, filed a counter-
protest in the same case.
On 4 March 2002, after revision of the contested ballots, the trial
court rendered judgment in favor of respondent Esto. The trial court
found that respondent Esto obtained 4,595 votes over petitioner
Navarosas 4,553 votes. Thus, the trial court declared respondent Esto
the elected mayor of Libacao by a margin of 42 votes and annulled the
earlier proclamation of petitioner Navarosa. The trial court also ordered
petitioner Navarosa to pay respondent Esto actual damages and
attorneys fees. The dispositive portion of the decision provides:
WHEREFORE, judgment is hereby rendered:
 a) Declaring the Proclamation of xxx protestee [Navarosa]
as the duly elected Mayor of Libacao, Aklan and
the Certificate of Canvass of Votes and the
Proclamation of the Winning Candidates for
Municipal Offices, dated May 17, 2001, as null and
void;
b) Declaring the protestant, Roger M. Esto, as the duly
elected Municipal Mayor of Libacao, Aklan in the
May 14, 2001 election;
c) Ordering the protestee [Navarosa] to pay the sum
of P14,215.00 as actual and compensatory
damages, and the amount of P50,000.00 as and
for attorneys fees, plus the cost of suit.[4]
Petitioner Navarosa appealed the trial courts ruling to the
COMELEC (EAC Case No. A-9-2002). Respondent Esto, on the other
hand, filed with the trial court a motion for execution of the judgment
pending petitioner Navarosas appeal. Petitioner Navarosa opposed
respondent Estos motion. In the alternative, petitioner Navarosa
offered to file a supersedeas bond to stay execution pending appeal,
should the trial court grant respondent Estos motion.
In its Order of 22 March 2002 (Order), the trial court granted
respondent Estos motion subject to the filing of a P300,000
bond. However, in the same order, the trial court also granted
petitioner Navarosas prayer to stay the execution pending appeal,
upon filing a P600,000 supersedeas bond. The Order reads:
The Supreme Court has explicitly recognized and given approval to
execution of judgments pending appeal in election cases, filed under
existing election laws. In these cases, the immediate execution was
made in accordance with Sec. 2, Rule 39 of the Rules of Court (Ramas
et al. vs. COMELEC, et al., G.R. No. 130831, 2/10/98). There is,
therefore, no question now that execution pending appeal may be
granted.
xxx
[T]he grant of execution would give substance and meaning to the
peoples mandate specially since the court has established protestants
right to the office (Lindo vs. COMELEC cited in the Ramas case); more
than 10 months or nearly 1/3 of the 3-year term for Mayor had already
lapsed (Gutierrez vs. COMELEC, G.R. 126298, 3-25-97; Tobon Uy vs.
COMELEC also cited in the Ramas case). These are two good reasons to
justify execution of the decision pending appeal.
[P]rotestee [Navarosa] however, prays in the alternative, that should
execution pending appeal be granted, the same be stayed upon his
[sic] filing of supersedeas bond to be fixed by the court under Sec. 3,
Rule 39, 1997 Rules of Civil Procedure.
Unlike Sec. 2, Rule 39 where the grant of execution pending appeal is
conditioned upon the presence of the good and valid reason for its
grant, Sec. 3, Rule 39 does not provide for any condition precedent
before the discretionary execution of Rule 2 may be stayed. All that it
requires is that a sufficient supersedeas bond must be approved by
the court conditioned upon the performance of the judgment allowed
to be executed in case it shall be finally sustained in whole or in
part. Under this section, therefore, the filing of a supersedeas bond
sufficient in amount is enough to stay the execution granted under
Sec. 2.
Moreover, the margin of 42 votes in the instant case is not so big,
overwhelming or insurmountable as to be practically beyond or
improbable of being overturned by the higher courts. xxx
WHEREFORE, in view of the foregoing[,] the court finds that the
protestant, Roger M. Esto is entitled to the execution of the decision
dated March 4, 2002, pending appeal, upon the filing of a bond which
covers the salary and emoluments of the office of the Municipal Mayor
of Libacao, Aklan and or the payment of all damages in the amount
of P300,000.00, Philippine Currency, in cash, surety bond or real
property with assessed value in said amount to be filed on or before
April 3, 2002, furnishing copy thereof to the protestee or his duly
authorized representative.
The protestee, Charito Navarosa, considering that the margin is not so
insurmountable as to be beyond reversal by the higher court[,] is
hereby allowed to stay the execution of the decision of March 4, 2002
pending appeal, by filing a supersedeas bond in double the amount
posted by the protestant, on or before April 3, 2002, furnishing copy
thereof the protestant or his duly authorized representative.[5]
Both petitioner Navarosa and respondent Esto sought
reconsideration of the Order but the trial court denied their motions on
5 April 2002.
Respondent Esto filed a petition for certiorari with the COMELEC
against the Order. In her memorandum to the petition, petitioner
Navarosa raised for the first time the issue of the trial courts failure to
acquire jurisdiction over the election protest because of respondent
Estos failure to pay the COMELEC filing fee.
The Ruling of the COMELEC
In its Resolution dated 28 November 2002 (Resolution), the
COMELEC Second Division affirmed the trial courts Order granting
execution pending appeal and nullified the stay of the execution. The
Second Division also found that respondent Esto duly paid the
COMELEC filing fee. The Resolution reads:
Going now to the main issue at hand, did respondent judge gravely
abuse his discretion and/or exceed his jurisdiction when he stayed the
immediate execution of his decision on a finding of good reasons he
made in his questioned Order of March 22, 2002 by allowing in the
same Order the filing of a supersedeas bond double the amount posted
by petitioner?
The answer is yes.
It is [for] the Commission on Elections, in the exercise of its appellate
jurisdiction to issue the extraordinary writs of certiorari, prohibition,
mandamus and injunction over all contests involving elective municipal
officials decided by the trial courts of general jurisdiction elevated on
appeal, and not the trial court, that may order the stay or restrain the
immediate execution of the decision pending appeal granted by the
trial court of general jurisdiction in an election contest. Except when
the trial court reversed itself in a motion for reconsideration of its order
granting immediate execution, it cannot later on stay or restrain the
execution thereof in the guise of allowing the losing party to file a
supersedeas bond. The issue before the trial court where a motion for
execution pending appeal is filed is to determine whether or not there
are good reasons to justify the immediate execution pending
appeal. The issue is not whether x x x there are good reasons to stay
the immediate execution of the decision pending appeal.
The trial court, by granting the immediate execution of the March 4,
2002 decision, recognized that the good reasons cited in the
questioned Order constitute superior circumstances demanding
urgency that will outweigh the injuries or damages to the adverse
party if the decision is reversed. By declaring that petitioner Esto is the
duly elected Mayor of Libacao, Aklan, the trial court gave substance
and meaning to the peoples mandate as expressed in the ballot,
especially since it has established petitioner Estos right to the
office. The trial court cannot indirectly reverse its substantial finding of
good reasons by a rule of procedure which does not strictly apply in
election protest cases when it allowed the filing of a supersedeas bond
under Section 3, Rule 39 of the 1997 Rules of Civil Procedure. To allow
the application of the said procedural relief would defeat the right of
the winning candidate in an election protest to hold the public office by
virtue of the peoples mandate expressed through the ballot and to
perform the functions of the said public office.
xxx
It is interesting to note that instead of expounding on the propriety of
the supersedeas bond to stay the execution of a judgment in an
election protest case, private respondent raised for the first time in his
[sic] memorandum the issue of lack of jurisdiction of the trial court
over the instant election protest for the alleged failure of petitioner
Esto to pay the filing fee of P300.00 required under Section 9, Rule 35
of the COMELEC Rules of Procedure. However, the records of Election
Case No. 129 of the RTC of Kalibo, Aklan, Branch 9 showed
otherwise. The Official Receipts issued by the RTC of Kalibo, Aklan
shows [sic] that petitioners paid a total of P515.00 filing fees in
Election Case No. 129 by specifically stating therein [F]iling Fee in
Election Case No. 129. At the time of filing the election protest,
petitioner specified that the payment made was to cover the COMELEC
filing fee for the election protest. Upon assessment, petitioner paid not
only the amount of P300.00 required under Section 9, Rule 35 of the
COMELEC Rules of Procedure, but a total sum of P515.00 as filing fees.
While it is true that the issue of jurisdiction may be raised anytime,
even on appeal, the same is of no moment now.[6]
Petitioner Navarosa sought reconsideration of this ruling but the
COMELEC En Banc denied her motion on 15 April 2003.
Hence, this petition.
 On 10 June 2003, the Court required the parties to maintain
the status quo pending resolution of this petition.
The Issues
Petitioner Navarosa raises the following issues:
1. WHETHER PUBLIC RESPONDENT COMELEC EN
BANC ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION
WHEN IT AFFIRMED THE 28 NOVEMBER 2002
RESOLUTION OF THE COMELEC SECOND DIVISION
FOR FAILURE TO RULE ON THE BASIC ISSUE OF
LACK OF JURISDICTION OF THE COURT A
QUO OVER RESPONDENT ESTOS ELECTION
PROTEST FOR NON-PAYMENT OF THE MANDATORY
COMELEC FILING FEE OF P300.00.
2. WHETHER PUBLIC RESPONDENT COMELEC EN
BANC ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION
WHEN IT AFFIRMED THE 28 NOVEMBER 2002
RESOLUTION OF THE COMELEC SECOND DIVISION
DESPITE THE FACT THAT THERE WERE NO GOOD
REASONS TO EXECUTE THE 4 MARCH 2002
DECISION OF THE TRIAL COURT.
3. WHETHER PUBLIC RESPONDENT COMELEC EN
BANC ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION
WHEN IT AFFIRMED THE 28 NOVEMBER 2002
RESOLUTION OF THE COMELEC SECOND DIVISION
WHEN THE LATTER RULED THAT THE TRIAL COURT
HAD NO POWER TO ORDER THE STAY OF
EXECUTION OF ITS 4 MARCH 2002 DECISION
PENDING APPEAL IN AN ELECTION CONTEST,
BECAUSE SECTION 3, RULE 39 OF THE REVISED
RULES OF COURT DOES NOT APPLY TO ELECTION
CASES.[7]
The Ruling of the Court
The petition has no merit.
The Trial Court Acquired Jurisdiction Over Election Case No.
129
Petitioner Navarosa contends that the trial court did not acquire
jurisdiction over the election protest because of respondent Estos
failure to pay the COMELEC filing fee under Rule 35, Section 9 of the
COMELEC Rules of Procedure (Section 9). Procedurally, petitioner
Navarosa should not have raised this jurisdictional issue in this petition
which involves only the ancillary issue of whether to allow execution of
the trial courts decision pending appeal. Nevertheless, as the question
of the trial courts jurisdiction also affects its authority to issue ancillary
orders such as its Order of 22 March 2002 subject of this petition, we
have resolved to pass upon this issue.
Section 9 provides:
Filing Fee. No protest, counter-protest, or protest-in-intervention shall
be given due course without the payment of a filing fee in the amount
of three hundred pesos (P300.00) for each interest.
Each interest shall further pay the legal research fee as required by
law.
Respondent Esto must pay this filing fee before the trial court can
exercise its jurisdiction over the election protest. [8] The COMELEC filing
fee, to distinguish from the other mandatory fees under Rule 141 of the
Rules of Court, as amended, is credited to the Courts General Fund. [9]
Petitioner Navarosa claims that although the receipts issued by
the trial court show that respondent Esto paid P515 as filing and other
fees, only P100 was credited to the General Fund. The rest of what
respondent Esto paid accrued to the Judiciary Development Fund
(P400), the Legal Research Fund (P10) and the Victims Compensation
Fund (P5).[10] Consequently, respondent Esto paid only P100 of
the P300 COMELEC filing fee, for which reason the trial court did not
acquire jurisdiction over the election protest. Petitioner Navarosa also
claimed that the Second Division did not rule on this issue.
Contrary to petitioner Navarosas claim, the COMELEC Second
Division did rule on the issue of respondent Estos non-payment of the
full amount of the COMELEC filing fee. The Second Division held that
the P515 fees respondent Esto paid already covered the P300
COMELEC filing fee.
However, based on the trial courts Election Fees Form for
Election Case No. 129,[11] of the total amount of P515 respondent Esto
paid, only P100 was indeed credited to the General Fund.
Consequently, respondent Esto only paid P100 of the required P300
COMELEC filing fee.
In an earlier ruling,[12] the Court held that an election protest is
not dismissible if the protestant, relying on the trial courts assessment,
pays only a portion[13] of the COMELEC filing fee. However, in Miranda
v. Castillo,[14] the Court, reiterating Loyola v. Commission on
Elections,[15] held that it would no longer tolerate any mistake in the
payment of the full amount of filing fees for election cases filed after
the promulgation of the Loyola decision on March 25,
1997. Nevertheless, our rulings in Miranda and Loyolaare
inapplicable to the present case.
At no time did petitioner Navarosa ever raise the issue of
respondent Estos incomplete payment of the COMELEC filing fee during
the full-blown trial of the election protest. Petitioner Navarosa actively
participated in the proceedings below by filing her Answer, presenting
her evidence, and later, seeking a stay of execution by filing a
supersedeas bond. Not only this, she even invoked the trial courts
jurisdiction by filing a counter-protest against respondent Esto in which
she must have prayed for affirmative reliefs.[16]
Petitioner Navarosa raised the issue of incomplete payment of
the COMELEC filing fee only in her memorandum to respondent Estos
petition before the COMELEC Second Division. Petitioner Navarosas
conduct estops her from claiming, at such late stage, that the trial
court did not after all acquire jurisdiction over the election protest.
Although a party cannot waive jurisdictional issues and may raise them
at any stage of the proceedings, estoppel may bar a party from raising
such issues.[17] In Pantranco North Express v. Court of Appeals,
[18]
this Court applied the doctrine of estoppel against a party who also
belatedly raised the issue of insufficient payment of filing fees to
question the courts exercise of jurisdiction over the case. We held:
The petitioner raised the issue regarding jurisdiction for the first time in
its Brief filed with public respondent [Court of Appeals] x x x After
vigorously participating in all stages of the case before the trial court
and even invoking the trial courts authority in order to ask for
affirmative relief, the petitioner is effectively barred by estoppel from
challenging the trial courts jurisdiction.
Indeed, in Miranda and Loyola, as in every other case [19] where
we sustained the dismissal of the election protest for lack or
incomplete payment of the COMELEC filing fee, the protestee timely
raised the non-payment in a motion to dismiss. Before any revision of
the contested ballots, the protestee filed a petition
for certiorari questioning the trial courts jurisdiction before the
COMELEC and eventually before this Court. In contrast, in the instant
case, petitioner Navarosa did not raise the incomplete payment of the
COMELEC filing fee in a motion to dismiss. Consequently, the trial court
proceeded with the revision of the contested ballots and subsequently
rendered judgment on the election protest. Petitioner Navarosa raised
for the first time the incomplete payment of the COMELEC filing fee in
her memorandum before the COMELEC Second Division.
Thus, estoppel has set in precluding petitioner Navarosa from
questioning the incomplete payment of the COMELEC filing fee, and in
effect assailing the exercise of jurisdiction by the trial court over the
election protest. The law vests in the trial court jurisdiction over
election protests although the exercise of such jurisdiction requires the
payment of docket and filing fees by the party invoking the trial courts
jurisdiction.[20] Estoppel now prevents petitioner Navarosa from
questioning the trial courts exercise of such jurisdiction, which the law
and not any act of the parties has conferred on the trial court. At this
stage, the remedy for respondent Estos incomplete payment is for him
to pay the P200 deficiency in the COMELEC filing fee.[21] It is highly
unjust to the electorate of Libacao, Aklan, after the trial court has
completed revision of the contested ballots, to dismiss the election
protest and forever foreclose the determination of the true winner of
the election for a mere P200 deficiency in the COMELEC filing fee. We
repeat that:
[E]lection contests involve public interest, and technicalities and
procedural barriers should not be allowed to stand if they constitute an
obstacle to the determination of the true will of the electorate in the
choice of their elective officials. And also settled is the rule that laws
governing election contests must be liberally construed to the end that
the will of the people in the choice of public officials may not be
defeated by mere technical objections. In an election case the court
has an imperative duty to ascertain by all means within its command
who is the real candidate elected by the electorate.[22]
 Good Reasons Exist to Grant Execution
Pending Appeal in this Case
To grant execution pending appeal in election protest cases, the
following requisites must concur: (1) there must be a motion by the
prevailing party with notice to the adverse party; (2) there must be
good reasons for the execution pending appeal; and (3) the order
granting execution pending appeal must state the good reasons.
[23]
Petitioner Navarosa concedes respondent Estos compliance with the
first and third requisites. What she contests is the trial courts finding
that there are good reasons to order discretionary execution of its
decision.
In Ramas v. Commission on Elections,[24] the Court, after
reviewing pertinent jurisprudence, summarized the circumstances
qualifying as good reasons justifying execution pending appeal, thus:
In a nutshell, the following constitute good reasons, and a combination
of two or more of them will suffice to grant execution pending appeal:
(1) the public interest involved or the will of the electorate; (2) the
shortness of the remaining portion of the term of the contested office;
and (3) the length of time that the election contest has been pending.
The trial court in the present case, relying on cases [25] reviewed
in Ramas, invoked two good reasons to justify its order allowing
execution pending appeal. First, the order will give substance and
meaning to the peoples mandate. Second, more than 10 months or
nearly 1/3 of the 3-year term of the office in question had already
lapsed. The COMELEC found these good reasons sufficient. Being
consistent with Ramas, we find no grave abuse of discretion in the
ruling of the trial court or of the COMELEC.
Petitioner Navarosas invocation of Camlian v. Commission on
Elections[26] is unavailing. In Camlian, the COMELEC ruled that
circumstances such as public interest in the true outcome of the
elections[;] that the protestee illegally manufactured votes[;] and that
the appeal was interposed for delay do not suffice to justify execution
pending appeal. On appeal, we sustained the COMELEC, noting that
not every invocation of public interest with x x x reference to the will of
the electorate can be appreciated as a good reason especially so if the
same appears to be self-serving and has not been clearly established.
The Court further pointed out that the protestant failed to substantiate
his claim that the appeal is dilatory as it in fact assails the trial courts
ruling. These circumstances are absent in the present case,
precluding Camlians application.
Section 3 of Rule 39 Not ApplicableTo Election Protest
Cases
Unlike the Election Code of 1971,[27] which expressly provided for
execution pending appeal of trial courts rulings in election protests, the
present election laws are silent on such remedy. Nevertheless, Section
2, Rule 39 (Section 2) of the Rules of Court (now 1997 Rules of Civil
Procedure) applies in suppletory character to election cases, thus
allowing execution pending appeal in the discretion of the court. As
explained in Ramas:
The Omnibus Election Code of the Philippines (B.P. Blg. 881) and the
other election laws do not specifically provide for execution pending
appeal of judgment in election cases, unlike the Election Code of 1971
whose Section 218 made express reference to the Rules of Court on
execution pending appeal; xxx
The failure of the extant election laws to reproduce Section 218 of the
Election Code of 1971 does not mean that execution of judgment
pending appeal is no longer available in election cases. In election
contests involving elective municipal officials, which are cognizable by
courts of general jurisdiction; and those involving elective barangay
officials, which are cognizable by courts of limited jurisdiction,
execution of judgment pending appeal under Section 2 of Rule 39 of
the Rules of Court are permissible pursuant to Rule 143 of the Rules of
Court, which is now Section 4, Rule 1 of the 1997 Rules of Civil
Procedure. This Section 4 provides:
SEC 4. In what cases not applicable.- These Rules shall not apply to
election cases, land registration, cadastral, naturalization and
insolvency proceedings, and other cases not herein provided for,
except by analogy or in a suppletory character and whenever
practicable and convenient.
As to election cases involving regional, provincial, and city officials,
which fall within the exclusive original jurisdiction of the COMELEC,
Section 3 of Article IX-C of the Constitution vests the COMELEC with the
authority to promulgate its rules of procedure in order to expedite
disposition of election cases, including pre-proclamation
controversies. Additionally, Section 52(c), Article VII of the Omnibus
Election Code empowers the COMELEC to promulgate rules and
regulations implementing the provisions of the Code or other laws
which it is required to enforce and administer. Accordingly, the
COMELEC promulgated the COMELEC Rules of Procedure. Section 1 of
Rule 41 thereof expressly provides that [i]n the absence of any
applicable provision in [said] Rules, the pertinent provisions of the
Rules of Court in the Philippines shall be applicable by analogy or in a
suppletory character and effect.[28]
In the earlier case of Gahol v. Riodique,[29] the Court explained
the legislative intent behind the enactment of Section 218 of the
Election Code of 1971. In Gahol, the Court gave an additional
justification for allowing execution pending appeal of decisions of trial
courts, thus:
xxx [T]his innovative provision is the product of the bad experience of
the people under the previous election laws. Public policy underlies it.
xxx [S]omething had to be done to strike the death blow at the
pernicious grab-the-proclamation-prolong-the-protest technique often,
if not invariably, resorted to by unscrupulous politicians who would
render nugatory the peoples verdict against them and persist in
continuing in an office they very well know they have no legitimate
right to hold. xxx [T]o uphold the theory of Protestee that the very
nature of the matter in dispute in election contests, the holding of a
public office and the performance of its functions, makes gravely
doubtful the propriety of an execution pending appeal, what with the
possible placing of the corresponding powers of government in the
hands of one who might ultimately turn out not to be really entitled to
the position, is to negate the unquestionable and patent intent of the
legislature to give as much recognition to the worth of a trial judges
decision as that which is initially ascribed by the law to the
proclamation by the board of canvassers. Why should the proclamation
by the board of canvassers suffice as basis of the right to assume
office, subject to future contingencies attendant to a protest, and not
the decision of a court of justice? Indeed, when it is considered that the
board of canvassers is composed of persons who are less technically
prepared to make an accurate appreciation of the ballots, apart from
their being more apt to yield extraneous considerations, that the board
must act summarily, practically [racing] against time, while, on the
other hand, the judge has the benefit of all the evidence the parties
can offer and of admittedly better technical preparation and
background, apart from his being allowed ample time for conscientious
study and mature deliberation before rendering judgment, one cannot
but perceive the wisdom of allowing the immediate execution of
decisions in election cases adverse to the protestees, notwithstanding
the perfection and pendency of appeals therefrom, as long as there
are, in the sound discretion of the court, good reasons therefor.
(Emphasis supplied)
Thus, a primordial public interest to obviate a hollow victory for
the duly elected candidate as determined by the trial court lies behind
the present rule giving suppletory application to Section 2. Only a more
compelling contrary policy consideration can prevent the suppletory
application of Section 2. In insisting that the simple expedient of
posting a supersedeas bond can stay execution pending appeal,
petitioner Navarosa neither claims nor offers a more compelling
contrary policy consideration. Instead, she merely contends that
Section 3 of Rule 39 (Section 3) applies also in a suppletory character
because its Siamese twin[30] provision, Section 2, is already being so
applied. Such simplistic reasoning both ignores and negates the public
interest underlying Section 2s application. We cannot countenance
such argument.
Furthermore, a supersedeas bond under Section 3 cannot fully
protect the interests of the prevailing party in election protest cases.
Section 3 provides:
Stay of discretionary execution. Discretionary execution issued under
the preceding section may be stayed upon approval by the proper
court of a sufficient bond, filed by the party against whom it is
directed, conditioned upon the performance of the judgment or order
allowed to be executed in case it shall be finally sustained in whole or
in part. The bond thus given may be proceeded against on motion with
notice to the surety. (Emphasis supplied)
A supersedeas bond secures the performance of the judgment or
order appealed from in case of its affirmation. [31] Section 3 finds
application in ordinary civil actions where the interest of the prevailing
party is capable of pecuniary estimation, and consequently, of
protection, through the filing of a supersedeas bond. Thus, the
penultimate sentence of Section 3 states: [T]he bond thus given may
be proceeded against on motion with notice to the surety.
Consequently, it finds no application in election protest cases where
judgments invariably include orders which are not capable of pecuniary
estimation such as the right to hold office and perform its functions. As
well observed by the COMELEC Second Division in its Resolution in the
instant case:
The supersedeas bond, as used under Section 3, Rule 39 of the 1997 designate a COMELEC prosecutor to handle the prosecution of the
Rules of Civil Procedure, refers to a bond, either in cash or a surety cases and to file the appropriate motion for the preventive suspension
bond, filed by the losing party in an ordinary civil action to secure the of the respondents.
performance or to satisfy the judgment appealed from in case it is
affirmed on appeal in favor of the prevailing party. A supersedeas bond
The Law Department filed the corresponding information against
is filed purposely for the performance of the judgment appealed from
the respondents in E.O. Case No. 98-219 before the RTC, Branch 90,
in case it is affirmed by the appellate court. On the assumption that
Imus, Cavite, which was docketed as Criminal Case No. 7034-99.
the filing of the supersedeas bond applies in an election protest case,
the practical considerations of the matter dictate that it cannot secure
the performance of or satisfy the judgment rendered in an election Before the trial of Criminal Case No. 7034-99 commenced, or on
protest which basically involves the right to hold a public office and the 2 December 1999, a complaint was filed by Innocencio Rodelas and
performance of its functions in accordance with the mandate of the Gerardo Macapagal with the Office of the Provincial Prosecutor in Imus,
law, except insofar as the monetary award provided in the special Cavite, for violation of Section 261(a) of the Omnibus Election Code
order. By allowing the filing of a supersedeas bond to stay the against the witnesses in the criminal case for vote-buying, who were
execution of a judgment in an election protest declaring the protestant, the witnesses in E.O. Case No. 98-219. The complaint was docketed as
as in the case of petitioner herein, as the winning candidate who is I.S. No. 1-99-1080.
entitled to the right to hold and perform the functions of the contested
public office, would render the judgment in an election protest illusory.
On 10 April 2000, the Office of the Provincial Prosecutor resolved
xxx While the supersedeas bond ensures that the appealed decision if
to file separate informations for vote-selling in the various branches of
affirmed is satisfied, in an election protest case, such bond, in the
the RTC in Imus, Cavite, against the respondents in I.S. No. 1-99-
event the appealed case is affirmed and the execution pending appeal
1080. The cases were docketed as (1) Criminal Cases Nos. 7940-00 to
is proven to be meritorious, cannot adequately answer for the
7949-00 and 7981-00, which were assigned to Branch 22; (2) Criminal
deprivation of a duly elected candidate of his post, and his constituents
Cases Nos. 7973-00 to 7979-00 and 7970-00, assigned to Branch 21;
of their leader of choice, such deprivation being unquantifiable.
(3) Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00, assigned to
[32]
(Emphasis added)
Branch 20; and (4) Criminal Cases Nos. 7960-00 to 7969-00, assigned
to Branch 90.
As applied to the present case, the supersedeas bond petitioner
Navarosa filed can only answer for that portion of the trial courts ruling
On 23 June 2000, the respondents in I.S. No. 1-99-1080 appealed
ordering her to pay to respondent Esto actual damages, attorneys fees
before the COMELEC the 10 April 2000 Resolution of the Provincial
and the cost of the suit. It cannot secure execution of that portion
Prosecutor. On 6 July 2000, the COMELEC en banc denied the appeal
proclaiming respondent Esto duly elected mayor of Libacao, Aklan by
for lack of jurisdiction.[4] However, upon the urgent motion to set for
popular will of the electorate and authorizing him to assume the office.
hearing the appeal, the COMELEC en banc resolved to defer action on
This anomalous situation defeats the very purpose for the filing of the
the appeal and refer the same to the Law Department for comment
supersedeas bond in the first place.
and recommendation.[5]

In sum, the Court holds that the COMELEC did not commit grave
The Law Department of the COMELEC filed motions to suspend
abuse of discretion in ordering execution pending appeal of the trial
proceedings before Branches 20, 21, 22 and 90 of the RTC of Imus,
courts decision. Grave abuse of discretion implies capricious and
Cavite, until the COMELEC would have resolved the appeal of the
whimsical exercise of judgment amounting to lack of jurisdiction, or
respondents in I.S. No. 1-99-1080. The Presiding Judge of Branch 22
arbitrary and despotic exercise of power because of passion or
granted the motion for the suspension of proceedings in Criminal Cases
personal hostility. The grave abuse of discretion must be so patent and
Nos. 7940-00 to 7949-00 and 7981-00.
gross as to amount to an evasion or refusal to perform a duty enjoined
by law.[33] This does not obtain in the present case.
In its Minute Resolution No. 00-2453, [6] the COMELEC en
banc, upon the recommendation of its Law Department, declared null
WHEREFORE, we DISMISS the instant petition. The Resolution
and void the resolution of the Office of the Provincial Prosecutor in I.S.
dated 28 November 2002 of the COMELEC Second Division, and the
No. 1-99-1080. It held that the respondents therein are exempt from
Resolution dated 15 April 2003 of the COMELEC En Banc, are
criminal prosecution pursuant to the fourth paragraph of Section 28 of
AFFIRMED. The status quo order dated 10 June 2003 is LIFTED and the
R.A. No. 6646,[7] otherwise known as The Electoral Reforms Law of
COMELEC is directed to cause the implementation of the Decision of
1987, which grants immunity from criminal prosecution persons who
the Regional Trial Court of Kalibo, Aklan, Branch 9, in Election Case No.
voluntarily give information and willingly testify against those liable for
129, without prejudice to any judgment the COMELEC may render in
vote-buying or vote-selling. It further directed the Law Department to
EAC Case No. A-9-2002. Moreover, respondent Roger M. Esto shall pay
file the necessary motions to dismiss the criminal cases filed against
immediately the P200 deficiency in the COMELEC filing fee.
the said respondents.

SO ORDERED.
COMMISSION ON ELECTIONS, petitioner, vs. HON LUCENITO N.
TAGLE, Presiding Judge, Regional Trial Court, Branch
20, Imus, Cavite, respondent.
DECISION
DAVIDE, JR., C.J.:
In this special civil action for certiorari and mandamus, petitioner
Commission on Elections (COMELEC) seeks the nullification of the
orders of 16 March 2001 [1] and 9 May 2001[2] of respondent Judge
Lucenito N. Tagle of the Regional Trial Court (RTC), Branch 20, Imus,
Cavite, denying petitioners motion to dismiss Criminal Cases Nos.
7950-00 to 7959-00 and 7980-00 and motion for reconsideration,
respectively.
Pursuant to Minute Resolution No. 00-2453, the Law Department
filed a motion to dismiss[8] Criminal Cases Nos. 7950-00 to 7959-00 and
7980-00 before Branch 20 of the RTC of Imus, Cavite, presided by
herein respondent judge. The latter, however, denied the said motion
and the motion for reconsideration. According to respondent judge,
before one can be exempt from prosecution under the fourth
paragraph of Section 28 of R.A. No. 6646, it is necessary that such
person has already performed the overt act of voluntarily giving
information or testifying in any official investigation or proceeding for
the offense to which such information or testimony was given. It was
thus premature to exempt the respondents in I.S. No. 1-99-1080 from
criminal prosecution, since they have not yet testified.
Hence, this petition, ascribing to the respondent judge grave
abuse of discretion amounting to excess or lack of jurisdiction in
peremptorily denying the prosecutions motion to dismiss Criminal
Cases Nos. 7950-00 to 7959-00 and 7980-00.

This Court referred the petition to the Office of the Solicitor

During the 11 May 1998 elections, Florentino A. Bautista ran for
the position of mayor in the Municipality of Kawit, Cavite. On 8 July
1998, he filed with the COMELEC a complaint against then incumbent
mayor Atty. Federico Poblete, Bienvenido Pobre, Reynaldo Aguinaldo,
Arturo Ganibe, Leonardo Llave, Diosdado del Rosario, Manuel Ubod,
Angelito Peregrino, Mario Espiritu, Salvador Olaes and Pedro Paterno,
Jr., for violation of Section 261 (a) and (b) of the Omnibus Election
Code. The complaint was supported by the separate affidavits of forty-
four (44) witnesses attesting to the vote-buying activities of the
respondents and was docketed as E.O. Case No. 98-219.
On 25 February 1999, upon the recommendation of its Law
Department, the COMELEC en banc issued a resolution[3] directing the
filing of the necessary information against the respondents in E.O. Case
No. 98-219 and authorizing the Director IV of the Law Department to
General (OSG) and required it to manifest whether it is adopting the
petition.[9] In a Manifestation and Motion [10] filed with this Court, the
OSG stated that it repleads the submissions contained in the petition
and adopts the petition as its own.
The petition is meritorious.
A free, orderly, honest, peaceful, and credible election is
indispensable in a democratic society. Without it, democracy would not
flourish and would be a sham. Election offenses, such as vote-buying
and vote-selling, are evils which prostitute the election process. They
destroy the sanctity of the votes and abet the entry of dishonest
candidates into the corridors of power where they may do more
harm. As the Bible says, one who is dishonest in very small matters is
dishonest in great ones. One who commits dishonesty in his entry into
an elective office through the prostitution of the electoral process
cannot be reasonably expected to respect and adhere to the
constitutional precept that a public office is a public trust, and that all
government officials and employees must at all times be accountable
to the people and exercise their duties with utmost responsibility,
integrity, loyalty, and efficiency.
The provision of law alleged to have been violated by the
respondents in E.O. Case No. 98-219, who are the accused in Criminal
Case No. 7034-99, reads as follows:
SEC. 261. Prohibited Acts. - The following shall be guilty of an election
offense:
(a) Vote-buying and vote-selling. - (1) Any person who gives, offers or
promises money or anything of value, gives or promises any office or
employment, franchise or grant, public or private, or makes or offers to
make an expenditure, directly or indirectly, or cause an expenditure to
be made to any person, association, corporation, entity, or community
in order to induce anyone or the public in general to vote for or against
any candidate or withhold his vote in the election, or to vote for or
against any aspirant for the nomination or choice of a candidate in a
convention or similar selection process of a political party.
(2) Any person, association, corporation, group or community who
solicits or receives, directly or indirectly, any expenditure or promise of
any office or employment, public or private, for any of the foregoing
considerations.
(b) Conspiracy to bribe voters. - Two or more persons whether
candidates or not, who come to an agreement concerning the
commission of any violation of paragraph (a) of this section and decide
to commit it.
One of the effective ways of preventing the commission of vote-
buying and of prosecuting those committing it is the grant of immunity
from criminal liability in favor of the party whose vote was bought. This
grant of immunity will encourage the recipient or acceptor to come into
the open and denounce the culprit-candidate, and will ensure the
successful prosecution of the criminal case against the latter. Congress
saw the wisdom of this proposition, and so Section 28 of R.A. No. 6646
on Prosecution of Vote-Buying and Vote-Selling concludes with this
paragraph:
The giver, offeror, the promisor as well as the solicitor, acceptor,
recipient and conspirator referred to in paragraphs (a) and (b) of
Section 261 of Batas Pambansa Blg. 881 shall be liable as
principals: Provided, That any person, otherwise guilty under said
paragraphs who voluntarily gives information and willingly testifies on
any violation thereof in any official investigation or proceeding shall be
exempt from prosecution and punishment for the offenses with
reference to which his information and testimony were given: Provided,
further, That nothing herein shall exempt such person from criminal
prosecution for perjury or false testimony.
However, to avoid possible fabrication of evidence against the
vote-buyers, especially by the latters opponents, Congress saw it fit to
warn vote-sellers who denounce the vote-buying that they could be
liable for perjury or false testimony should they not tell the truth.
It must be stressed that the COMELEC has the exclusive power to
conduct preliminary investigation of all election offenses punishable
under the election laws and to prosecute the same, except as may
otherwise be provided by law. [11] The Chief State Prosecutor, all
Provincial and City Prosecutors, or their respective assistants are,
however, given continuing authority, as deputies of the COMELEC, to
conduct preliminary investigation of complaints involving election
offenses and to prosecute the same. [12] This authority may be revoked
or withdrawn by the COMELEC anytime whenever, in its judgment,
such revocation or withdrawal is necessary to protect the integrity of
the COMELEC and to promote the common good, or when it believes
that the successful prosecution of the case can be done by the
COMELEC.[13]
In this case, when the COMELEC nullified the resolution of the
Provincial Prosecutor in I.S. No. 1-99-1080, which was the basis of the
informations for vote-selling, it, in effect, withdrew the deputation
granted to the prosecutor. Such withdrawal of the deputation was
clearly in order, considering the circumstances obtaining in these cases
where those who voluntarily executed affidavits attesting to the vote-
buying incident and became witnesses against the vote-buyers now
stand as accused for the same acts they had earlier denounced. What
the Prosecutor did was to sabotage the prosecution of the criminal
case against the vote-buyers and put in serious peril the integrity of
the COMELEC, which filed the said case for vote-buying. If the
Prosecutor had listened to the command of prudence and good faith,
he should have brought the matter to the attention of the COMELEC.
Petitioner COMELEC found that the respondents in I.S. No. 1-99-
1080, who executed affidavits and turned witnesses in Criminal Case
No. 7034-99, voluntarily admitted that they were the acceptors or
recipients in the vote-buying done by the accused in said case. It was
precisely because of such voluntary admission and willingness to
testify that the COMELEC en banc, in its Minute Resolution No. 00-
2453, declared null and void the resolution of the Office of the
Provincial Prosecutor of Cavite in I.S. No. 1-99-1080 and held that the
respondents therein are exempt from criminal prosecution pursuant to
the last paragraph of Section 28 of R.A. No. 6646. Hence, it directed its
Law Department to file a motion to dismiss the criminal cases which
the Office of the Provincial Prosecutor filed in court against the
respondents in I.S. No. 1-99-1080.
We agree with the petitioner and hold that the respondents in I.S.
No. 1-99-1080, who are the accused in Criminal Cases Nos. 7950-00 to
7959-00 and 7980-00, are exempt from criminal prosecution for vote-
selling by virtue of the proviso in the last paragraph of Section 28 of
R.A. No. 6646. Respondent judge lost sight of the fact that at the time
the complaint for vote-selling was filed with the Office of the Provincial
Prosecutor, the respondents in I.S. No. 1-99-1080 had already executed
sworn statements attesting to the corrupt practice of vote-buying in
the case docketed as Criminal Case No. 7034-99. It cannot then be
denied that they had already voluntarily given information in the vote-
buying case. In fact, they willingly testified in Criminal Case No. 7034-
99 per petitioners Memorandum filed with this Court. [14]
In a futile attempt to justify his denial of the motion to dismiss
Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00, respondent
judge averred in his comment on the petition that nothing was
mentioned in the motion to dismiss that the accused in said cases had
already given information or testified in any proceeding. Besides, no
record of any preliminary investigation was attached to the motion to
dismiss. The petitioner merely referred to the dispositive portion of
Minute Resolution No. 00-2453 without mentioning any preliminary
investigation conducted by the Law Department of the COMELEC.
This contention is without basis. A reading of the motion to
dismiss Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00 shows
that a certified true copy of COMELEC Minute Resolution No. 00-2453
was attached thereto and was made an integral part thereof.The
attached resolution indicated that the accused in the cases sought to
be dismissed had voluntarily given information and were willing to
testify against the vote-buyers, and are therefore utilized as witnesses
in the pending case for vote-buyers docketed as Criminal Case No.
7034-99.
Clearly then, respondent judge committed grave abuse of
discretion when he denied the motion to dismiss Criminal Cases Nos.
7950-00 to 7959-00 and 7980-00 despite COMELECs determination
that the accused therein are exempt from criminal prosecution for
vote-selling pursuant to the proviso in the fourth paragraph of Section
28 of R.A. No. 6646.
WHEREFORE, the petition is GRANTED. The challenged orders
dated 16 March 2001 and 9 May 2001 of respondent judge in Criminal
Cases Nos. 7950-00 to 7959-00 and 7980-00 before Branch 20 of the
Regional Trial Court in Imus, Cavite, are hereby SET ASIDE, and said
criminal cases are ordered DISMISSED.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 87743 August 21, 1990
ROBERT F. ONG, petitioner vs. MARIA TERESITA HERRERA-
MARTINEZ, THE CITY COUNCIL OF MANILA and THE CITY
TREASURER OF MANILA, respondents.
Petitioner Robert F. Ong assails the appointment and assumption of
duties as Councilor in the City Council of Manila of respondent Ma.
Teresita Herrera-Martinez, in place of deceased Councilor Saturnino
Herrera who represented the Third District of Manila.
It appears that Saturnino Herrera, who was the father of respondent
Martinez, was one of the Liberal Party candidates duly elected as
Councilor for Manila's Third District in the local elections of January 18,
1988. He performed his duties as such councilor until his death on
October 14, 1988, thus leaving the position open for the appointment
of a qualified replacement from the same political party where the
deceased councilor belonged.
Petitioner, who was a defeated candidate of the Liberal Party in the
Third District of Manila, on the strength of an indorsement by the
Treasurer of the said party in the district which was allegedly supported
by 80% of the ward leaders of the party of the same district as
embodied in their resolution, was appointed on February 9, 1989 as
member of the Sangguniang Panglunsod (City Council) by the
Secretary of Local Government to fill the vacancy created by the late
Councilor Saturnino Herrera. On the same date, petitioner took his oath
of office as such councilor after which the Secretary of Local
Government informed Mayor Gemiliano Lopez, Jr. and Vice-Mayor and
Presiding Officer Danilo Lacuna of the appointment of petitioner.
Likewise, in his lst Indorsement of March 13, 1989, the Undersecretary
of Local Government forwarded petitioner's appointment to Presiding
Officer of the City Council Danilo Lacuna.
In the regular session of the City Council held on March 9, 1989, said
Council, acting on the letter of the Secretary of Local Government
dated February 9, 1989 informing them of the four appointments
including that of petitioner, moved to exclude petitioner and the other
appointees from the session hall. In the subsequent session of the
Council on March 14, 1989, petitioner and his co-appointees were
formally excluded from the session hall with sixteen (16) councilors
voting for such exclusion and none against it, with the rest of the
Council members abstaining.
The records show that respondent Martinez went through the legal
formalities or standard procedure prior to her appointment to the
vacated position subject of this. controversy.
Thus, on November 4, 1988, nine out of the eleven incumbent LP
Councilors in the City Council endorsed the appointment of respondent
per their resolution. This resolution was forwarded to the Office of the
Chairman of the Liberal Party, Manila Chapter.
On March 1, 1989, aforesaid Chairman, in turn, nominated respondent
for appointment per his letter-nomination to President Corazon Aquino
thru the Secretary of Local Government. On March 8, 1989, Senate
President Jovito Salonga as National Head of the Liberal Party was
furnished with a copy of this letter-nomination.
On March 13, 1989, Congressman Leonardo Fuguso as President of the
LP Third District Chapter also nominated respondent to National
President Salonga of the Party. President Salonga, in turn, nominated
respondent to Secretary Luis Santos of the Department of Local
Government pursuant to Section 50 of the Local Government Code.
On March 17, 1989, Secretary Santos, acting for the President, issued
an appointment to respondent.
Then on March 21, 1989, the first session day after respondent's
appointment, the City Council, by a vote of twenty-four members in
favor with no member opposing recognized her as member of said
Council.
Finally, the Presiding Officer of the City Council directed its Secretariat
to include the name of respondent in the payroll of the City Council.
Respondent thus assumed and performed her duties as Councilor for
the Third District of Manila until the restraining order of the Court
issued on April 20, 1989 was received by respondent.
This petition now seeks to annul the appointment of respondent
Martinez and to declare petitioner to be the holder of the position of
Councilor in place of deceased Saturnino Herrera.
Petitioner anchors his appeal on the following grounds:
1. The Secretary of the Department of Local Government, in appointing
respondent Martinez on March 17, 1989, violated the election ban on
appointments under Res. No. 2054 of the Comelec dated December 7,
1988 since her appointment was not cleared for exemption from the
election ban and, therefore, the same was made beyond and in excess
of the Secretary's authority and by reason of which, the appointment is
null and void.
2. Respondent Martinez is not a member of the Liberal Party and
cannot be appointed to the position of Councilor, a vacancy created by
the death of a member of said Party.
3. Petitioner's appointment is valid, complete and beyond recall.
4. Petitioner is entitled to the position held by respondent. Respondent,
on the other hand, argues:
1. Petitioner misled the Court in claiming that he has a right to the
contested position. His appointment was indorsed only by the Treasurer
of the LP Chapter, 3rd District of Manila. The Treasurer's indorsement
was not known nor authorized by the head of the LP in said district.
Neither was the nomination brought to the attention of the Chairman of
the LP, Manila Chapter. The proper procedure was not observed by
petitioner. The unauthorized action of petitioner cannot be cured or
ratified by an alleged resolution of 80% of ward leaders and which
resolution was adopted long after the appointment of petitioner.
Hence, petitioner's appointment was void from the very beginning for
lack of authority of the Treasurer who nominated him.
Contrary to petitioner's claim, respondent also contends that the
former has not assumed office; neither has he exercised or performed
the functions of the position because he was prevented from doing so
by the outright refusal of the City Council to recognize his
appointment.
2. Petitioner has no right to the position and for which reason, he lacks
the legal personality to institute the present petition for quo
warranto, mandamus and prohibition.
While petitioner claims that he took his oath on February 9, 1989 which
was a calculated move to avoid the election ban on appointments, he
used a Residence Certificate issued on February 22, 1989 only. This
means that he could not have taken his alleged oath before the
issuance of the residence certificate.
3. The appointment of respondent possesses all the requisites of a
valid appointment according to legal and regular procedures. She avers
that her appointment was indorsed by nine out of eleven LP incumbent
councilors and that her nomination was favorably indorsed by the
Liberal Party hierarchy from the Chairman of the Third District, thru the
Chairman of the Manila Chapter up to the National President of the LP;
and, that she was duly appointed on the basis of the series of
nominations of the LP hierarchy.
4. The appointment of respondent is not covered by the election ban
contemplated under Sec. 261 (g) of the Omnibus Election Code.
The case for respondent appears meritorious. Respondent had gone
through the regular and standard nomination process which had been
officially acknowledged by the Secretary of Local Government.
Sec. 50 of the Local Government Code specifically provides:
In case of permanent vacancy in the sangguniang
panlalawigan, sangguniang panglungsod,
sangguniang bayan or sangguniang barangay, the
President of the Philippines, upon recommendation
of the Minister of Local Government, shall appoint
a qualified person to fill the vacancy in the
sangguniang panlalawigan and sangguniang
panglunsod of highly urbanized and component
cities; the governor, in the case of sangguniang
bayan members; or the city or municipal mayor, in
the case of sangguniang barangay
members. Except for the sangguniang barangay,
the appointee shall come from the political party
of the sangguniang member who caused the
vacancy, and shall serve the unexpired term of the
vacant office. (Emphasis supplied)
Since deceased Councilor Saturnino Herrera who had caused the
contested vacancy comes from the Liberal Party, it follows that his
mode of replacement should be governed by the standing rules of the
aforenamed Party.
Thus, We quote the pertinent sections of the 1967 Liberal Party
Revised Rules (1971 Reprint furnished by the Comelec):
Rule 32. Approval of Resolution of District,
Provincial, City of Municipal Government.
Resolutions adopted by provincial, district, city or
municipal committee shall not be final unless
approved by the National Directorate, the
Executive Committee, or the Party President.
(Under Chapter Ill on The Manila City Special
Rules)
Thus, too, Section A (3) of Rule 10 of the Liberal Party Rules (on the
Powers of the National Directorate) provides:
3) To choose and proclaim official candidates of
the Party for provincial positions, and whenever
necessary, convenient or proper, also for Municipal
and City positions, in accordance with the
requirements of these Rules.
Conformably with the aforequoted provisions of the Liberal Party Rules,
all resolutions, which may include resolutions nominating replacements
for deceased city councilors, should first be approved either by the
National Directorate, the Executive Committee or the Party President in
order that said resolutions could be considered final and valid.
Logically and by analogy, the National Directorate or in its stead, the
Executive Committee or the Party President may choose and nominate
the party's proposed appointee, from among its members, to the
position vacated by a deceased city councilor.
Correspondingly, We quote hereunder the body of the letter-
nomination of the then LP National President Jovito R. Salonga explicitly
manifesting the full support of the party hierarchy for herein
respondent. Thus
I hereby nominate in behalf of the Liberal Party of
which I am the incumbent President Ms. Maria
Teresita Herrera-Martinez, to take the place of
 Councilor Saturnino C. Herrera of the Liberal Party
who passed away on October 14,1988.
Ms. Martinez is likewise the recommendee of the
Liberal Party, Manila Chapter headed by former
Assemblyman Lito Atienza. She is also
recommended by Congressman Leonardo Fuguso.
Please be advised that the Liberal Party, under
which the late Councilor Saturnino C. Herrera was
elected, has no nominee to the vacated position
other than Ms. Maria Teresita Herrera-Martinez.
This is also to serve notice that no other person is
authorized to nominate any LP member to any
vacancy in the City Council of Manila." (Emphasis
supplied)
Acting on the solid recommendation of the LP hierarchy, from the
district level up to the national level, the Secretary of Local
Government correspondingly issued the letter-appointment to
respondent Martinez, the pertinent portion of which reads as follows:
Upon the recommendation of the President of the
Liberal Party and the Chapter President of the
Liberal Party, 3rd District of the City of Manila, and
pursuant to the provisions of existing laws, you are
hereby appointed member of the Sangguniang
Panglungsod, City of Manila, Vice Councilor
Saturnino C. Herrera. (Emphasis supplied)
Notably, respondent's appointment was accepted or recognized by the
City Council in its session of March 21, 1989. The minutes of said
session reveal that twenty-four (24) councilors voted to accept the
appointment of respondent and not a single member objected to or
opposed the acceptance. Right then and there, the Presiding Officer
announced the acceptance of respondent's appointment and the Chair
directed the Secretariat to include her name as a new member of the
City Council.
In the case of petitioner, however, a very different scenario took place.
The letter dated February 9, 1989 of Secretary Luis Santos informing
Vice-Mayor and Presiding Officer Lacuna that he had appointed
petitioner and three other appointees, carried a request that due
recognition be accorded to them, particularly petitioner as member of
the Council. Petitioner and the other appointees, as per minutes of the
Council's session of March 9, 1989, were excluded from the session hall
by reason of the seconded motion of the Majority Floor Leader. In the
subsequent session of the Council on March 14, 1989, petitioner and
his co-appointees were formally excluded from the session hall when
sixteen (1 6) members of the Council voted in favor of their exclusion
and no one against it. Significantly, such exclusion meant that the City
Council refused to recognize their appointments.
As a conclusive confirmation of the non-recognition of petitioner's
defective appointment, the Secretary of Local Government recalled the
former's appointment in his letter of March 17, 1989. The letter thus
reads:
Dear Mr. Ong:
In connection with our letter of February 9,1989,
appointing you as Sangguniang Panglunsod
member of the City of Manila as a consequence of
the death of Councilor Saturnino C. Herrera, please
be informed that we are recalling said
appointment it appearing that you were not
recommended for the position by the appropriate
leader of the Liberal Party as mandated by the
sub-section b(1) Rule XIX of the, Rules and
Regulations Implementing the Local Government
Code (Batas Pambansa Blg. 337). (Emphasis
supplied)
Both petitioner and respondent have invoked the election ban imposed
under Sec. 261 (g) of the Omnibus Election Code. The election ban
covered the period from February 11 to March 27, 1989 by reason of
the Barangay election held on March 28, 1989. Both parties have
capitalized on the prohibitive provision for the purpose of having their
respective appointments declared illegal or null and void.
Sec. 261 (g) of the Omnibus Election Code provides thus:
(g) Appointment of new employees, creation of
new position, promotion, or giving salary
increases. During the period of forty- five days
before a regular election and thirty days before a
special election, (1) any head, official or
appointing officer of a government office, agency
or instrumentality, whether national or local,
including government-owned or controlled
corporations, who appoints or hires any
new employee whether provisional, temporary or
casual, or creates and fills any new position,
except upon prior authority of the Commission.
The Commission shall not grant the authority
sought unless, it is satisfied that the position to be
filled is essential to the proper functioning of the
office or agency concerned, and that the position
shall not be filled in a manner that may influence
the election.
As an exception to the foregoing provisions, a new
employee may be appointed in case of urgent
need: Provided, however, That notice of the
appointment shall be given to the Commission
within three days from the date of the
appointment. Any appointment or hiring in
violation of this provision shall be null and void.
The aforequoted provision does not apply to both assailed
appointments because of the following reason:
The permanent vacancy for councilor exists and its filling up is
governed by the Local Government Code while the appointment
referred to in the election ban provision is covered by the Civil Service
Law.
For having satisfied the formal requisites and procedure for
appointment as Councilor, which is an official position outside the
contemplation of the election ban, respondent's appointment is
declared valid.
The issue on the alleged discrepancy between the dates of petitioner's
oath and his residence certificate need not be tackled now because it
will not anymore affect the recalled appointment of petitioner. If ever,
the matter casts a doubt on petitioner's credibility and honesty.
WHEREFORE, the petition is hereby DISMISSED, and the temporary
restraining order is correspondingly LIFTED.
SO ORDERED.
G.R. No. L-42288 February 16, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, vs.
CORNELIO BAYONA,
VICKERS, J.:
This is an appeal from a decision of Judge Braulio Bejasa in the Court of
First Instance of Capiz, finding 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 celebrahan las 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
inspecionar 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 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.
Inmediatament 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. Desidierio
y el comadante 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 distancia 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 su 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 querrellada y, por consiguiente,
al condenarle a prision y multa.
As to the question of fact raised by the first assignment of error, it is
sufficient to say 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, testified 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 find 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
sufficient 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 fifty 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 firearms; that people
living in the vicinity of electoral precincts would be prohibited from
cleaning or handling their firearms within their own residences on
registration and election days;
That the object of the Legislature was merely to prohibit the display of
firearms 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 firearms was intended for the
purpose of using them directly or indirectly to influence 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 on 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 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.)
While it is true that, as a rule and on 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 difficulty in the enforcement of the law. If a man with a
revolver merely passes along a public road on election day, within fifty
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 officer in pursuing a
criminal; nor would the prohibition extend to persons living within fifty
meters of a polling place, who merely clean or handle their firearms
within their own residences on election day, as they would not be
carrying firearms 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 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 influence or
intended to influence the mind of any voter, anybody could sell
intoxicating liquor or hold a cockfight 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 affirmed, with
the costs against the appellant.
G.R. No. 94521 October 28, 1991
OLIVER O. LOZANO, vs. HON. COMMISSIONER HAYDEE B.
YORAC OF THE COMMISSION ON ELECTIONS,
Regalado, J.:p
Petitioner Oliver L. Lozano filed these two special civil actions
for certiorari, namely: G.R. No. 94521 which seeks the review of the
undated
order 1 of respondent Commissioner Haydee B. Yorac denying the
motion for her voluntary inhibition and/or disqualification in SPC No.
88-040, entitled "Oliver O. Lozano, et al. vs. Mayor Jejomar C.
Binay"; and G.R. No. 94626 which prays for a reversal of the en
banc resolution 2 promulgated by respondent Commission on Elections
(COMELEC) on August 7, 1990 3 dismissing the disqualification petition
and criminal complaint for vote buying against respondent Mayor
Jejomar C. Binay in connection with the January 18, 1988 local
elections, and its minute resolution of August 15, 1990 4 denying due
course to petitioner's motion for reconsideration.
The backdrop of this case on record reveals the following antecedent
facts:
1. On January 11, 1988, prior to the January 18, 1988 local elections,
petitioner and Bernadette Agcorpa, a registered voter of Makati, filed
with the COMELEC a petition for disqualification against then candidate
for mayor Jejomar C. Binay on the ground that respondent Binay used
P9.9 million of municipal funds to enhance his candidacy and his entire
ticket under the Lakas ng Bansa.
2. The disqualification case was assigned to the Second Division of the
COMELEC composed of Commissioner Haydee B. Yorac, as presiding
officer, and Commissioners Andres R. Flores and Magdara B.
Dimaampao, as members.
3. The Second Division, through its Presiding Commissioner, referred
the case to the Law Department of respondent commission for
preliminary investigation of the criminal aspect. On February 4, 1988,
Binay filed his counter-affidavit with said department.
4. On June 21, 1988, petitioner filed an Omnibus Motion praying for the
inhibition and/or disqualification of Commissioners Yorac and Africa.
This was the first of several motions for inhibition filed by petitioner
before respondent commission. Petitioner also prayed that the
disqualification petition be referred for consideration en
banc. Commissioner Yorac denied the motion for inhibition. On August
10, 1988, the COMELEC en banc denied the prayer that the case be
heard en banc, ruling that "no substantial reason exists why this case
should be taken en banc; and considering finally that the case is set for
hearing by the Second Division."
5. On October 26, 1988, petitioner Lozano himself filed a motion to
disqualify Commissioner Yorac because she postponed motu proprio a
hearing set on the ground that she will study the issue of jurisdiction.
Said motion was denied.
6. On November 3, 1988, the COMELEC en banc promulgated
Resolution No. 2050 which provides that petitions for disqualification
filed prior to the January 18, 1988 local elections based on Section 68
of the Omnibus Election Code but not resolved before the elections
shall be referred for preliminary investigation to the Law Department
which shall submit its report to the Commission en banc. Pursuant to
said resolution, the Second Division on even date referred back the
disqualification case against respondent Binay to the Law Department
"before taking any action thereon."
7. On November 8, 1988, petitioner filed another motion praying that
the disqualification case be heard and decided en banc invoking
therein COMELEC Resolution No. 2050. Instead of issuing a formal
resolution, respondent COMELEC authorized then Chairman Hilario G.
Davide, Jr. (now a member of this Court) to reply to petitioner's
counsel.
8. On May 23, 1990, the Law Department submitted its investigation
report 5 recommending that criminal charges be filed against
respondent Binay for violation of Section 261(a) of the Omnibus
Election Code, as follows:
PREMISES CONSIDERED, the Law Department
(Investigation and Prosecution Division)
RECOMMENDS as follows:
1. To file the necessary information against Mayor
Jejomar Binay before the proper Regional Trial
Court of the National Capital Region for violation of
Section 261(a) of the Omnibus Election Code, the
prosecution thereof to be handled by the Special
Prosecution Committee;
2. To dismiss the charge against Mayor Jejomar
Binay for threats and intimidation under Section
261(e) of the Omnibus Election Code for lack of
evidence; and
3. To dismiss the charge against Conchitina
Bernardo for insufficiency of evidence.
9. On July 2, 1990, petitioner filed a motion praying that the
disqualification case be, resolved jointly with the investigation report of
the Law Department.
10 On July 9, 1990, petitioner filed a third motion for the voluntary
inhibition and/or disqualification of Commissioner Yorac for having
issued a previous memorandum addressed to the chairman and
members of respondent commission expressing her opinion that Binay
should first be convicted by the regular courts of the offense of vote
buying before he could be disqualified. The full text of said
memorandum 6 reads:
I submit for the Commission's consideration the
matter of the procedural problems in the above
case.
The chronology of events, so far as this case is
concerned, is as follows:
1. SPC No. 88-040 for the disqualification of
Jejomar Binay, then candidate for Mayor of Makati
was filed on January 11, 1988. It was assigned to
the second Division.
2. On July 29, 1988, petitioners filed a motion to
set the case for hearing alleging that the
Commission on Audit (COA) had officially
confirmed the allegations of the complainants.
3. Hearings were actually conducted on August 11,
September 12, October 12 and October 19, 1988.
4. On November 3, 1988, the Commission en
banc adopted Resolution No. 88-2050, which, inter
alia provides that:
1. . . .
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 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. Such recourse may be
availed of irrespective of
whether the respondent has
been elected or has lost in the
election;
3. The Law Department shall
terminate the preliminary
investigation within thirty (30)
days from receipt of the
referral and shall submit its
study, report and
recommendation to the
Commission en banc within
five (5) days from the
conclusion of the preliminary
investigation. If it makes
a prima facie finding of guilt,
it shall submit with such study
the information for filing with
the appropriate court.
5. On the same date, conformable with Resolution
No. 88-2050, the Second Division referred SPC No.
88-040 to the Law Department.
6. In the course of the investigation by the Law
Department, the case became entangled with
procedural difficulties the resolution of which has
been sought in the Second Division.
My own personal thinking on the matter is that
since the preliminary investigation is the
determination of criminal liability, with the
administrative consequence of removal imposable
only as long term sanction, i.e., after final criminal
conviction, the matter of procedure in the
preliminary investigation is one that should be
addressed to the commission en banc rather than
to either of its divisions.
11. On August 2, 1990, petitioner received a notice setting the
promulgation of judgment en banc for August 6, 1990. Petitioner on
August 3, 1990 filed an objection to the promulgation of judgment en
banc, allegedly because there was no showing that the case was
referred to the commission en banc upon unanimous vote of all the
members of the Second Division.
12. In its aforestated August 7, 1990 resolution which is herein
assailed, the COMELEC en banc dismissed the petition for
disqualification and the criminal complaint for vote buying against
respondent Binay. During the promulgation of judgment, petitioner
asked that the same be suspended until after the resolution of the
legal issues raised involving constitutional and jurisdictional questions.
Commissioner Yorac was likewise requested by petitioner to decide the
motion for her inhibition. In her undated order subject of the petition in
G.R. No. 94521, as stated in limine, Commissioner Yorac denied the
motion for for inhibition, stating that:
During the deliberations on this case, I seriously
considered inhibiting myself from participating and
voting despite the flimsy basis which was cited for
it. But I became convinced, from the information
that was coming in, that the motion was really part
of a numbers game, being played out on the basis
of information emanating from the Commission
itself as to the developments in the deliberation
and the voting. Reliable information also shows
that approaches have been made to influence the
voting.
It is for this reason that I do not inhibit myself from
the voting in this case consistent with my reading
of the law and the evidence.
13. The aforesaid resolution of August 7, 1990 dismissed the petition
for disqualification for lack of merit. The motion for reconsideration
filed by herein petitioner was denied in a resolution dated August 15,
1990, on the ground that "pursuant to Section 1(d), Rule 13 of the
Comelec Rules of Procedure, a motion for reconsideration of an en
banc ruling of the Commission is one of the prohibited pleadings, and
therefore not allowed under the Rules.
Succinctly condensed, the petition filed against respondents COMELEC
and Binay raises the following issues:
1. Contrary to the requirement under Section 2,
Rule 3 of the COMELEC Rules of Procedure, SPC
No. 88-040 was referred to the Comission en
banc without the required unanimous vote of all
the members of the Second Division.
2. The minute resolution of August 15, 1990 is null
and void for having been issued without prior
notice to the parties and without fixing a date for
the promulgation thereof.
3. Respondent commission committed a grave
abuse of discretion amount to lack of jurisdiction in
not finding Binay guilty of vote- buying, contrary to
the evidence presented by petitioner. 7
In G.R. No. 94521, this Court issued on August 16, 1990 a temporary
restraining order 8 ordering respondent Commissioner Yorac to cease
and desist from participating in the deliberation and resolution of the
motion for reconsideration dated August 9, 1990 filed in SPC No. 88-
040, entitled "Oliver O. Lozano, et al. vs. Jejomar Binay." The order was
served in the office of Commissioner Yorac on August 17, 1990 at
11:25 A.M. 9 It appears, however, that the motion for reconsideration
was denied by respondent commission en banc in a resolution dated
August 15, 1990, copy of which was served on petitioner on August 17,
1990 at 12:35 P.M. Consequently, the issue on the inhibition and
disqualification of Commissioner Yorac has been rendered moot and
academic.
Granting arguendo that the petition for inhibition of Commissioner
Yorac has not been mooted by the resolution en banc dismissing the
main case for disqualification, petitioner's postulation that she should
have inhibited herself form hearing the main case, for allegedly having
prejudged the case when she advanced the opinion that respondent
Binay could only be disqualified after conviction by the regional trial
court, is of exiguous validity. In the first place, the COMELEC Rules of
Procedure, specifically Section 1, Rule 4 thereof, prohibits a member
from, among others, sitting in a case in which he has proof. There is no
showing that the memorandum wherein Commissioner Yorac rendered
her opinion was ever made public either by publication or
dissemination of the same to the public. Furthermore, the opinion of
Commissioner Yorac was based on prior cases for disqualification filed
with the COMELEC wherein prior conviction of the respondent was
considered a condition sine qua non for the filing of the disqualification
case. 10 We accordingly find no compelling reason to inhibit
Commissioner Yorac from participating in the hearing and decision of
the case.
Similarly, we find the petition in G.R. No. 94626 devoid of merit.
Petitioner first avers that under Section 2, Rule 3 of the COMELEC Rules
of Procedure, a case pending in a division may be referred to and
decided by the Commission en banc only on a unanimous vote of all
the members of the division. It is contended that SPC No. 88-040 which
was pending before the COMELEC's Second Division was referred to the
Commission en banc without the required unanimous vote of all the
division members, petitioner alleging that Commissioner Andres R.
Flores voted for the referral of the petition for disqualification to the
division. It is, therefore, the submission of petitioner that the resolution
of the Commission en banc dated August 17, 1990 is null and void for
lack of jurisdiction and for being unconstitutional.
The argument of petitioner is not well taken. COMELEC Resolution No.
1050 issued by the commission en banc on November 3, 1988 is the
applicable law in this disqualification case. It provides:
xxx xxx xxx
RESOLVED, as it hereby resolves, to formulate the
following rules governing the disposition of cases
of disqualification filed by virtue of Section 68 of
the Omnibus Election Code in relation to Section 6
of R.A. 6646 otherwise known as the Electoral
Reforms Law of 1987:
1. Any complaint for the disqualification of a duly
registered candidate based upon any of the
grounds specifically enumerated under Section 68
of the Omnibus Election Code, filed directly with
the Commission before an election in which the
respondent is a candidate, shall be inquired into
by the Commission for the purpose of determining
whether the acts complained of have in fact been
committed. Where the inquiry by the Commission
results in a finding before election, that the
respondent candidate did in fact commit the acts
complained (of), 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.
2. Any complaint for disqualification based on
Section 68 of the Omnibus Election Code in
relation to Section 6 of the Rep. Act No. 6646 filed
after the election against a candidate who has
already been proclaimed as winner shall be
dismissed as a disqualification case. However, the
complaint shall be referred for preliminary
investigation to the Law Department of the
Commission.
Where a similar complaint is filed after election but
before proclamation of the respondent candidate,
the complaint shall, nevertheless, be dismissed as
a disqualification case. However, the complaint
shall be referred for preliminary investigation to
the Law Department. If, before proclamation, the
Law Department makes a prima facie finding of
guilt and the corresponding information has been
filed with the appropriate trial court, the
complainant may file a petition for suspension of
the proclamation of the respondent with the court
before which the criminal case is pending and the
said court may order the suspension of the
proclamation if the evidence of guilt is strong.
3. The Law Department shall terminate the
preliminary investigation within thirty (30) days
from receipt of the referral and shall submit its
study, report and recommendation to the
Commission en banc within five (5) days from the
conclusion of the preliminary investigation. If it
makes a prima facie finding of guilt, it shall submit
with such study the information for filing with the
appropriate court. 11
xxx xxx xxx
Contrary to petitioner's submission that said resolution has been
repealed by the COMELEC Rules of Procedure which took effect on
November 15, 1988, there is nothing in the resolution which appears to
be inconsistent with the procedural rules issued by the COMELEC.
Firstly, Resolution No. 2050 was passed by reason of the variance in
opinions of the members of respondent commission on matters of
procedure in dealing with cases of disqualification filed pursuant to
Section 68 of the Omnibus Election Code in relation to Section 6 of
Republic Act No. 6646, or the Electoral Reforms Law of 1987, and the
manner of disposing of the same had not been uniform. Hence, the
COMELEC decided to lay down a definite policy in the disposition of
these disqualification cases. Within this purpose in mind, the
Commission en banc adopted Resolution No. 2050. The transitory
provision under Section 2, Rule 44 of the COMELEC Rules of Procedure
provides that these rules shall govern all cases pending at the time of
effectivity thereof, except to the extent that in the opinion of the
commission, or the court in appropriate cases, an application would not
be feasible or would work injustice, in which event the former
procedure shall apply. We believe that Resolution No. 2050 qualifies
and should be considered as an exception to the generally retroactive
effect of said rules.
Secondly, prior to the issuance of Resolution No. 2050, petitioner had
filed several motions with the Second Division asking for the referral of
the disqualification case to the Commission en banc. After the
COMELEC en banc issued Resolution No. 2050, petitioner filed another
motion for the referral of the case to the Commission en banc,
specifically invoking Resolution No.
2050. 12 In the words of petitioner in his said motion, under the
aforesaid resolution, "once the petition for disqualification is forwarded
to the Law Department, the case is deemed en banc because the
report is submitted En banc by the law Department." Petitioner having
invoked the jurisdiction of the Commission en banc is now estopped
from questioning the same after obtaining an adverse judgment
therefrom.
Thirdly, Commissioner Andres R. Flores, who opined that the
disqualification case should first be resolved by the Second Division,
has since then clarified his position after he was reminded that
Resolution No. 2050, which he had admittedly "completely forgotten"
had "laid down a definite policy on the disposition of disqualification
cases contemplated in Section 68 of the Omnibus Election Code. 13
Lastly, Resolution No. 2050 specifically mandates a definite policy and
procedure for disqualification cases. The COMELEC Rules of Procedure
speak of special actions, which include disqualification cases, in
general. Hence, as between a specific and a general rule, the former
shall necessarily prevail.
Anent the propriety of the issuance of the resolution denying
petitioner's motion for reconsideration, suffice it to say that the
requirement of notice in the promulgation of resolutions and decisions
of the COMELEC embodied in Section 5 of Rule 18 of the Rules does not
apply in the case at bar for the simple reason that a motion for
reconsideration of an en banc ruling, resolution, order or decision is not
allowed under Section 1, Rule 13 thereof.
Respondent COMELEC, in dismissing the petition for disqualification
and in holding that respondent Binay is not guilty of vote buying, ruled
as follows:
xxx xxx xxx
The commission concurs with the findings of the
Law Department on enumeration Nos. 2 and 3 but
rejects exception to the recommendation for
prosecution of respondent Binay under No. 1
therefor, it appearing that there is a clear
misappreciation of the evidence submitted
considering the inconsistencies in the testimonies
of material witnesses for the petitioners, as well as
the correct interpretation and application of the
law cited as basis for the prosecution of
respondent Binay.
xxx xxx xxx
The seventeen (17) Affidavits submitted by
petitioners attached to their original petition for
disqualification dated January 11, 1988, differ form
the twenty (20) affidavits attached to the
memorandum of petitioners filed with the
Commission (Second Division) on August 22, 1988.
The records of the case do not show that these
seventeen (17) affidavits attached to the original
petition were affirmed by the affiants during the
investigation conducted by the Law Department of
this Commission. Of the twenty (20) affidavits
appended to the Memorandum of August 22,
1988, only five (5) of the affiants were able to
affirm their testimonies before hearing officer
Alioden Dalaig of the Law Department of this
Commission . . .
In his counter affidavit, respondent Jejomar C.
Binay denied the allegations in the petition for
disqualification and interposed the defense that:
The Christmas gift-giving is an
annual project of the
Municipal Government of
Makati ever since the time of
Mayors Estrella and Yabut in
the spirit of yuletide season
wherein basic and essential
items are distributed to the
less fortunate and indigent
residents of Makati out of
funds appropriated for the
purpose duly budgeted and
subject to audit by the
Commission on Audit and
same were prepared
sometime on October 1987
long before I filed my
certificate of candidacy and
ceased to be the Acting Mayor
of Makati, . . .
The alleged ticket bearing my
name, assuming its existence,
indicates nothing of
significance except that of a
Christmas and New Year
greeting and is not suggestive
of anything which may be
considered or interpreted to
be political in nature such as
indorsing my candidacy for
that matter. . . .
It is undisputed that at the time the supposed
"gift-giving" transpired between the periods of
December 22-30, 1987, respondent Binay was no
longer Mayor of the Municipality of Makati having
resigned from the position on December 2, 1987,
to pursue his candidacy for re-election to the same
position. The OIC Mayor of Makati on the dates
complained of, December 22-30, 1987, was OIC
Mayor Sergio S. Santos who stated in his affidavit
dated February 4, 1988, that he was Officer-in-
Charge of Makati, Metro Manila, from December 2,
1987 to February 2, 1988, and that as such he
implemented on December 18, 1987 the municipal
government's annual and traditional distribution of
Christmas gifts.
There is ample evidence to show that it was not
respondent Binay who "gave" the plastic bags
containing Christmas gifts to the witnesses who
executed affidavits for the petitioners. The "giver"
was in fact the Municipality of Makati. And this is
evidenced by the following documents attached to
the records of this case:
1) Certification dated January
11, 1988 issued by OIC
Roberto A. Chang attached as
Annex A to respondent Binay's
counter affidavit dated
February 5, 1988.
2) COA Report dated January
11, 1988 attached as Annex
"R" to the pleading
denominated as Motion to Set
Hearing filed by complainant
Oliver Lozano dated July 26,
1988, filed in connection with
SPC No. 88-040 for
disqualification against
respondent Binay;
The findings of the COA Report itself (dated June
21, 1988) upon which petitioners rely heavily in
their disqualifications case against respondent
Binay, identify the "giver" of the Christmas gifts as
the Municipality of Makati and not respondent
Binay. . . .
xxx xxx xxx
Respondent Binay's allegation that the gift-giving
was an annual project of the Municipal
Government of Makati was not denied nor
disputed by the petitioners who in fact made
capital of the aforequoted findings of the
Commission on Audit in their charge against
respondent Binay for alleged misuse of public
funds. Also, petitioners in their latest pleading filed
with the Commission on July 2, 1990, entitled
"Motion To Resolve The Disqualification Case
Jointly With The Investigation Report of the Law
Department" instead of rebutting respondent
Binay's allegation that the Christmas gift giving is
an annual project of the Municipal Government of
Makati ever since the time of Mayors Estrella and
Yabut, merely stated that:
. . . Assuming arguendo that
Mayor Estrella had practiced
this gift-giving every
Christmas, the fact is, that
there had been no electoral
campaign on-going during
such distribution and/or no
election was scheduled during
Mayor Estrella's tenure.
"This is also true in the case of
Mayor Yabut."
More Petitioners' documentary evidence, among
which are Exhibits "A", "A-1"; "A-2"; "A-20";"B"; "B-
1"; "B-2"; "B-25"; "C-1"; "C-2"; "C-27"; "D"; "E" and
"F", all show indubitably that the Christmas
packages which were distributed between the
periods of December 22-30, 1987, were ordered,
purchased and paid for by the Municipality of
Makati and not by respondent Binay. There is more
than prima facie proofs to show that those gift
packages received by the witnesses for petitioners
were intended as Christmas presents to Makati's
indigents in December 1988.
It would therefore appear from the evidence
submitted by the petitioners themselves that the
giver, if any, of the Christmas gifts which were
received by the witnesses for the petitioners was
in fact, the Municipality of Makati and not
respondent Jejomar C. Binay. The presence of
respondent Binay, if at all true at the time the gifts
were distributed by the Municipality of Makati to
the recipients of the Christmas gifts, was
incidental. It did not make respondent Binay as the
"giver" of those Christmas gifts. Nor did the giving
of such gifts by the Municipal Government of
Makati influence the recipients to vote for
respondent Binay considering that the affiants
themselves who testified for the petitioners
admitted and were aware that the gift packages
came from the Municipality of Makati and not from
respondent Jejomar C. Binay.
The foregoing conclusion is confirmed by
petitioners' witnesses in the persons of Lolita
Azcarraga, Johnson Carillo, Rommel Capalungan,
Renato Leonardo, Manuel Allado, Edwin Pascua,
Wilberto Torres, Apolonio De Jesus, Caridad
Reposar, Artemus Runtal and Jose Ermino who, in
their sworn statements, uniformly described the
gift package as labelled with the words
"Pamaskong Handog ng Makati", a clear indication
that the "giver" of the Christmas gifts was indeed
the Municipality of Makati and not respondent
Binay.
There is one aspect of this case which somehow
lends credence to respondent Binay's claim that
the instant petition is a political harassment. It is
noted by the commission that while the criminal
indictment against respondent Binay is for alleged
violation of Section 261 (a) of the Omnibus
Election Code, petitioners did not implead as party
respondents the affiants who received the
Christmas packages apparently in exchange for
their votes. The law on "vote buying" [Section 261
(a) supra] also penalizes "vote-buying" and "vote-
selling", then the present indictment should have
been pursued against both respondent Binay and
against the affiants, against the former for buying
votes and against the latter for selling the
votes. 14
We uphold the foregoing factual findings, as well as the conclusions
reached by respondent COMELEC, in dismissing the petition for the
disqualification of respondent Binay. No clear and convincing proof
exists to show that respondent Binay was indeed engaged in vote
buying. The traditional gift-giving of the Municipality of Makati during
the Christmas season is not refuted. That it was implemented by
respondent Binay as OIC Mayor of Makati at that time does not
sufficiently establish that respondent was trying to influence and
induce his constituents to vote for him. This would be stretching the
interpretation of the law too far. Petitioner deduces from this act of gift-
giving that respondent was buying the votes of the Makati residents. It
requires more than a mere tenuous deduction to prove the offense of
vote-buying. There has to be concrete and direct evidence or, at least,
strong circumstantial evidence to support the charge that respondent
was indeed engaged in vote-buying. We are convinced that the
evidence presented, as swell as the facts obtaining in the case at bar,
do not warrant such finding.
Finally, we have consistently held that under the 1935 and 1973
Constitutions, and the same is true under the present one, this court
cannot review the factual findings of the Commission on Elections
absent a grave abuse of discretion and a showing of arbitratriness in its
decision, order or resolution. Thus:
The principal relief sought by petitioner is
predicated on the certiorari jurisdication of this
court as provided in Section 11, Article XII-C, 1973
Constitution. It is, as explained in Aratuc vs.
Commission on Elections, "not as broad as it used
to be" under the old Constitution and it "should be
confined 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 office
of certiorari as distinguished from review." 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 can not . . . review rulings or findings of fact
of the Commission on Elections," as there is "no
reason to believe that the framers of 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 findings are not "disturbed by
courts of justice, except when there is absolutely
no evidence or no substantial evidence in support
of such findings.") Factual matters were deemed
not proper for consideration in proceedings
brought either "as an original action
for certiorari or as an appeal by 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 improvement 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 qualifications
"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 the late justice Jose P. Laurel, "was
intended to be as complete and unimpaired as if it
had remained originally in the legislature . . . " . . .
. . . A review of the respondent Commission's
factual findings/conclusions made on the basis of
the evidence evaluated is urged by the petitioner,
"if only to guard against or prevent any possible
misuse or abuse of power." To do so would mean
"digging into the merits and unearthing errors of
judgment" rendered on matters within the
exclusive function of the Commission, which is
proscribed by the Aratuc and other decisions of
this Court. . . . 15
The charge against respondent Binay for alleged malversation of public
funds should be threshed out and adjudicated in the appropriate
proceeding and forum having jurisdiction over the same. Consequently,
it was properly dismissed by the Commission on Elections.
WHEREFORE, the questioned order of respondent Commissioner
Haydee B. Yorac in G.R. No. 94521 and the challenged resolutions of
respondent Commission on Elections subject of the petition in G.R. No.
94626 are hereby AFFIRMED. The temporary restraining order issued in
G.R. No. 94521 is hereby LIFTED and SET ASIDE.
SO ORDERED.
G.R. No. 115962 February 15, 2000
DOMINADOR REGALADO, JR., vs. COURT OF APPEALS and
PEOPLE OF THE PHILIPPINES, respondents.
MENDOZA, J.:
This is a petition for review on certiorari of the decision1 of the Court of
Appeal affirming the ruling of the Regional Trial Court, Branch 38,
Negros Oriental, which found petitioner Dominador Regalado, Jr. guilty
of violating 261(h) of the Batas Pambansa Blg. 881 (Omnibus Election
Code), as amended.2
The Information against petitioner alleged:
That on or about January 25, 1988, at Tanjay, Negros
Oriental, Philippines, and within the jurisdiction of this
Honorable Court, said accused DOMINADOR S. REGALADO,
JR., [as] OIC Mayor of the Municipality of Tanjay, Negros
Oriental, did then and there unlawfully, feloniously and
illegally TRANSFER one MRS. EDITHA P. BARBA, a permanent
Nursing Attendant, Grade I, in the Office of the [M]ayor of
Tanjay, from her permanent assignment to a very remote
Barangay of Sto. Nio during the election period and without
obtaining prior permission or clearance from the Commission
on Elections, Manila.
The evidence for the prosecution shows that on January 15, 1987,
complainant Editha Barba was appointed nursing attendant in the
Rural Health Office of Tanjay, Negros Oriental by then Officer-In-Charge
Mayor Rodolfo Navarro.3 Although she was detailed at, and received
her salary from, the Office of the Mayor, she reported for work at the
Puriculture Center, Poblacion, Tanjay. As Navarro decided to run for
mayor of Tanjay in the January 18, 1988 elections, petitioner
Dominador Regalado, Jr. was appointed substitute OIC-Mayor. His
brother, Arturo S. Regalado, was also a mayoralty candidate.
Petitioner's brother won in the elections. Four days later, on January
22, 1988, petitioner, still sitting as OIC-Mayor, issued a memorandum
to Barba informing her that effective January 25, 1988, she would be
reassigned from Poblacion, Tanjay to Barangay Sto. Nio, 4 about 25
kilometers from Poblacion.5 The transfer was made without the prior
approval of the Commission on Elections (COMELEC). Barba continued
to report at the Puriculture Center, Poblacion, Tanjay, however. Hence,
on February 18, 1988, petitioner issued another memorandum to Barba
directing her to explain, within 72 hours, why she refuses to comply
with the memorandum of January 22, 1988.6
In response, Barba, on February 21, 1988, sent a letter to petitioner
protesting her transfer which she contended was illegal. 7 She then
filed, on February 16, 1988, a complaint8 against petitioner for violation
of 261(h) of the Omnibus Election Code, as amended, and after
preliminary investigation, the Provincial Election Officer of Negros
Oriental, Atty. Gerardo Lituanas, charged petitioner before the Regional
Trial Court, Branch 38, Negros Oriental.1wphi1.nt
On September 27, 1991, the lower court rendered a decision, the
dispositive portion of which states:9
Finding the accused guilty beyond reasonable doubt of a
violation of Section 261, paragraph (h), of the Omnibus
Election Code, the accused Dominador S. Regalado, Jr., is
sentenced to undergo imprisonment for an indeterminate
period ranging from one (1) year minimum to three (3) years
maximum without the benefit of probation and to suffer
disqualification to hold public office and deprivation of the
right of suffrage. He is further sentenced to indemnify the
offended party, Editha P. Barba, as civil liability arising from
the offense charged[,] in the sum of Five Hundred (P500.00)
Pesos . . . . for moral damages.
As petitioner's motion for reconsideration was denied, 10 he elevated
the matter to the Court of Appeals, which, on February 3, 1994,
affirmed the lower court's decision. He moved for a reconsideration,
but his motion was likewise denied, hence this appeal.
Petitioner alleges that
I.THE PUBLIC RESPONDENT FAILED TO CONSIDER THE
ORGANIZATIONAL STRUCTURE OF THE RURAL HEALTH UNIT
OF THE MUNICIPALITY OF TANJAY, NEGROS ORIENTAL, VIZ-A-
VIZ, THE LETTERS OF APPOINTMENT OF PRIVATE
RESPONDENT.
II.THE MEMORANDUM DID NOT EFFECT A TRANSFER, BUT
MERELY A "RE-ASSIGNMENT" OF PRIVATE RESPONDENT.
III.EXIGENCIES OF SERVICE WERE NOT ACCOUNTED FOR.11
Petitioner's contentions have no merit.
First. The two elements of the offense prescribed under 261(h) of the
Omnibus Election Code, as amended, are: (1) a public officer or
employee is transferred or detailed within the election period as fixed
by the COMELEC, and (2) the transfer or detail was effected without
prior approval of the COMELEC in accordance with its implementing
rules and regulations.12
The implementing rule involved is COMELEC Resolution No.
1937,13 which pertinently provides:
Sec. 1.Prohibited Acts.
Effective November 19, 1987 up to February 17, 1988, no
public official shall make or cause any transfer or detail
whatsoever of any officer or employee in the Civil Service,
including public school teachers, except upon prior approval
of the Commission.
Sec. 2. Request for authority of the Commission. Any
request for . . . . approval to make or cause any transfer or
detail must be submitted in writing to the Commission
stating all the necessary data and reason for the same which
must satisfy the Commission that the position is essential to
the proper functioning of the office or agency concerned,
and that the . . . . filling thereof shall not in any manner
influence the election.
Petitioner admits that he issued the January 22, 1988 memorandum
within the election period set in Resolution No. 1937 without the prior
approval of the COMELEC. He contends, however, that he did not
violate 261(h) because he merely effected a "re-assignment" and not
a "transfer" of personnel by moving Barba from one unit or place of
designation (Poblacion, Tanjay) to another (Sto. Nio, Tanjay) of the
same office, namely, the Rural Health Office of Tanjay, Negros
Oriental.14 In support of his contention, he relies upon the following
portions of 24 of P.D. No. 807 (Civil Service Law): 15
(c) Transfer a movement from one position to another
which is of equivalent rank, level, or salary without break of
service involving the issuance of an appointment.
(g) Reassignment an employee may be reassigned from
one organizational unit to another in the same
agency. Provided, that such reassignment shall not involve a
reduction in rank, status, or salary.
Petitioner, however, ignores the rest of 24(c) which provides that:
[A transfer] shall not be considered disciplinary when made
in the interest of the public service, in which case, the
employee concerned shall be informed of the reasons
therefor. If the employee believes that there is no
justification for the transfer, he may appeal his case to the
Commission.
The transfer may be from one department or agency to
another or from one organizational unit to another in the
same department or agency: Provided, however, That any
movement from the non-career service to the career service
shall not be considered a transfer. (Emphasis added).
Thus, contrary to petitioner's claim, a transfer under 24(c) of P.D. No.
807 in fact includes personnel movement from one organizational unit
to another in the same department or agency.
Moreover, 261(h) of B.P. No. 881, as amended, provides that it is an
election offense for
Any public official who makes or causes any transfer or
detail whatever of any officer or employee in the civil service
including public school teachers, within the election period
except upon prior approval of the Commission. (Emphasis
added).
As the Solicitor General notes, "the word transfer or detail, as used
[above], is modified by the word whatever. This indicates
that any movement of personnel from one station to another, whether
or not in the same office or agency, during the election is covered by
the prohibition."16
Finally, the memorandum itself issued by petitioner to Barba on
January 22, 1988 stated that the latter was being "transferred," thus: 17
Effective Monday, January 25, 1988, your assignment as
Nursing Attendant will be transferred from RHU I Tanjay
Poblacion to Barangay Sto. Nio, this Municipality.
You are hereby directed to perform the duties and functions
as such immediately in that area.
For strict compliance.(Emphasis added)
Second. Petitioner next contends that his order to transfer Barba to
Barangay Sto. Nio was prompted by the lack of health service
personnel therein and that this, in effect, constitutes sufficient
justification for his non-compliance with 261(h).18
The contention has no merit.
It may well be that Barangay Sto. Nio in January 1988 was in need of
health service personnel. Nonetheless, this fact will not excuse the
failure of petitioner to obtain prior approval from the COMELEC for the
movement of personnel in his office.
Indeed, appointing authorities can transfer or detail personnel as the
exigencies of public service require. 19However, during election period,
as such personnel movement could be used for electioneering or even
to harass subordinates who are of different political persuasion,
261(h) of the Omnibus Election Code, as amended, prohibits the same
unless approved by the COMELEC.
Third. The award of P500,000.00 as moral damages to Barba must be
deleted. Under 264, par. 1 of the Omnibus Election Code, as amended,
the only imposable penalties for the commission of any of the election
offenses thereunder by an individual are
imprisonment of not less than one year but not more than
six years [which] shall not be subject to probation. In
addition, the guilty party shall be sentenced to suffer
disqualification to hold public office and deprivation of the
right of suffrage.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the
MODIFICATION that the award of moral damages is deleted.
SO ORDERED.
G.R. No. 172840 June 7, 2007
NELSON T. LLUZ and CATALINO C. ALDEOSA, petitioners, vs.
COMMISSION ON ELECTIONS and CAESAR O.
VICENCIO, respondents.
CARPIO, J.:
The Case
This petition for certiorari1 seeks to annul the Resolutions of the
Commission on Elections (COMELEC) En Banc dated 1 February 2006
and 25 May 2006 in E.O. Case No. 04-5. The 1 February 2006 resolution
ruled that no probable cause exists to charge private respondent
Caesar O. Vicencio with violation of Section 262 in relation to Section
74 of Batas Pambansa Blg. 881 (B.P. 881), otherwise known as the
Omnibus Election Code. The 25 May 2006 resolution denied petitioners
Nelson T. Lluz and Catalino C. Aldeosas motion for reconsideration of
the 1 February 2006 resolution.
The Facts
Private respondent was a candidate for the post of punong barangay of
Barangay 2, Poblacion, Catubig, Samar in the 15 July 2002
Synchronized Barangay and Sangguniang Kabataan Elections. In his
certificate of candidacy, private respondent stated his profession or
occupation as a certified public accountant (CPA). Private respondent
won in the elections.
Sometime after private respondents proclamation, petitioners charged
him before the Law Department of the COMELEC (Law Department)
with violation of Section 262 in relation to Section 74 of B.P. 881.
Petitioners claimed they had proof that private respondent
misrepresented himself as a CPA. Attached to petitioners complaint
was a Certification signed by Jose Ariola, Director II, Regulations Office
of the Professional Regulation Commission (PRC), stating that private
respondents name does not appear in the book of the Board of
Accountancy. The book contains the names of those duly authorized to
practice accountancy in the Philippines.
In his Answer, private respondent maintained that he was a CPA and
alleged that he passed the CPA Board Examinations in 1993 with a
rating of 76%. Private respondent argued that he could not be held
liable for an election offense because his alleged misrepresentation of
profession was not material to his eligibility as a candidate.
On 21 September 2004, the Law Department through its Director
Alioden D. Dalaig issued a subpoena requiring the Chief of the PRCs
Records Section to appear before it and settle the controversy on
whether private respondent was indeed a CPA. On 6 October 2004, PRC
Records Section Officer-in-Charge Emma T. Francisco appeared before
the Law Department and produced a Certification showing that private
respondent had taken the 3 October 1993 CPA Board Examinations and
obtained a failing mark of 40.71%.
Nevertheless, the Law Department recommended the dismissal of
petitioners complaint. Citing the rulings of this Court in Romualdez-
Marcos v. COMELEC2 and Salcedo II v. COMELEC,3 the Law Department
held that the misrepresentation in private respondents certificate of
candidacy was not material to his eligibility as a candidate and could
not be a ground for his prosecution.
However, upon motion of petitioners, the COMELEC En Banc by
Resolution dated 5 October 2005 ordered the Law Department to file
an information against private respondent for violation of Section 262
in relation to Section 74 of B.P. 881. In reversing the resolution of the
Law Department, the COMELEC En Banc ruled that Romualdez-
Marcos and Salcedo were disqualification cases not applicable to the
case of private respondent who is sought to be prosecuted for an
election offense. As such, the misrepresentation made by private
respondent need not be material to his eligibility as a candidate in
order to hold him liable under Section 262. The COMELEC En
Banc further ruled that election offenses are mala prohibita, in which
case no proof of criminal intent is required and good faith, ignorance,
or lack of malice are not valid defenses.
On 18 October 2005, private respondent moved for reconsideration.
The Ruling of the COMELEC
On 1 February 2006, the COMELEC En Banc reconsidered its earlier
Resolution, explaining thus:
After a careful evaluation x x x [w]e rule to grant the motion for
reconsideration.
Criminal intent is not absolutely disregarded in election offense cases.
A good example is the provision of Section 261(y)(17) of [B.P. 881],
which requires malicious intent in order that a person may be charged
for omitting, tampering, or transferring to another list the name of a
registered voter from the official list of voters posted outside the
polling place.
In relation thereto, the fact that an offense is malum prohibitum does
not exempt the same from the coverage of the general principles of
criminal law. In this case, the provisions of Section 261 of [B.P. 881]
must not be taken independent of the concepts and theories of
criminal law.
The offense allegedly committed by the respondent is for failure to
disclose his true occupation as required under Section 74 of [B.P. 881].
Apparently, respondent misrepresented himself as a CPA when in fact
he is not. The misrepresentation having been established, the
next issue posited by the parties is whether or not the
misrepresentation should be material before it can be
considered as an election offense.
We answer in the affirmative. Violation of Section 74 is a species of
perjury, which is the act of knowingly making untruthful statements
under oath. Settled is the rule that for perjury to be committed, it must
be made with regard to a material matter.
Clearly, the principle of materiality remains to be a crucial test in
determining whether a person can be charged with violating Section 74
of [B.P. 881] in relation to Section 262 thereof.
The case of [Salcedo] sheds light as to what matters are deemed
material with respect to the certificate of candidacy, to wit: citizenship,
residency and other qualifications that may be imposed. The nature of
a candidates occupation is definitely not a material matter. To be sure,
we do not elect a candidate on the basis of his occupation.4
Petitioners filed a motion for reconsideration, which the COMELEC En
Banc denied in the assailed Resolution dated 25 May 2006. The
COMELEC declared that while it "condemn[ed] in the strongest possible
terms" private respondents "morally appalling, devious, calculating,
[and] deceitful" act, it could not prosecute private respondent for an
election offense, but possibly only for an administrative or criminal
offense.
Hence, this petition.
The Issues
Petitioners argue that:
1. The assailed resolutions failed to consider that a violation
of Section 262 in relation to Section 74 of B.P. 881 is malum
prohibitum;
2. The ruling in Salcedo is not applicable to petitioners
complaint, that is, a fact misrepresented in a certificate of
candidacy need not be material in order to constitute a
violation of Section 262 in relation to Section 74 of B.P. 881;
and
3. Assuming arguendo that materiality of a surplusage in the sense of adding nothing to the law or having no
misrepresentation is required to constitute a violation of
Section 262 in relation to Section 74 of B.P. 881, the assailed
resolutions should have
held material private respondents misrepresentation because it
increased his chances of winning in the elections.
The Ruling of the Court
Petitioners come to us on a single question of law: is an alleged
misrepresentation of profession or occupation on a certificate of
candidacy punishable as an election offense under Section 262 in
relation to Section 74 of B.P. 881?
We rule in the negative.
In urging the Court to order the COMELEC to file the necessary
information against private respondent, petitioners invoke Sections
262 and 74 of B.P. 881, which we reproduce below:
Section 262. Other election offenses.Violation of the provisions,
or pertinent portions, of the following sections of this Code
shall constitute election offenses: Sections 9, 18, 74, 75, 76, 80,
81, 82, 83, 84, 85, 86, 87, 88, 89, 95, 96, 97, 98, 99, 100, 101, 102,
103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 122, 123, 127, 128,
129, 132, 134, 135, 145, 148, 150, 152, 172, 173, 174, 178, 180, 182,
184, 185, 186, 189, 190, 191, 192, 194, 195, 196, 197, 198, 202, 203,
204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217,
218, 219, 220, 223, 229, 230, 231, 233, 234, 235, 236, 239 and 240.
(Emphasis supplied)
Section 74. Contents of certificate of candidacy.The certificate of
candidacy shall state that the person filing it is announcing his
candidacy for the office stated therein and that he is eligible for said
office; if for Member of the Batasang Pambansa, the province, including
its component cities, highly urbanized city or district or sector which he
seeks to represent; the political party to which he belongs; civil status;
his date of birth; residence; his post office address for all election
purposes; his profession or occupation; that he will support and
defend the Constitution of the Philippines and will maintain true faith
and allegiance thereto; that he will obey the laws, legal orders, and
decrees promulgated by the duly constituted authorities; that he is not
a permanent resident or immigrant to a foreign country; that the
obligation imposed by his oath is assumed voluntarily, without mental
reservation or purpose of evasion; and that the facts stated in the
certificate of candidacy are true to the best of his knowledge.
Unless a candidate has officially changed his name through a court
approved proceeding, a candidate shall use in a certificate of
candidacy the name by which he has been baptized, or he has not
been baptized in any church or religion, the name registered in the
office of the local civil registrar or any other name allowed under the
provisions of existing law or, in the case [of] a Muslim, his Hadji name
after performing the prescribed religious pilgrimage: Provided, That
when there are two or more candidates for an office with the same
name and surname, each candidate, upon being made aware or such
fact, shall state his paternal and maternal surname, except the
incumbent who may continue to use the name and surname stated in
his certificate of candidacy when he was elected. He may also include
one nickname or stage name by which he is generally or popularly
known in the locality.
The person filing a certificate of candidacy shall also affix his latest
photograph, passport size; a statement in duplicate containing his bio-
data and program of government not exceeding one hundred words, if
he so desires. (Emphasis supplied)
The penal coverage of Section 262 is limited.
From a cursory reading of Sections 262 and 74 of B.P. 881, one may
possibly conclude that an act or omission in violation of any of the
provisions of Section 74 ipso facto constitutes an election offense.
Indeed, petitioners point out that private respondents
misrepresentation of profession having been proved before the
COMELEC, the latter is compelled to prosecute him for violation of
Section 262. Petitioners argue that such a violation being an election
offense, it is malum prohibitum and immediately gives rise to criminal
liability upon proof of commission.
Petitioners stance assumes that Section 262 penalizes without
qualification the violation of the sections it enumerates. This
assumption is uncalled for in view of the wording of Section 262.
The listing of sections in Section 262 is introduced by the clause:
"Violation of the provisions, or pertinent portions, of the following
sections shall constitute election offenses: x x x." The phraseology of
this introductory clause alerts us that Section 262 itself possibly limits
its coverage to only pertinent portions of Section 74. That such a
possibility exists must not be taken lightly for two reasons. First, were
the phrase not necessary, the laws framers would have instead
directly declared that violation of "the provisions" or "any provision" of
the enumerated sections without any qualification would
constitute an election offense. It is a settled principle in statutory
construction that whenever possible, a legal provision, phrase, or word
must not be so construed as to be meaningless and a useless
effect on it.5Second, equally well-settled is the rule that a statute
imposing criminal liability should be construed narrowly in its coverage
such that only those offenses clearly included, beyond reasonable
doubt, will be considered within the operation of the statute. 6 A return
to Section 74 is thus imperative.
Section 74 enumerates all information which a person running for
public office must supply the COMELEC in a sworn certificate of
candidacy. Section 74 specifies that a certificate of candidacy shall
contain, among others, a statement that the person is announcing his
or her candidacy for the office and is eligible for such office, the unit of
government which the person seeks to represent, his or her political
party, civil status, date of birth, residence, and profession or
occupation. Section 74 further requires that the person make several
declarations: "that he will support and defend the Constitution of the
Philippines and will maintain true faith and allegiance" to it, "that he
will obey the laws, legal orders, and decrees promulgated by the duly
constituted authorities," "that he is not a permanent resident or
immigrant to a foreign country," "that the obligation imposed by his
oath is assumed voluntarily," and "that the facts stated in the
certificate of candidacy are true to the best of his knowledge."
Section 74 does not expressly mention which portion in its provisions is
pertinent to Section 262, or which among its provisions when violated
is punishable as an election offense. Nothing in Section 74 partakes
unmistakably of a penal clause or a positive prohibition comparable to
those found in other sections 7 also mentioned in Section 262 that use
the words "shall not." The Court is then left to interpret the meaning of
Section 74 to determine which of its provisions are penalized under
Section 262, and particularly if disclosure of profession or occupation is
among such provisions.
Our rulings in Abella v. Larrazabal and Salcedo clarify the
concept of misrepresentation under B.P. 881.
The issue in this case is novel, yet the facts and provisions of law now
before us call to mind the cases of Abella v. Larrazabal8 and Salcedo,
perhaps the closest this case has to a relevant precedent.
Abella dwelt on the issue of misrepresentation of residence in a
certificate of candidacy. Petitioner Abella had filed a case against
private respondent Larrazabal before the COMELEC on the ground that
the latter falsely claimed to be a resident of Kananga, Leyte in her
certificate of candidacy. In the course of the hearing, Larrazabal moved
for clarification of the nature of the proceedings, asking the COMELEC
to determine under what law her qualifications were being challenged.
The COMELEC, by process of elimination, determined that the
proceeding was not (1) intended against a nuisance candidate under
Section 69 of B.P. 881, as Larrazabal was obviously a bona fide
candidate; (2) a petition for quo warranto under Section 253 which
could be filed only after Larrazabals proclamation, as Larrazabal had
not yet been proclaimed; (3) a petition to deny due course to
Larrazabals certificate of candidacy under Section 78, as Abellas
petition did not contain such prayer and was not filed in the manner
required by the COMELEC Rules of Procedure; or (4) a petition for
disqualification under Section 68, as Larrazabal was not being charged
with the commission of any election offense mentioned under the
section. The COMELEC concluded that "the subject of the petition, to
wit, misrepresentation in the certificate of candidacy, was actually a
violation of Section 74" and must be prosecuted as an election offense
under Section 262. The COMELEC dismissed the petition and referred
the case to its Law Department for prosecution.
We held that the dismissal was improper. There we reasoned that the
issue of residence having been squarely raised before the COMELEC
from the mayoralty race in Sara, Iloilo on the basis of the use of her
surname. Petitioner alleged that Emelitas marriage to Neptali Salcedo
(Neptali) was void and therefore Emelitas use of Neptalis surname
constituted a material misrepresentation. The COMELEC ruled in favor
of Emelita, finding that she committed no misrepresentation. On
appeal by petitioner, the Court held:
In case there is a material misrepresentation in the certificate of
candidacy, the Comelec is authorized to deny due course to or cancel
such certificate upon the filing of a petition by any person pursuant to
Section 78 x x x.
As stated in the law, in order to justify the cancellation of the
certificate of candidacy under Section 78, it is essential that
the false representation mentioned therein pertain[s] to a
material matter for the sanction imposed by this provision
would affect the substantive rights of a candidate the right
to run for the elective post for which he filed the certificate of
candidacy. Although the law does not specify what would be
considered as a "material representation," the Court has interpreted
this phrase in a line of decisions applying Section 78 of [B.P. 881].
Therefore, it may be concluded that the material
misrepresentation contemplated by Section 78 of the Code
refer[s] to qualifications for elective office. This conclusion is
strengthened by the fact that the consequences imposed upon
a candidate guilty of having made a false representation in
[the] certificate of candidacy are grave to prevent the
candidate from running or, if elected, from serving, or to
prosecute him for violation of the election laws. It could not have
been the intention of the law to deprive a person of such a basic and
substantive political right to be voted for a public office upon just any
innocuous mistake.
Aside from the requirement of materiality, a false representation under
Section 78 must consist of a "deliberate attempt to mislead, misinform,
or hide a fact which would otherwise render a candidate ineligible." In
other words, it must be made with an intention to deceive the
electorate as to ones qualifications for public office. x x x 11(Emphasis
supplied)
From these two cases several conclusions follow. First, a
misrepresentation in a certificate of candidacy is material when it
refers to a qualification for elective office and affects the candidates
eligibility. Second, when a candidate commits a material
misrepresentation, he or she may be proceeded against through a
petition to deny due course to or cancel a certificate of candidacy
under Section 78, or through criminal prosecution under Section 262
for violation of Section 74. Third, a misrepresentation of a non-material
fact, or a non-material misrepresentation, is not a ground to deny due
course to or cancel a certificate of candidacy under Section 78. In other
words, for a candidates certificate of candidacy to be denied due
course or canceled by the COMELEC, the fact misrepresented must
pertain to a qualification for the office sought by the candidate.

x x x it should not have been shunted aside to the Law Department for
a roundabout investigation of [Larrazabals] qualification through the
filing of a criminal prosecution, if found to be warranted, with resultant
disqualification of the accused in case of conviction. The COMELEC
should have opted for a more direct and speedy process available
under the law, considering the vital public interest involved and the
necessity of resolving the question at the earliest possible time for the
benefit of the inhabitants of Leyte.9
By "direct and speedy process," the Court referred to Section 78 of B.P.
881, which states:
Profession or occupation is not a qualification for elective
office, and therefore not a material fact in a certificate of
candidacy.
No elective office, not even the office of the President of the Republic
of the Philippines, requires a certain profession or occupation as a
qualification. For local elective offices including that of punong
barangay, Republic Act No. 7160 (R.A. 7160) or the Local Government
Code of 1991 prescribes only qualifications pertaining to citizenship,
registration as a voter, residence, and language. Section 39 of R.A.
7160 states:

Section 78. Petition to deny due course to or cancel a certificate of
candidacy. A verified petition seeking to deny due course or to cancel
a certificate of candidacy may be filed by the person exclusively on
the ground that any material representation contained therein
as required under Section 74 hereof is false. The petition may be
filed at any time not later than twenty-five days from the time of the
filing of the certificate of candidacy and shall be decided, after due
notice and hearing, not later than fifteen days before the election.
(Emphasis supplied)
Section 39. Qualifications.
(a) An elective local official must be a citizen of the Philippines; a
registered voter in the barangay, municipality, city, or province or, in
the case of a member of the sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan, the district where he intends to be
elected; a resident therein for at least one (1) year immediately
preceding the day of the election; and able to read and write Filipino or
any other local language or dialect.

Thus, upon considering the facts and seeing that Larrazabals

misrepresentation of her residence put her qualification as a candidate
at issue,10 the Court found that the case fell squarely within the
provisions of Section 78 and directed the COMELEC to determine the
residence qualification of Larrazabal. Notably, the Court did not make a
finding that Abella had no cause of action under Section 262, but only
characterized the criminal case as involving a "roundabout
investigation" seeking an end Larrazabals disqualification that
could be achieved more speedily through an administrative proceeding
under Section 78. The ruling in Abella recognized that Larrazabals act
of misrepresenting her residence, a fact required to be stated in her
certificate of candidacy under Section 74 and which was also a
qualification for all elective local officials, gave rise to two causes of
action against her under B.P. 881: one, a criminal complaint under
Section 262; and second, a petition to deny due course to or cancel a
certificate of candidacy under Section 78.
The case of Salcedo six years after Abella tested the limits of Section
78 on the specific question of what constitutes a material
misrepresentation. In Salcedo, petitioner Victorino Salcedo prayed for
the disqualification of private respondent Emelita Salcedo (Emelita)
Profession or occupation not being a qualification for elective office,
misrepresentation of such does not constitute a material
misrepresentation. Certainly, in a situation where a candidate
misrepresents his or her profession or occupation in the certificate of
candidacy, the candidate may not be disqualified from running for
office under Section 78 as his or her certificate of candidacy cannot be
denied due course or canceled on such ground.
In interpreting a law, the Court must avoid an unreasonable or
unjust construction.
Were we to follow petitioners line of thought, for misrepresentation of
a non-material fact, private respondent could be prosecuted for an
election offense and, if found guilty, penalized with imprisonment and
other accessory penalties. B.P. 881 prescribes a uniform penalty for all
election offenses under it to cover those defined in Sections 262 and
261, to wit:
Section 264. Penalties. Any person found guilty of any election
offense under this Code shall be punished with imprisonment of not
less than one year but not more than six years and shall not be subject
to probation. In addition, the guilty party shall be sentenced to suffer
disqualification to hold public office and deprivation of the right of
suffrage. If he is a foreigner, he shall be sentenced to deportation
which shall be enforced after the prison term has been served. Any
political party found guilty shall be sentenced to pay a fine of not less
than ten thousand pesos, which shall be imposed upon such party after
criminal action has been instituted in which their corresponding
officials have been found guilty.
The position taken by petitioners merely highlights for us the absurdity
of not applying here the reasons given by the Court in Salcedo, a mere
disqualification case. In the present case, private respondent not only
could be disqualified from holding public office and from voting but
could also be deprived of his liberty were the COMELEC to pursue a
criminal case against him. If in Salcedo the Court could not conceive
the law to have intended that a person be deprived "of such a basic
and substantive political right to be voted for a public office upon just
any innocuous mistake" on the certificate of candidacy, weightier
considerations here demand that materiality of the misrepresentation
also be held an essential element of any violation of Section 74.
Otherwise, every detail or piece of information within the four corners
of the certificate of candidacy, even that which has no actual bearing
upon the candidates eligibility, could be used as basis for the
candidates criminal prosecution.
Further compelling us to dismiss this petition is the consideration that
any complaint against private respondent for perjury under the Revised
Penal Code would necessarily have to allege the element of materiality.
The pertinent section of the Revised Penal Code states:
Art. 183. False testimony in other cases and perjury in solemn
affirmation. The penalty of arresto mayor in its maximum period
to prision correccional in its minimum period shall be imposed upon
any person who, knowingly making untruthful statements and not
being included in the provision of the next preceding articles, shall
testify under oath, or make an affidavit, upon any material
matter before a competent person authorized to administer an oath in
cases in which the law so requires. (Emphasis supplied)
The basis of the crime of perjury is the willful assertion of a falsehood
under oath upon a material matter. Although the term "material
matter" under Article 183 takes on a fairly general meaning, that is, it
refers to the main fact which is the subject of inquiry, 12 in terms of
being an element in the execution of a statement under oath it must
be understood as referring to a fact which has an effect on the
outcome of the proceeding for which the statement is being
executed.13 Thus, in the case of a certificate of candidacy, a material
matter is a fact relevant to the validity of the certificate and which
could serve as basis to grant or deny due course to the certificate in
case it is assailed under Section 78. Of course, such material matter
would then refer only to the qualifications for elective office required to
be stated in the certificate of candidacy.
Perjury under Article 183 of the Revised Penal Code carries the penalty
of arresto mayor in its maximum period to prision correccional in its
minimum period and translates to imprisonment for four months and
one day up to two years and four months. The duration of this
imprisonment is a far cry from that meted by Section 264 of B.P. 881,
which is a minimum of one year up to a maximum of six years. With
the gravity of the punishment provided by B.P. 881 for violation of
election offenses, we glean the intention of the law to limit culpability
under Section 262 for violation of Section 74 only to a material
misrepresentation. We thus adhere to the more reasonable
construction of the term "pertinent portions" found in Section 262, in
particular reference to Section 74, to mean only those portions of
Section 74 which prescribe qualification requirements of a candidate.
WHEREFORE, we DISMISS the petition. We AFFIRM the En
Banc Resolutions of the Commission on Elections dated 1 February
2006 and 25 May 2006.
SO ORDERED.