February 2010 Philippine Supreme Court

Decisions on Political Law

Posted on March 5, 2010 by Hector M. de Leon Jr. • Posted in Constitutional Law • Tagged Civil
Service Commission, COMELEC, election contest, eminent domain, equal protection, evidence,
expropriation, HRET, immunity from suit, judicial review, public officers

Here are selected February 2010 rulings of the Supreme Court of the Philippines on political law:

Constitutional Law

Equal protection; requisites. The equal protection clause does not require the universal
application of the laws to all persons or things without distinction. What it simply requires is
equality among equals as determined according to a valid classification. The test developed by
jurisprudence here and yonder is that of reasonableness, which has four requisites:

(1) The classification rests on substantial distinctions;

(2) It is germane to the purposes of the law;

(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class.

The assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the
first, third and fourth requisites of reasonableness. It, however, proffers the dubious conclusion
that the differential treatment of appointive officials vis-à-vis elected officials is not germane to
the purpose of the law. Eleazar P. Quinto and Gerino A. Tolentino, Jr. vs. Commission on
Elections, G.R. No. 189698, February 22, 2010.

Expropriation; private use. It is well settled that the taking of private property by the
Government’s power of eminent domain is subject to two mandatory requirements: (1) that it is
for a particular public purpose; and (2) that just compensation be paid to the property owner.
These requirements partake of the nature of implied conditions that should be complied with to
enable the condemnor to keep the property expropriated.

More particularly, with respect to the element of public use, the expropriator should commit to
use the property pursuant to the purpose stated in the petition for expropriation filed, failing
which, it should file another petition for the new purpose. If not, it is then incumbent upon the
expropriator to return the said property to its private owner, if the latter desires to reacquire the
same. Otherwise, the judgment of expropriation suffers an intrinsic flaw, as it would lack one
indispensable element for the proper exercise of the power of eminent domain, namely, the
particular public purpose for which the property will be devoted. Accordingly, the private
property owner would be denied due process of law, and the judgment would violate the property
owner’s right to justice, fairness, and equity.

In light of these premises, we now expressly hold that the taking of private property, consequent
to the Government’s exercise of its power of eminent domain, is always subject to the condition
that the property be devoted to the specific public purpose for which it was taken. Corollarily, if
this particular purpose or intent is not initiated or not at all pursued, and is peremptorily
abandoned, then the former owners, if they so desire, may seek the reversion of the property,
subject to the return of the amount of just compensation received. In such a case, the exercise of
the power of eminent domain has become improper for lack of the required factual justification.
Mactan-Cebu International Airport Authority (MCIAA) and Air Transportation Office (ATO) vs.
Bernardo Lozada, et al., G.R. No. 176625, February 25, 2010.

Gerrymandering; meaning. “Gerrymandering” is a term employed to describe an apportionment

of representative districts so contrived as to give an unfair advantage to the party in power. Fr.
Joaquin G. Bernas, a member of the 1986 Constitutional Commission, defined “gerrymandering”
as the formation of one legislative district out of separate territories for the purpose of favoring a
candidate or a party. The Constitution proscribes gerrymandering, as it mandates each legislative
district to comprise, as far as practicable, a contiguous, compact and adjacent territory.

As stated by the Office of the Solicitor General, the Province of Dinagat Islands consists of one
island and about 47 islets closely situated together, without the inclusion of separate territories. It
is an unsubstantiated allegation that the province was created to favor Congresswoman Glenda
Ecleo-Villaroman. Rodolfo G. Navarro, et al. vs. Executive Secretary Eduardo Ermita, et al.,
G.R. No. 180050, February 10, 2010.

House of Representative Electoral Tribunal (HRET); jurisdiction. The HRET has jurisdiction
over the question of qualifications of petitioners Abayon and Palparan as nominees of Aangat
Tayo and Bantay party-list organizations, respectively, who took the seats at the House of
Representatives that such organizations won in the 2007 elections.

Section 17, Article VI of the Constitution provides that the HRET shall be the sole judge of all
contests relating to, among other things, the qualifications of the members of the House of
Representatives. Since party-list nominees are “elected members” of the House of
Representatives no less than the district representatives are, the HRET has jurisdiction to hear
and pass upon their qualifications. By analogy with the cases of district representatives, once the
party or organization of the party-list nominee has been proclaimed and the nominee has taken
his oath and assumed office as member of the House of Representatives, the COMELEC’s
jurisdiction over election contests relating to his qualifications ends and the HRET’s own
jurisdiction begins. Electoral Tribunal, et al. /Congressman Jovito S. Palparan, Jr. vs. House of
Representatives Electoral Tribunal (HRET), et al., G.R. No. 189466/G.R. No. 189506,. February
11, 2010.

Judicial review; requisites. The courts’ power of judicial review, like almost all other powers
conferred by the Constitution, is subject to several limitations, namely: (1) there must be an
actual case or controversy calling for the exercise of judicial power; (2) the person challenging
the act must have “standing” to challenge; he must have a personal and substantial interest in the
case, such that he has sustained or will sustain, direct injury as a result of its enforcement; (3) the
question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue
of constitutionality must be the very lis mota of the case. Respondents assert that the second
requisite is absent in this case.

Generally, a party will be allowed to litigate only when (1) he can show that he has personally
suffered some actual or threatened injury because of the allegedly illegal conduct of the
government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely
to be redressed by a favorable action. The question on standing is whether such parties have
“alleged such a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely depends
for illumination of difficult constitutional questions.”

In David v. Macapagal-Arroyo, summarizing the rules culled from jurisprudence, the Supreme
Court held that taxpayers, voters, concerned citizens, and legislators may be accorded standing to
sue, provided that the following requirements are met:

(1) cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election law in
question;

(4) for concerned citizens, there must be a showing that the issues raised are of transcendental
importance which must be settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes upon
their prerogatives as legislators.

Petitioner having alleged a grave violation of the constitutional prohibition against Members of
the Cabinet, their deputies and assistants holding two (2) or more positions in government, the
fact that he filed this suit as a concerned citizen sufficiently confers him with standing to sue for
redress of such illegal act by public officials. Dennis B. Funa vs. Executive Secretary Eduardo
R. Ermita, Office of the President, G.R. No. 184740, February 11, 2010.

Judicial review; standing to sue. In her Memorandum, respondent Governor Geraldine B. Ecleo-
Villaroman of the Province of Dinagat Islands raises procedural issues. She contends that
petitioners do not have the legal standing to question the constitutionality of the creation of the
Province of Dinagat, since they have not been directly injured by its creation and are without
substantial interest over the matter in controversy. Moreover, she alleges that the petition is moot
and academic because the existence of the Province of Dinagat Islands has already commenced;
hence, the petition should be dismissed.
The contention is without merit.

In Coconut Oil Refiners Association, Inc. v. Torres, the Court held that in cases of paramount
importance where serious constitutional questions are involved, the standing requirements may
be relaxed and a suit may be allowed to prosper even where there is no direct injury to the party
claiming the right of judicial review. In the same vein, with respect to other alleged procedural
flaws, even assuming the existence of such defects, the Court, in the exercise of its discretion,
brushes aside these technicalities and takes cognizance of the petition considering its importance
and in keeping with the duty to determine whether the other branches of the government have
kept themselves within the limits of the Constitution.

Further, supervening events, whether intended or accidental, cannot prevent the Court from
rendering a decision if there is a grave violation of the Constitution. The courts will decide a
question otherwise moot and academic if it is capable of repetition, yet evading review. Rodolfo
G. Navarro, et al. vs. Executive Secretary Eduardo Ermita, et al., G.R. No. 180050, February 10,
2010.

Local government; creation of province. The Constitution clearly mandates that the creation of
local government units must follow the criteria established in the Local Government Code. Any
derogation of or deviation from the criteria prescribed in the Local Government Code violates
Sec. 10, Art. X of the Constitution.

R.A. No. 9355 (creating the province of Dinagat Islands) is unconstitutional for its failure to
comply with the criteria for the creation of a province prescribed in Sec. 461 of the Local
Government Code. The provision in Article 9 (2) of the Rules and Regulations Implementing
the Local Government Code of 1991 stating, “The land area requirement shall not apply where
the proposed province is composed of one (1) or more islands,” is null and void. Rodolfo G.
Navarro, et al. vs. Executive Secretary Eduardo Ermita, et al., G.R. No. 180050, February 10,
2010.

President; immunity from suit. Petitioners first take issue on the President’s purported lack of
immunity from suit during her term of office. The 1987 Constitution, so they claim, has removed
such immunity heretofore enjoyed by the chief executive under the 1935 and 1973 Constitutions.

Petitioners are mistaken. The presidential immunity from suit remains preserved under our
system of government, albeit not expressly reserved in the present constitution. Addressing a
concern of his co-members in the 1986 Constitutional Commission on the absence of an express
provision on the matter, Fr. Joaquin Bernas, S.J. observed that it was already understood in
jurisprudence that the President may not be sued during his or her tenure. The Court
subsequently made it abundantly clear in David v. Macapagal-Arroyo, a case likewise resolved
under the umbrella of the 1987 Constitution, that indeed the President enjoys immunity during
her incumbency.

And lest it be overlooked, the petition is simply bereft of any allegation as to what specific
presidential act or omission violated or threatened to violate petitioners’ protected rights.
 Lourdes D. Rubrico, et al. vs. Gloria Macapagal-Arroyo, et al., G.R. No. 183871, February 18,
2010.

Overbreadth. In the United States, claims of facial overbreadth have been entertained only
where, in the judgment of the court, the possibility that protected speech of others may be muted
and perceived grievances left to fester (due to the possible inhibitory effects of overly broad
statutes) outweighs the possible harm to society in allowing some unprotected speech or conduct
to go unpunished. Facial overbreadth has likewise not been invoked where a limiting
construction could be placed on the challenged statute, and where there are readily apparent
constructions that would cure, or at least substantially reduce, the alleged overbreadth of the
statute.

In the case at bar, the probable harm to society in permitting incumbent appointive officials to
remain in office, even as they actively pursue elective posts, far outweighs the less likely evil of
having arguably protected candidacies blocked by the possible inhibitory effect of a potentially
overly broad statute.

In this light, the conceivably impermissible applications of the challenged statutes – which are, at
best, bold predictions – cannot justify invalidating these statutes in toto and prohibiting the State
from enforcing them against conduct that is, and has for more than 100 years been,
unquestionably within its power and interest to proscribe. Instead, the more prudent approach
would be to deal with these conceivably impermissible applications through case-by-case
adjudication rather than through a total invalidation of the statute itself. Eleazar P. Quinto and
Gerino A. Tolentino, Jr. vs. Commission on Elections, G.R. No. 189698, February 22, 2010.

Public assembly; modification of permit. In modifying the permit outright, respondent Mayor of
Manila gravely abused his discretion when he did not immediately inform the IBP who should
have been heard first on the matter of his perceived imminent and grave danger of a substantive
evil that may warrant the changing of the venue. The opportunity to be heard precedes the action
on the permit, since the applicant may directly go to court after an unfavorable action on the
permit.

Respondent failed to indicate how he had arrived at modifying the terms of the permit against the
standard of a clear and present danger test which, it bears repeating, is an indispensable condition
to such modification. Nothing in the issued permit adverts to an imminent and grave danger of a
substantive evil, which “blank” denial or modification would, when granted imprimatur as the
appellate court would have it, render illusory any judicial scrutiny thereof. Intergrated Bar of
the Philippines, represented by its National President Jose Anselmo I. Cadiz, H. Harry L. Roque,
et al. vs. Honorable Manila Mayor Jose “Lito” Atienza, G.R. No. 175241, February 24, 2010.

Public officials; multiple office. The prohibition against holding dual or multiple offices or
employment under Section 13, Article VII of the 1987 Constitution was held inapplicable to
posts occupied by the Executive officials specified therein, without additional compensation in
an ex-officio capacity as provided by law and as required by the primary functions of said office.
The reason is that these posts do not comprise “any other office” within the contemplation of the
constitutional prohibition but are properly an imposition of additional duties and functions on
said officials. Apart from their bare assertion that respondent Bautista did not receive any
compensation when she was OIC of MARINA, respondents failed to demonstrate clearly that her
designation as such OIC was in an ex-officio capacity as required by the primary functions of her
office as DOTC Undersecretary for Maritime Transport.

Given the vast responsibilities and scope of administration of the MARINA, we are hardly
persuaded by respondents’ submission that respondent Bautista’s designation as OIC of
MARINA was merely an imposition of additional duties related to her primary position as
DOTC Undersecretary for Maritime Transport. It appears that the DOTC Undersecretary for
Maritime Transport is not even a member of the Maritime Industry Board, which includes the
DOTC Secretary as Chairman, the MARINA Administrator as Vice-Chairman, and the following
as members: Executive Secretary (Office of the President), Philippine Ports Authority General
Manager, Department of National Defense Secretary, Development Bank of the Philippines
General Manager, and the Department of Trade and Industry Secretary.

It must be stressed though that while the designation was in the nature of an acting and
temporary capacity, the words “hold the office” were employed. Such holding of office pertains
to both appointment and designation because the appointee or designate performs the duties and
functions of the office. The 1987 Constitution in prohibiting dual or multiple offices, as well as
incompatible offices, refers to the holding of the office, and not to the nature of the appointment
or designation, words which were not even found in Section 13, Article VII nor in Section 7,
paragraph 2, Article IX-B. To “hold” an office means to “possess or occupy” the same, or “to be
in possession and administration,” which implies nothing less than the actual discharge of the
functions and duties of the office.

The disqualification laid down in Section 13, Article VII is aimed at preventing the concentration
of powers in the Executive Department officials, specifically the President, Vice-President,
Members of the Cabinet and their deputies and assistants. Civil Liberties Union traced the
history of the times and the conditions under which the Constitution was framed, and construed
the Constitution consistent with the object sought to be accomplished by adoption of such
provision, and the evils sought to be avoided or remedied. We recalled the practice, during the
Marcos regime, of designating members of the Cabinet, their deputies and assistants as members
of the governing bodies or boards of various government agencies and instrumentalities,
including government-owned or controlled corporations. This practice of holding multiple
offices or positions in the government led to abuses by unscrupulous public officials, who took
advantage of this scheme for purposes of self-enrichment. The blatant betrayal of public trust
evolved into one of the serious causes of discontent with the Marcos regime. It was therefore
quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986
Constitutional Commission would draft into the proposed Constitution the provisions under
consideration, which were envisioned to remedy, if not correct, the evils that flow from the
holding of multiple governmental offices and employment. Dennis B. Funa vs. Executive
Secretary Eduardo R. Ermita, Office of the President, G.R. No. 184740, February 11, 2010.

Administrative Law
Proceedings; evidence. In administrative and quasi-judicial proceedings, the quantum of proof
required for a finding of guilt is only substantial evidence, “that amount of relevant evidence that
a reasonable mind might accept as adequate to support a conclusion, even if other minds, equally
reasonable, might conceivably opine otherwise.”

In the present case, petitioner’s Order of May 18, 2004 finding respondent administratively liable
for neglect of duty, which “implies the failure to give proper attention to a task expected of an
employee arising from either carelessness or indifference,” was adequately established by
substantial evidence. Office of the Ombudsman (Mindanao) vs. Asteria E. Cruzabra, G.R. No.
183507, February 24, 2010.

Election Law

Appointive officials; filing of certificate of candidacy. Under Section 13 of RA 9369, which

reiterates Section 66 of the Omnibus Election Code, any person holding a public appointive
office or position, including active members of the Armed Forces of the Philippines, and officers
and employees in government-owned or -controlled corporations, shall be considered ipso facto
resigned from his office upon the filing of his certificate of candidacy. On the other hand,
pursuant to Section 14 of RA 9006 or the Fair Election Act, which repealed Section 67 of the
Omnibus Election Code and rendered ineffective Section 11 of R.A. 8436 insofar as it
considered an elected official as resigned only upon the start of the campaign period
corresponding to the positions for which they are running, an elected official is not deemed to
have resigned from his office upon the filing of his certificate of candidacy for the same or any
other elected office or position. In fine, an elected official may run for another position without
forfeiting his seat.

Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second
proviso in the third paragraph of Section 13 of RA 9369 are not violative of the equal protection
clause of the Constitution and does not suffer from overbreadth. Eleazar P. Quinto and Gerino
A. Tolentino, Jr. vs. Commission on Elections, G.R. No. 189698, February 22, 2010. (Note: The
Supreme Court reconsidered its earlier decision of December 1, 2009.)

Automation project; validity. The contract-award of the 2010 Election Automation Project to the
joint venture of Total Information Management Corporation (TIM) and Smartmatic International
Corporation (Smartmatic) is valid. H. Harry L. Roque, Jr., Joel R. Butuyan, Romel R. Bagares,
et al. vs. Commission on Elections, represented by Hon. Chaiman Jose Melo, et al., Pete
Quirino-Qaudra (Petitioner-in-intervention) Senate of the Philippines, represented by its
President Juan Ponce Enrili (Movant-Intervenor), G.R. No. 188456, February 10, 2010. (Note:
The Supreme Court denied the motion to reconsider its earlier decision of September 10, 2009.)

Ballot; tampering. The COMELEC gravely abused its discretion in declaring Peñano, based on
the results of the revision of ballots, the winner in the mayoralty contest for the Municipality of
Alfonso, Cavite. The ballots, after proof of tampering, cannot be considered reflective of the will
of the people of Alfonso. Mayor Virgilio P. Varias vs. Commission on Elections, et al., G.R. No.
189078, February 11, 2010.
COMELEC; ballot appreciation. The records of the case indicate that the COMELEC en banc
proceeded to conduct a fresh appreciation of the contested ballots without first ascertaining
whether the ballots to be recounted had been kept inviolate. The COMELEC cannot proceed to
conduct a fresh appreciation of ballots without first ascertaining the integrity thereof. Sandra Y
Eriguel vs. Commission on Elections and Ma. Theresa Dumpit-Michelena, G.R. No. 190526,
February 26, 2010.

COMELEC; elevation to en banc without division decision. The COMELEC, in the exercise of
its quasi-judicial functions, is bound to follow the provision set forth in Section 3, Article IX-C
of the 1987 Constitution, which reads: “SEC. 3. The Commission on Elections may sit en banc
or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of
election cases, including pre-proclamation controversies.All such election cases shall be heard
and decided in division, provided that motions for reconsideration of decisions shall be decided
by the Commission en banc.”

It therefore follows that when the COMELEC is exercising its quasi-judicial powers such as in
the present case, the Commission is constitutionally mandated to decide the case first in division,
and en banc only upon motion for reconsideration.

Indeed, it is a basic doctrine in procedural law that the jurisdiction of a court or an agency
exercising quasi-judicial functions (such as the COMELEC) over the subject-matter of an action
is conferred only by the Constitution or by law. Jurisdiction cannot be fixed by the agreement of
the parties; it cannot be acquired through, or waived, enlarged or diminished by, any act or
omission of the parties. Neither can it be conferred by the acquiescence of the court, more
particularly so in election cases where the interest involved transcends those of the contending
parties.

This being so, the Special Second Division of the COMELEC clearly acted with grave abuse of
discretion when it immediately transferred to the Commission en banc a case that ought to be
heard and decided by a division. Such action cannot be done without running afoul of Section 3,
Article IX-C of the 1987 Constitution. Instead of peremptorily transferring the case to the
Commission en banc, the Special Second Division of COMELEC, should have instead assigned
another Commissioner as additional member of its Special Second Division, not only to fill in
the seat temporarily vacated by Commissioner Ferrer, but more importantly so that the required
quorum may be attained. Sandra Y Eriguel vs. Commission on Elections and Ma. Theresa
Dumpit-Michelena, G.R. No. 190526, February 26, 2010.

COMELEC; failure of elections. The 1987 Constitution vests in the COMELEC the broad power
to enforce all the laws and regulations relative to the conduct of elections, as well as the plenary
authority to decide all questions affecting elections except the question as to the right to vote.

Section 6 of the Omnibus Election Code provides for the instances when the COMELEC may
declare failure of elections. The COMELEC en banc based its decision to declare a failure of
elections in Precinct No. 6A/7A on the second instance stated in Section 6 of the Omnibus
Election Code, that is, the election in any polling place had been suspended before the hour fixed
by law for the closing of the voting on account of force majeure, violence, terrorism, fraud or
other analogous causes.

The COMELEC en banc ruled that since both parties agreed that the elections were suspended
before the hour fixed by law due to violence caused by undetermined persons, there was
obviously a failure of elections in the aforementioned precinct.

The findings of fact of the COMELEC en banc are binding on this Court. The grounds for failure
of election (i.e., force majeure, violence, terrorism, fraud, or other analogous cases) involve
questions of fact, which can only be determined by the COMELEC en banc after due notice to
and hearing of the parties. An application for certiorari against actions of the COMELEC is
confined to instances of grave abuse of discretion, amounting to lack or excess of jurisdiction.
TheCOMELEC, as the administrative agency and specialized constitutional body charged with
the enforcement and administration of all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall, has the expertise in its field so that its
findings and conclusions are generally respected by and conclusive on the Court.

Petitioner’s allegation of grave abuse of discretion by public respondent COMELEC en banc

implies such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction or, in other words, the exercise of the power in an arbitrary manner by reason of
passion, prejudice, or personal hostility; and it must be so patent or gross as to amount to an
evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law. It is not present in this case, as public respondent issued the COMELEC
Resolution dated October 17, 2005 based on the evidence on record and the law on the matter.
Abdul Gaffar P.M. Dibaratun vs. Commission on Elections, et al., G.R. No. 170365, February 2,
2010.

COMELEC; injunction. If instead of issuing a preliminary injunction in place of a TRO, a court

opts to decide the case on its merits with the result that it also enjoins the same acts covered by
its TRO, it stands to reason that the decision amounts to a grant of preliminary injunction. Such
injunction should be deemed in force pending any appeal from the decision. The view of
petitioner Panlilio—that execution pending appeal should still continue notwithstanding a
decision of the higher court enjoining such execution—does not make sense. It will render quite
inutile the proceedings before such court. Mayor Jose Marquez Lisboa Panlilio vs. Commission
on Elections, et al., G.R. No. 184286. February 26, 2010

COMELEC jurisdiction over intra-party leadership disputes. The COMELEC’s jurisdiction over
intra-party leadership disputes has already been settled by the Court. The Court ruled in Kalaw v.
Commission on Elections that the COMELEC’s powers and functions under Section 2, Article
IX-C of the Constitution, “include the ascertainment of the identity of the political party and its
legitimate officers responsible for its acts.” The Court also declared in another case that the
COMELEC’s power to register political parties necessarily involved the determination of the
persons who must act on its behalf. Thus, the COMELEC may resolve an intra-party leadership
dispute, in a proper case brought before it, as an incident of its power to register political parties.
The validity of respondent Roxas’ election as LP president is a leadership issue that the
COMELEC had to settle. Under the amended LP Constitution, the LP president is the issuing
authority for certificates of nomination of party candidates for all national elective positions. It is
also the LP president who can authorize other LP officers to issue certificates of nomination for
candidates to local elective posts. In simple terms, it is the LP president who certifies the official
standard bearer of the party. Jose L. Atienza, Jr., et al. vs. Commission on Elections, et al., G.R.
No. 188920, February 16, 2010.

COMELEC; tampered votes. We find the manner in which the COMELEC excluded the subject
returns to be fatally flawed. In the absence of clearly convincing evidence, the validity of
election returns must be upheld. A conclusion that an election return is obviously manufactured
or false and consequently should be disregarded in the canvass must be approached with extreme
caution and only upon the most convincing proof. Corrolarily, any plausible explanation, one
which is acceptable to a reasonable man in the light of experience and of the probabilities of the
situation, should suffice to avoid outright nullification, which results in disenfranchisement of
those who exercised their right of suffrage. As will be discussed shortly, there is a patent lack of
basis for the COMELEC’s findings that the subject returns were tampered. In disregard of the
principle requiring “extreme caution” before rejecting election returns, the COMELEC
proceeded with undue haste in concluding that the subject returns were tampered. This is grave
abuse of discretion amounting to lack or excess of jurisdiction.

In sum, it was highly irregular for the COMELEC to outrightly exclude the subject returns
resulting in the disenfranchisement of some 1,127 voters as per the records of this case. The
proper procedure in case of discrepancy in the other authentic copies of the election returns is
clearly spelled out in Section 236 of the OEC. For contravening this legal provision, the
COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction.
Rose Marie D. Doromal vs. Hernan G. Biron and Commission on Elections, G.R. No. 181809,
February 17, 2010.

Disqualification; voter inclusion/exclusion proceedings. Voters’ inclusion/exclusion proceedings,

on the one hand, essentially involve the issue of whether a petitioner shall be included in or
excluded from the list of voters based on the qualifications required by law and the facts
presented to show possession of these qualifications.

On the other hand, COC denial/cancellation proceedings involve the issue of whether there is a
false representation of a material fact. The false representation must necessarily pertain not to a
mere innocuous mistake but to a material fact or those that refer to a candidate’s qualifications
for elective office. Apart from the requirement of materiality, the false representation must
consist of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise
render a candidate ineligible or, otherwise stated, with the intention to deceive the electorate as
to the would-be candidate’s qualifications for public office.

In Velasco, the Court rejected Velasco’s contention that the Comelec improperly ruled on the
right to vote when it cancelled his COC. The Court stated that the Comelec merely relied on or
recognized the RTC’s final and executory decision on the matter of the right to vote in the
precinct within its territorial jurisdiction.
In the present petition, it is Panlaqui’s turn to proffer the novel interpretation that the RTC
properly cancelled Velasco’s COC when it ruled on his right to vote. The Court rejects the same.

It is not within the province of the RTC in a voter’s inclusion/exclusion proceedings to take
cognizance of and determine the presence of a false representation of a material fact. It has no
jurisdiction to try the issues of whether the misrepresentation relates to material fact and whether
there was an intention to deceive the electorate in terms of one’s qualifications for public office.
The finding that Velasco was not qualified to vote due to lack of residency requirement does not
translate into a finding of a deliberate attempt to mislead, misinform, or hide a fact which would
otherwise render him ineligible. Mozart P. Panlaqui vs. Commission on Elections and Nardo M.
Velasco, G.R. No. 188671, February 24, 2010.

Pre-proclamation controversy; contested returns. It is settled that a pre-proclamation controversy

is summary in character; indeed, it is the policy of the law that pre-proclamation controversies be
promptly decided, so as not to delay canvass and proclamation. The Board of Canvassers (BOC)
will not look into allegations of irregularity that are not apparent on the face of ERs that appear
otherwise authentic and duly accomplished.

Consistent with the summary character and limited scope of a pre-proclamation controversy,
Section 20 of RA 7166 lays down the procedure to be followed when ERs are contested before
the BOC. Compliance with this procedure is mandatory, so as to permit the BOC to resolve the
objections as quickly as possible.

Section 20 of RA 7166 and Section 36 of COMELEC Resolution 2962 provide that any
candidate may contest the inclusion of an ER by making an oral objection at the time the
questioned return is submitted for canvass; the objecting party shall also submit his objections in
writing simultaneously with the oral objections. The BOC shall consider the written objections
and opposition, if any, and summarily rule on the petition for exclusion. Any party adversely
affected by such ruling must immediately inform the BOC if he intends to appeal such ruling.

After the BOC rules on the contested returns and canvasses all the uncontested returns, it shall
suspend the canvass. Any party adversely affected by the ruling has 48 hours to file a Notice of
Appeal; the appeal shall be filed within five days. Upon receipt of the notice of appeal, the BOC
will make its report to the COMELEC, and elevate the records and evidence.

Moreover, pursuant to Section 235 of the Omnibus Election Code, in cases where the ERs appear
to have been tampered with, altered or falsified, the COMELEC shall examine the other copies
of the questioned returns and, if the other copies are likewise tampered with, altered, falsified, or
otherwise spurious, after having given notice to all candidates and satisfied itself that the
integrity of the ballot box and of the ballots therein have been duly preserved, shall order a
recount of the votes cast, prepare a new return which shall be used by the BOC as basis for the
canvass, and direct the proclamation of the winner accordingly.

Based on the records of this case, we find that petitioner failed to timely make his objections to
the contested ERs. Themistocles A. Saño, Jr. vs. Commission on Elections, et al., G.R. No.
182221, February 3, 2010.
Local Government

Succession; sannggunian. Sec. 45(b) of RA 7160 provides for the rule on succession in cases of
permanent vacancies in the Sanggunian. The law provides for conditions for the rule of
succession to apply: First, the appointee shall come from the same political party as that of the
Sanggunian member who caused the vacancy. Second, the appointee must have a nomination
and a Certificate of Membership from the highest official of the political party concerned. Atty.
Lucky M. Damasen vs. Oscar G. Tumamao, G.R. No. 173165, February 17, 2010.

Public officers

Appointment; submission to Civil Service Commission. The deliberate failure of the appointing
authority (or other responsible officials) to submit respondent’s appointment paper to the CSC
within 30 days from its issuance did not make her appointment ineffective and incomplete.

Under Article 1186 of the Civil Code, “[t]he condition shall be deemed fulfilled when the obligor
voluntarily prevents its fulfillment.” Applying this to the appointment process in the civil
service, unless the appointee himself is negligent in following up the submission of his
appointment to the CSC for approval, he should not be prejudiced by any willful act done in bad
faith by the appointing authority to prevent the timely submission of his appointment to the CSC.
While it may be argued that the submission of respondent’s appointment to the CSC within 30
days was one of the conditions for the approval of respondent’s appointment, however,
deliberately and with bad faith, the officials responsible for the submission of respondent’s
appointment to the CSC prevented the fulfillment of the said condition. Thus, the said condition
should be deemed fulfilled.

The Court has already had the occasion to rule that an appointment remains valid in certain
instances despite non-compliance of the proper officials with the pertinent CSC rules. Arlin B.
Obiasca vs. Jeane O. Basallote, G.R. No. 176707, February 17, 2010.

EN BANC

ANTENOR A. ARBONIDA, G.R. No. 167137

Petitioner,
Present:

PUNO, C.J.,
 QUISUMBING,

YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ,

CARPIO,

AUSTRIA-MARTINEZ,

- versus - CORONA,

CARPIO MORALES,

CALLEJO, SR.,

AZCUNA,

TINGA,

CHICO-NAZARIO,

GARCIA,

VELASCO, JR., and

NACHURA, JJ.

COMMISSION ON ELECTIONS and ROMEO Promulgated:

C. CARINGAL,

Respondents.
March 14, 2007

 On leave.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

QUISUMBING, J.:

This special civil action for certiorari filed by petitioner Antenor A. Arbonida
assails the Resolution1[1] dated November 18, 2004 of the Commission on
Elections (COMELEC) in SPC No. 04-274. In its resolution, the COMELEC had
annulled the proclamation of Arbonida as municipal councilor of Tanza, Cavite
and instead, ordered the proclamation of private respondent Romeo C. Caringal
as the duly elected eighth municipal councilor.

The Resolution was later affirmed by the COMELEC en banc in another

Resolution2[2] dated February 23, 2005, also herein assailed.

Arbonida prays that the questioned COMELEC resolutions be reversed and

set aside, and that the COMELEC be directed to (1) annul the proclamation of
Caringal and order him to vacate the post of councilor, and (2) issue a new
resolution affirming the election of Arbonida and reinstating him to his position as
councilor of Tanza, Cavite.

1[1] Rollo, pp. 29-36.

2[2] Id. at 22-28.

 The antecedent facts are as follows:

Arbonida and Caringal were candidates for the Sangguniang Bayan of Tanza,
Cavite during the May 10, 2004 synchronized national and local elections. After the
canvassing of votes on May 12, 2004, the Municipal Board of Canvassers of Tanza
(MBOC) proclaimed Arbonida the eighth winning candidate with 14,620 votes as
against the 14,552 votes of Caringal.3[3] On June 16, 2004, Caringal filed a petition
with the COMELEC seeking to annul Arbonidas proclamation on the ground of
manifest errors in the statement of votes by precinct (SOVP). Caringal alleged that
the MBOC committed mistakes in the copying of figures from the election returns to
the SOVPs. Arbonida filed a motion to dismiss4[4] arguing that the COMELEC had no
jurisdiction to take cognizance of the petition since dagdag-bawas did not constitute
manifest error but rather a ground for an election protest. He also claimed that a
pre-proclamation controversy was no longer viable after the proclamation of the
winning candidate.

After an examination and comparison of the subject election returns and

SOVPs, the COMELEC found that there indeed existed discrepancies in the number
of votes sufficient to have an effect on the last place for municipal councilor being
contested. Consequently, the COMELEC First Division annulled the proclamation of
Arbonida and instead proclaimed Caringal as the duly elected eighth municipal
councilor of Tanza, Cavite, as follows:

3[3] Id. at 22.

4[4] Id. at 47-50.

 WHEREFORE, premises considered, the Commission (First Division) RESOLVED,
as it hereby RESOLVES, to GRANT the instant petition finding it imbued with merit.

The proclamation of ANTENOR A. ARBONIDA as the eighth (8th) Municipal

Councilor of Tanza, Cavite in the May 10, 2004 Synchronized National and Local
Elections is hereby ANNULLED and he is ORDERED to CEASE AND DESIST from exercising
the powers and duties of the aforesaid office and to VACATE the same.

ACCORDINGLY, the Municipal Board of Canvassers of Tanza, Cavite are (sic)

hereby DIRECTED to RECONVENE, make the proper corrections and PROCLAIM
petitioner ROMEO C. CARINGAL as the duly elected eighth (8th) Municipal Council of
Tanza, Cavite in the May 10, 2004 Synchronized National and Local Elections.5[5]

On appeal, the COMELEC en banc denied the motion for reconsideration:

IN VIEW OF THE FOREGOING PREMISES, the instant Motion for Reconsideration

is hereby DENIED for LACK OF MERIT.

ACCORDINGLY, the status quo ante order issued by this Commission on 14

December 2004 is hereby LIFTED. The Municipal Board of Canvassers of Tanza, Cavite is
therefore directed to (i) RECONVENE after due notice to all concerned parties, (ii)
CORRECT the errors in the Statement of Votes by Precinct based on the figures
appearing on the election returns of the subject precincts, (iii) PREPARE a new
Certificate of Canvass of Votes and Proclamation and thereafter, (iv) PROCLAIM ROMEO
C. CARINGAL as the 8th winning candidate for Sangguniang Bayan of Tanza, Cavite,
during the May 10, 2004 National and Local Elections.

x x x x6[6]

Petitioner now raises the following issues for this Courts consideration:

I.

5[5] Id. at 35.

6[6] Id. at 27.

 WHETHER OR NOT, CONSIDERING THE ALLEGATIONS CONTAINED THEREIN, SPC NO. 04-
274 IS A PRE-PROCLAMATION CASE, AND EVEN IF IT WERE, WHETHER OR NOT IT COULD
BE FILED BEYOND FIVE (5) DAYS FROM PROCLAMATION;

II.

WHETHER OR NOT CARINGAL COULD CHANGE HIS CAUSE OF ACTION TO ONE FOR
DECLARATION OF NULLITY OF PROCLAMATION WHICH COULD BE BEYOND FIVE DAYS
FROM PROCLAMATION (35 DAYS FROM PROCLAMATION)[;]

III.

AND ASSUMING COMELEC HAS JURISDICTION OVER SPC NO. 04-274 WHETHER OR NOT
IT COULD BE RESOLVED BY THE DIVISION OF THE COMMISSION;

IV.

WHETHER OR NOT GIVEN THE FACTS OF THIS CASE, A MOTION TO DISMISS COULD BE
VALIDLY FILED[;]

V.

WHETHER OR NOT THE COMELEC COULD VALIDLY SUSPEND THE RULES IN THE CASE AT
BAR WHERE IT HAS NO JURISDICTION OVER THE MAIN CASE AND WHETHER OR NOT
THE COMELEC COULD VALIDLY SUSPEND THE RULES IN THE CASE AT BAR TO JUSTIFY ITS
ASSUMPTION OF JURISDICTION;

VI.

WHETHER OR NOT THE RESOLUTION OF FEBRUARY 23, 2005AND OF NOVEMBER 18,

2004SHOULD BE NULLIFIED FOR WANT OF JURISDICTION ON THE PART OF
COMELEC.7[7]

Simply stated, the issues for our resolution are (1) whether the petition
filed is a proper subject of a pre-proclamation controversy; (2) if so, whether the
COMELEC has jurisdiction to entertain a petition filed beyond the period provided
by law and the rules; and (3) whether the COMELEC First Division is without
jurisdiction to issue the November 18, 2004 resolution.

7[7] Id. at 157.

 Arbonida claims that the allegation of dagdag-bawas which was the ground
upon which Caringal anchored his petition before the COMELEC, was not a proper
subject of a pre-proclamation case.8[8] He stated that dagdag-bawas is
cheating,9[9] and hence, properly threshed out in a regular election protest. He also
avers that when Caringal was confronted with a motion to dismiss, he changed the
nature of his petition from a pre-proclamation case to a petition for annulment of
proclamation, in order to confer jurisdiction on the COMELEC and escape the
requirement of filing within a five-day reglementary period.10[10]

Caringal argues that the rule on the five-day filing period presupposes a
valid proclamation. Thus, when the proclamation appears to be a nullity, a pre-
proclamation case may still be given due course.11[11]

The findings of the COMELEC First Division are as follows:

An examination and comparison of the subject Election Returns and the

Statement of Votes by Precincts clearly reveals that there were indeed discrepancies in
the number of votes reflected between the two documents. The discrepancies stand
thus:

INCREASE FOR THE PRIVATE RESPONDENT [ARBONIDA]

PRECINCT NO. VOTES AS PER ELECTION VOTES IN STATEMENT OF

RETURNS VOTES PER PRECINCT

8[8] Id. at 10 and 49.

9[9] Id. at 158 and 160.

10[10] Id. at 161.

11[11] Id. at 185.

 48C 35 55
49A 26 36
50B 37 57
50C 22 32
84C 53 65
96A 25 35
100A 23 33
100B 57 77
101A 47 57
104A 67 77
104C 66 76
105A/106A 73 83
107A 55 65
107B 61 67
107C 57 67
107D/107E 78 88
32A 24 34
32D 31 51
32E 21 41
TOTAL: 858 TOTAL: 109812[12]

DECREASE FOR PETITIONER [CARINGAL]

PRECINCT NO. VOTES AS PER ELECTION VOTES IN STATEMENT OF

RETURNS VOTES PER PRECINCT
29B 27 21
143C 43 42
TOTAL: 70 TOTAL: 63

xxxx

By virtue of these errors, private respondent [Arbonida] gained two hundred

forty (240) additional votes. Deducting it from the fourteen thousand six hundred
twenty (14,620) he supposedly received, as reflected in the Statement of Votes by
Precinct, private respondent [Arbonida] wound up with fourteen thousand three
hundred eighty (14,380) votes.

As regard (sic) the petitioner [Caringal], a total of seven (7) votes were
subtracted from his votes. Adding it to the fourteen thousand five hundred fifty-two
(14,552) votes he obtained, as written in the Statement of Votes by Precinct, petitioner
[Caringal] should instead have fourteen thousand five hundred fifty-nine (14,559) votes.

12[12] The total number of votes should be 1096.

 Therefore, seeing that, between the two, the petitioner [Caringal] garnered
more votes, he, and not the private respondent [Arbonida], should have been
proclaimed as the duly elected eighth (8th) Municipal Councilor of Tanza, Cavite.13[13]

The Omnibus Election Code defines a pre-proclamation controversy as

follows:

Sec. 241. Definition. - A pre-proclamation controversy refers to any question

pertaining to or affecting the proceedings of the board of canvassers which may be
raised by any candidate or by any registered political party or coalition of political
parties before the board or directly with the Commission, or any matter raised under
Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt,
custody and appreciation of the election returns.

In this case, the petition filed by Caringal before the COMELEC involves a
pre-proclamation controversy and not an election contest. Although the petition
alleged fraud, the remedy sought was merely for correction of erroneous entries
in the statements of votes which were based on the election returns.

In Milla v. Balmores-Laxa,14[14] where a similar factual background

existed, this Court stated that the statement of votes forms the basis of the
certificate of canvass and of the proclamation. Any error in the statement
ultimately affects the validity of the proclamation.15[15] If a candidates
proclamation is based on a statement of votes which contains erroneous entries,
it is a nullity. As the COMELEC correctly stated,16[16] where a proclamation is null

13[13] Rollo, pp. 33-34.

14[14] G.R. No. 151216, July 18, 2003, 406 SCRA 679.

15[15] Id. at 684.

16[16] Rollo, p. 34.

and void, it is no proclamation at all and the proclaimed candidates assumption of
office cannot deprive the COMELEC of the power to annul the
proclamation.17[17] Moreover, it is well-entrenched in our jurisprudence that the
COMELEC has the power to suspend its own rules so as not to defeat the will of
the electorate.18[18] In Milla, the Court allowed the filing of a petition one
month after the proclamation of the petitioner therein on the ground that an
invalid proclamation is no proclamation. It pronounced thus:

While our election laws are silent when such and similar petitions may be filed
directly with the COMELEC, the above-quoted Section 5, Rule 27 of the Rules of
Procedure sets a prescriptive period of five (5) days following the date of proclamation.
The COMELEC, however, could suspend its own Rules of Procedure so as not to defeat
the will of the electorate. For adherence to technicality that would put a stamp on a
palpably void proclamation, with the inevitable result of frustrating the peoples will,
cannot be countenanced.19[19]

And so it is in the case at bar.

Therefore, the COMELEC correctly assumed jurisdiction over Caringals

petition for the correction of the entries, and consequently, to declare the nullity
of Arbonidas proclamation.

17[17] Milla v. Balmores-Laxa, supra at 685; See Ramirez v. Commission on Elections, G.R. No.
122013, March 26, 1997, 270 SCRA 590, 602; Torres v. Commission on Elections, G.R. No.
121031, March 26, 1997, 270 SCRA 583, 589.

18[18] Jaramilla v. Commission on Elections, G.R. No. 155717, October 23, 2003, 414 SCRA
337, 343-344; Baddiri v. Commission on Elections, G.R. No. 165677, June 8, 2005, 459
SCRA 808, 816.

19[19] Milla v. Balmores-Laxa, supra note 17.

 Anent the issue of whether the COMELEC First Division had jurisdiction to
issue the November 18, 2004 Resolution, Arbonida claims that it has no
jurisdiction to hear and decide the petition in question based on Section 5, Rule
27 of the COMELEC Rules of Procedure, stating that pre-proclamation
controversies are to be heard and decided by the Commission en banc.20[20]

The claim has no merit. We need only to look at Section 3 of Article IX-C of
the 1987 Constitution which provides:

Section 3. The Commission on Elections may sit en banc or in two divisions, and
shall promulgate its rules of procedure in order to expedite disposition of election cases,
including pre-proclamation controversies. All such election cases shall be heard and
decided in division, provided that motions for reconsideration of decisions shall be
decided by the Commission en banc. (Emphasis supplied.)

The Constitution clearly mandates that pre-proclamation controversies

must be first heard and decided by a division of the COMELEC, and then by the en
banc if a motion for reconsideration were filed. This Court has consistently ruled
that the requirement of hearing and decision of election cases, including pre-
proclamation controversies, at the first instance by a division of the COMELEC,
and not by it as a whole, is mandatory and jurisdictional.21[21] The constitutional
provision yields to no other interpretation other than what its plain meaning
presents.

20[20] Rollo, p. 15.

21[21] See Balindong v. Commission on Elections, G.R. Nos. 153991-92, October 16, 2003, 413
SCRA 583, 591-592; Baytan v. Commission on Elections, G.R. No. 153945, February 4,
2003, 396 SCRA 703, 716; Jaramilla v. Commission on Elections, supra note 18, at 341,
citing Milla v. Balmores-Laxa, supra note 14.
 In view of the foregoing, the COMELEC First Division and COMELEC en banc
did not gravely abuse their discretion in issuing their respective Resolutions.

WHEREFORE, the instant petition for certiorari is DISMISSED for lack of

merit. There being no grave abuse of discretion committed by public respondent
COMELEC, the assailed Resolution of the COMELEC First Division in SPC No. 04-
274 dated November 18, 2004 and the en banc Resolution dated February 23,
2005 are AFFIRMED. Costs against petitioner.

SO ORDERED.

LEONARDO A. QUISUMBING

Associate Justice

WE CONCUR:
REYNATO S. PUNO

Chief Justice

CONSUELO ANGELINA
YNARES- SANDOVAL-
SANTIAGO GUTIERREZ
Associate Justice Associate Justice
ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice

RENATO C. CORONA CONCHITA CARPIO MORALES

Associate Justice Associate Justice

ROMEO J. CALLEJO, SR. ADOLFO S. AZCUNA

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

CANCIO C. GARCIA PRESBITERO J. VELASCO, JR.

Associate Justice
Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice
CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO

Chief Justice

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 192289 January 8, 2013

KAMARUDIN K. IBRAHIM, Petitioner,

vs.
COMMISSION ON ELECTIONS and ROLAN G. BUAGAS, Respondents.

DECISION

REYES, J.:
Before us is a Petition for Certiorari and Prohibition with Prayer for the Issuance of a Writ of
Preliminary Injunction and/or Temporary Restraining Order1 filed under Rule 64 of the Rules of
Court assailing the following resolutions of the public respondent Commission on Elections
(COMELEC):

(a) Minute Resolution No. 09-09462 (December 22, 2009 Resolution), dated December
22, 2009, disqualifying the petitioner herein, Kamarudin K. Ibrahim (Ibrahim), from the
2010 Vice-Mayoralty race in Datu Unsay, Maguindanao for supposedly not being a
registered voter of the said municipality; and

(b) Resolution3 (May 6, 2010 Resolution) issued on May 6, 2010, relative to SPA Case
No. 10-002 (MP) LOCAL, denying Ibrahim’s opposition4 to Resolution No. 09-0946.

Antecedent Facts

On December 1, 2009, Ibrahim filed his certificate of candidacy to run as Vice-Mayor of Datu-
Unsay in the May 10, 2010 elections. Thereafter, respondent Rolan G. Buagas (Buagas), then
Acting Election Officer in the said municipality, forwarded to the COMELEC’s Law Department
(Law Department) the names of 20 candidates who were not registered voters therein. The list5
included Ibrahim’s name, along with those of two candidates for mayor, one for vice-mayor and
16 for councilor.

In a Memorandum6 dated December 10, 2009, the Law Department brought to the attention of
the COMELEC en banc the names of 56 candidates running for various posts in Maguindanao
and Davao del Sur who were not registered voters of the municipalities where they sought to be
elected. The Law Department recommended the retention of the said names in the Certified List
of Candidates, but for the COMELEC to motu propio institute actions against them for
disqualification and for violation of election laws. Thereafter, the COMELEC en banc issued the
herein assailed December 22, 2009 Resolution approving, but with modification, the Law

Department’s recommendation in the following wise:

1. to disqualify the foregoing candidates for not being registered voters of the respective
municipalities where they seek to be elected without prejudice to their filing of an
opposition within two (2) days from publication hereof; and

2. to file election offense cases against said candidates for violation of Sec. 74 in relation
to Sec. 262 of the Omnibus Election Code.7 (Italics ours)

On January 8, 2010, Ibrahim and 50 other candidates filed a Petition/Opposition8 to assail the
Resolution dated December 22, 2009. In the Petition/Opposition, which was docketed as SPA
10-002 (MP) LOCAL, it was stressed that some of those affected by the Resolution dated
December 22, 2009 had participated as candidates in the 2004 and 2007 elections. If indeed they
were not registered voters, they should have been disqualified then. Further, it was emphasized
that the candidates who filed the Petition/Opposition were permanent residents and were
domiciled at the place where they sought to be elected.
The COMELEC en banc denied the Petition/Opposition through the herein assailed Resolution
dated May 6, 2010. The COMELEC declared that the Resolution dated December 22, 2009 was
anchored on the certification, which was issued by Buagas and Acting Provincial Election
Supervisor of Maguindanao, Estelita B. Orbase, stating that Ibrahim, among other candidates,
were not registered voters of Datu Unsay, Maguindanao. The certification was issued in the
performance of official duty, hence, the presumption of regularity attached to it in the absence of
contrary evidence. Ibrahim and company failed to adduce evidence proving their allegations of
registration and residence.

In the May 10, 2010 elections, during which time the Resolution dated May 6, 2010 had not yet
attained finality, Ibrahim obtained 446 votes, the highest number cast for the Vice-Mayoralty
race in Datu Unsay.9 However, the Municipal Board of Canvassers (MBOC), which was then
chaired by Buagas, suspended Ibrahim’s proclamation on the basis of Section 5, Rule 2510 of the
COMELEC Rules of Procedure.11

Issue

Whether or not the COMELEC en banc acted with grave abuse of discretion amounting to lack
or excess of jurisdiction when it issued the Resolutions dated December 22, 2009 and May 6,
2010.

Arguments in Support of the Instant Petition

Ibrahim posits that the MBOC is a ministerial body created merely "to take the returns as made
from the different voting precincts, add them up and declare the result."12 As long as the returns
are on their face genuine and are signed by the proper officers, sans indications of being spurious
and forged, they cannot be rejected on the ground of alleged questions on the qualifications of
voters and the existence of electoral frauds and irregularities. Further, since Ibrahim received the
highest number of votes for Vice-Mayor, all possible doubts should be resolved in favor of his
eligibility, lest the will of the electorate, which should be the paramount consideration, be
defeated.13

In its Manifestation and Motion in Lieu of Comment,14 the Office of the Solicitor General (OSG)
proposes for the instant Petition to be granted. The OSG points out that in Cipriano v.
Commission on Elections,15 this court nullified, for lack of proper proceedings before their
issuance, the resolutions issued by the COMELEC relative to the cancellation of a certificate of
candidacy. The OSG emphasizes that similarly, Ibrahim was disqualified as a candidate without
prior notice and hearing and he was given the chance to file an opposition only after the issuance
of the Resolution dated December 22, 2009.

Further citing Bautista v. Comelec,16 the OSG argues that jurisdiction over petitions to cancel a
certificate of candidacy pertains to the COMELEC sitting in division and not to the COMELEC
en banc. The COMELEC en banc can only take cognizance of petitions to cancel a certificate of
candidacy when the required number of votes for a division to reach a decision, ruling, order or
resolution is not obtained, or when motions for reconsideration are filed to assail the said
issuances of a division.
The OSG likewise refers to Section 4(B)(3)17 of Resolution No. 869618 to stress that generally,
the COMELEC cannot motu propio file petitions for disqualification against candidates. Section
519 of the same resolution, however, provides the only exception to the foregoing, to wit, that
certificates of candidacy of those running for the positions of President, Vice-President, Senator
and Party-List maybe denied due course and canceled motu propio by the COMELEC based on
grounds enumerated therein. While there was a Petition for Disqualification20 filed by Bai Reshal
S. Ampatuan against Ibrahim and company, it was not the basis for the COMELEC en banc’s
issuance of the Resolutions dated December 22, 2009 and May 6, 2010. Instead, the certification
issued by Buagas was the basis for the subsequent actions of the Law Department and the
COMELEC en banc leading to the issuance of the herein assailed resolutions.

The OSG also invokes Section 1621 of COMELEC Resolution No. 867822 to assert that the
MBOC had no authority to order the suspension of Ibrahim’s proclamation. Upon motion, the
suspension of a winning candidate’s proclamation can be ordered during the pendency of a
disqualification case before the COMELEC. However, only the COMELEC, as a tribunal, has
the authority to issue orders relative to cases pending before it. The MBOC cannot substitute its
own judgment for that of the COMELEC’s. The MBOC can suspend a winning candidate’s
proclamation only when an actual issue within the Board’s jurisdiction arises in the course of
conducting a canvass. The aforementioned issues include the commission of violent and terrorist
acts or the occurrence of a calamity at the canvassing site. Absent any determination of
irregularity in the election returns, as well as an order enjoining the canvassing and proclamation
of the winner, it is a mandatory and ministerial duty of the MBOC concerned to count the votes
based on such returns and declare the result.23

It is also the OSG’s position that Section 5, Rule 2524 of the COMELEC Rules of Procedure was
irregularly worded for using the word "shall" when Section 625 of Republic Act (R.A.) No.
6646,26 which the rules seek to implement, merely employed the word "may". The use of the
word "may" indicates that the suspension of a proclamation is merely directory and permissive in
nature and operates to confer discretion.27

The COMELEC’s Contentions

In the Compliance28 filed with the court, the COMELEC assails as improper Ibrahim’s
immediate resort to the instant Petition for Certiorari under Rule 64 of the Rules of Court.
Despite the issuance of the herein assailed resolutions, Ibrahim’s name was not stricken off from
the certified list of candidates during the May 10, 2010 elections and the votes cast for him were
counted. Hence, no actual prejudice was caused upon him as the COMELEC did not even direct
the MBOC to suspend his proclamation. It was the MBOC’s ruling which resulted to the
suspension of his proclamation. Such being the case, Ibrahim should have instead filed a pre-
proclamation controversy before the COMELEC anchored on the supposed illegality of the
MBOC’s proceedings. Section 241 of Batas Pambansa Blg. 881 (BP 881), otherwise known as
the Omnibus Election Code (OEC), defines pre-proclamation controversies as referring to any
questions "pertaining to or affecting the proceedings of the board of canvassers which may be
raised by any candidate or by any registered political party or coalition of political parties before
the board or directly with the Commission, or any matter raised xxx in relation to the
preparation, transmission, receipt, custody and appreciation of the election returns." Had Ibrahim
instituted instead a pre-proclamation controversy, the COMELEC could have corrected the
MBOC’s ruling, if indeed, it was erroneous.

The COMELEC further argues that Ibrahim was not denied due process as he and the other
candidates referred to in the Resolutions dated December 22, 2009 and May 6, 2010 were given
the opportunity to file their opposition. Ibrahim did file his Petition/Opposition and sought reliefs
from the COMELEC en banc. Now, he should not be allowed to repudiate the proceedings
merely because the result was adverse to him. Moreover, the OSG’s invocation of the doctrines
enunciated in Bautista v. Comelec29 is misplaced because in the said case, there was a total
absence of notice and hearing.

The COMELEC emphasizes that Ibrahim was undeniably not a registered voter in Datu Unsay
when he ran as Vice-Mayor in the May 10, 2010 elections. He cannot possess any mandate to
serve as an elected official as by his act and willful misrepresentations, he had deceived the
electorate.

Our Ruling

We grant the instant Petition.

Before resolving the merits of the petition, the court shall first dispose of the procedural issue
raised by the COMELEC.

Ibrahim properly resorted to the instant Petition filed under Rule 64 of the Rules of Court to
assail the Resolutions dated December 22, 2009 and May 6, 2010 of the COMELEC en banc.

The COMELEC seeks the dismissal of the instant Petition on the basis of a technical ground, to
wit, that Ibrahim’s resort to a petition for certiorari filed under Rule 64 of the Rules of Court to
challenge the Resolutions dated December 22, 2009 and May 6, 2010 is improper. Ibrahim
should have instead filed before the COMELEC a pre-proclamation controversy to allow the
latter to correct the MBOC’s ruling if it was indeed erroneous.

The claim fails to persuade.

Section 7, Article IX of the 1987 Constitution in part substantially provides that any decision,
order or ruling of any of the Constitutional Commissions may be brought for review to the
Supreme Court on certiorari within 30 days from receipt of a copy thereof. The orders, ruling and
decisions rendered or issued by the COMELEC en banc must be final and made in the exercise
of its adjudicatory or quasi-judicial power.30 Further, Section 1, Rule 64 of the Rules of Court
states that it shall govern the review of final judgments and orders or resolutions of the
COMELEC and the Commission on Audit.

A pre-proclamation controversy is defined in Section 241 of the OEC as referring to "any

question pertaining to or affecting the proceedings of the board of canvassers which may be
raised by any candidate or by any registered political party or coalition of parties before the
board or directly with the Commission, or any matter raised under Sections 233,31 234,32 23533
and 23634 in relation to the preparation, transmission, receipt, custody and appreciation of the
election returns." Section 243 of the OEC restrictively enumerates as follows the issues which
can be raised in a pre-proclamation controversy:

(a) Illegal composition or proceedings of the board of canvassers;

(b) The canvassed election returns are incomplete, contain material defects, appear to be
tampered with or falsified, or contain discrepancies in the same returns or in other
authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code;

(c) The election returns were prepared under duress, threats, coercion, or intimidation, or
they are obviously manufactured or not authentic; and

(d) When substitute or fraudulent returns in controverted polling places were canvassed,
the results of which materially affected the standing of the aggrieved candidate or
candidates.

The illegality of the proceedings of the board of canvassers is the first issue which may be raised
in a pre-proclamation controversy. To illustrate, the proceedings are to be considered as illegal
when the board is constituted not in accordance with law, or is composed of members not
enumerated therein, or when business is transacted sans a quorum.

In the case at bar, the now assailed Resolutions dated December 22, 2009 and May 6, 2010 were
issued with finality by the COMELEC en banc. Under the Constitution and the Rules of Court,
the said resolutions can be reviewed by way of filing before us a petition for certiorari. Besides,
the issues raised do not at all relate to alleged irregularities in the preparation, transmission,
receipt, custody and appreciation of the election returns or to the composition and proceedings of
the board of canvassers. What the instant Petition challenges is the authority of the MBOC to
suspend Ibrahim’s proclamation and of the COMELEC en banc to issue the assailed resolutions.
The crux of the instant Petition does not qualify as one which can be raised as a pre-proclamation
controversy.

The COMELEC en banc is devoid of authority to disqualify Ibrahim as a candidate for the
position of Vice-Mayor of Datu Unsay.

Section 3(C), Article IX of the 1987 Constitution explicitly provides:

Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate
its rules of procedure in order to expedite disposition of election cases, including pre-
proclamation controversies. All such election cases shall be heard and decided in division,
provided that motions for reconsideration of decisions shall be decided by the Commission en
banc. (Italics ours)

Further, the circumstances obtaining in Bautista v. Comelec35 cited by the OSG in its
Manifestation are similar to those attendant to the instant Petition. In Bautista, the election
officer reported to the Law Department that Bautista was ineligible to run as a candidate by
reason of his being an unregistered voter. The Law Department recommended to the COMELEC
en banc to deny due course or cancel Bautista’s certificate of candidacy. The COMELEC en
banc adopted the recommendation and consequently issued a resolution. In the said case, this
Court discussed the COMELEC en banc’s jurisdiction over petitions for disqualification, for
denial of due course, or cancellation of certificates of candidacy in the following wise:

In Garvida v. Sales, Jr., the Court held that it is the COMELEC sitting in division and not the
COMELEC en banc which has jurisdiction over petitions to cancel a certificate of candidacy.
The Court held:

The Omnibus Election Code, in Section 78, Article IX, governs the procedure to deny due course
to or cancel a certificate of candidacy, viz:

"Sec.78. Petition to deny due course to or cancel a certificate of candidacy.1âwphi1 A verified

petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any
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 filing of the certificate of candidacy and shall be decided, after due notice
and hearing, not later than fifteen days before election."

In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition to deny
due course to or cancel a certificate of candidacy for an elective office may be filed with the Law
Department of the COMELEC on the ground that the candidate has made a false material
representation in his certificate. The petition may be heard and evidence received by any official
designated by the COMELEC after which the case shall be decided by the COMELEC itself.

Under the same Rules of Procedure, jurisdiction over a petition to cancel a certificate of
candidacy lies with the COMELEC sitting in Division, not en banc. Cases before a Division may
only be entertained by the COMELEC en banc when the required number of votes to reach a
decision, resolution, order or ruling is not obtained in the Division. Moreover, only motions to
reconsider decisions, resolutions, orders or rulings of the COMELEC in Division are resolved by
the COMELEC en banc.

xxxx

Under Section 3, Rule 23 of the 1993 COMELEC Rules of Procedure, a petition for the denial or
cancellation of a certificate of candidacy must be heard summarily after due notice. It is thus
clear that cancellation proceedings involve the exercise of the quasi-judicial functions of the
COMELEC which the COMELEC in division should first decide. More so in this case where the
cancellation proceedings originated not from a petition but from a report of the election officer
regarding the lack of qualification of the candidate in the barangay election. The COMELEC en
banc cannot short cut the proceedings by acting on the case without a prior action by a division
because it denies due process to the candidate.36 (Citation omitted and italics ours)

In the case at bar, the COMELEC en banc, through the herein assailed resolutions, ordered
Ibrahim’s disqualification even when no complaint or petition was filed against him yet. Let it be
stressed that if filed before the conduct of the elections, a petition to deny due course or cancel a
certificate of candidacy under Section 78 of the OEC is the appropriate petition which should
have been instituted against Ibrahim considering that his allegedly being an unregistered voter of
Datu Unsay disqualified him from running as Vice-Mayor. His supposed misrepresentation as an
eligible candidate was an act falling within the purview of Section 78 of the OEC. Moreover,
even if we were to assume that a proper petition had been filed, the COMELEC en banc still
acted with grave abuse of discretion when it took cognizance of a matter, which by both
constitutional prescription and jurisprudential declaration, instead aptly pertains to one of its
divisions.

Ibrahim is not estopped from challenging the COMELEC en banc’s jurisdiction to issue the
assailed resolutions.

In Republic v. Bantigue Point Development Corporation,37 we stated:

The rule is settled that lack of jurisdiction over the subject matter may be raised at any stage of
the proceedings. Jurisdiction over the subject matter is conferred only by the Constitution or the
law. It cannot be acquired through a waiver or enlarged by the omission of the parties or
conferred by the acquiescence of the court. Consequently, questions of jurisdiction may be
cognizable even if raised for the first time on appeal.

The ruling of the Court of Appeals that "a party may be estopped from raising such jurisdictional
question if he has actively taken part in the very proceeding which he questions, belatedly
objecting to the court’s jurisdiction in the event that the judgment or order subsequently rendered
is adverse to him" is based on the doctrine of estoppel by laches. We are aware of that doctrine
first enunciated by this Court in Tijam v. Sibonghanoy. In Tijam, the party-litigant actively
participated in the proceedings before the lower court and filed pleadings therein. Only 15 years
thereafter, and after receiving an adverse Decision on the merits from the appellate court, did the
party-litigant question the lower court’s jurisdiction. Considering the unique facts in that case,
we held that estoppel by laches had already precluded the party-litigant from raising the question
of lack of jurisdiction on appeal. In Figueroa v. People, we cautioned that Tijam must be
construed as an exception to the general rule and applied only in the most exceptional cases
whose factual milieu is similar to that in the latter case.38 (Citations omitted and italics ours)

As enunciated above, estoppel by laches can only be invoked in exceptional cases with factual
circumstances similar to those in Tijam.39 In the case now before us, the assailed resolutions
were issued on December 22, 2009 and May 6, 2010. The instant Petition, which now raises,
among others, the issue of the COMELEC en banc’s jurisdiction, was filed on June 3, 2010.
With the prompt filing of the instant Petition, Ibrahim can hardly be considered as guilty of
laches.

Ibrahim was not denied due process.

Interminably, we have declared that deprivation of due process cannot be successfully invoked
where a party was given the chance to be heard on his motion for reconsideration.40
In the case before us, Ibrahim was afforded the chance to file an opposition to the assailed
resolutions. Nonetheless, even if due process was substantially observed, the assailed resolutions
remain null and void for want of authority on the part of the COMELEC en banc to take
cognizance of a matter which should have instead been referred to one of its divisions.

The MBOC has no authority to suspend Ibrahim’s proclamation especially since the herein
assailed resolutions, upon which the suspension was anchored, were issued by the COMELEC en
banc outside the ambit of its jurisdiction.

Mastura v. COMELEC41 is emphatic that:

(T)he board of canvassers is a ministerial body. It is enjoined by law to canvass all votes on
election returns submitted to it in due form. It has been said, and properly, that its powers are
limited generally to the mechanical or mathematical function of ascertaining and declaring the
apparent result of the election by adding or compiling the votes cast for each candidate as shown
on the face of the returns before them, and then declaring or certifying the result so ascertained. x
x x.42 (Italics ours)

The simple purpose and duty of the canvassing board is to ascertain and declare the apparent
result of the voting while all other questions are to be tried before the court or other tribunal for
contesting elections or in quo warranto proceedings.43

In the case at bar, the MBOC motu propio suspended Ibrahim’s proclamation when the issue of
the latter’s eligibility is a matter which the board has no authority to resolve. Further, under
Section 644 of R.A. 6646, the COMELEC and not the MBOC has the authority to order the
suspension of a winning candidates’s proclamation. Such suspension can only be ordered upon
the motion of a complainant or intervenor relative to a case for disqualification, or a petition to
deny due course or cancel a certificate of candidacy pending before the COMELEC, and only
when the evidence of the winning candidate’s guilt is strong. Besides, the COMELEC en banc
itself could not have properly ordered Ibrahim’s disqualification because in taking cognizance of
the matter, it had already exceeded its jurisdiction.

WHEREFORE, IN VIEW OF THE FOREGOING, the instant petition is GRANTED. The

December 22, 2009 and May 6, 2010 Resolutions issued by the COMELEC en banc is
ANNULLED and SET ASIDE. Consequently, the suspension by the MBOC of Ibrahim’s
proclamation on the basis of the herein assailed resolutions is likewise ANNULLED and SET
ASIDE. In the absence of a judgment, order or resolution relative to another action or petition
finally disqualifying Ibrahim, denying due course or cancelling his certificate of candidacy, the
MBOC of Datu Unsay is directed to convene within ten (10) days from receipt hereof and to
proclaim Ibrahim as the duly-elected Vice-Mayor of the said municipality.

EN BANC
HARLIN CASTILLO ABAYON, G.R. No. 181295

Petitioner, Present:

PUNO, C.J.,

QUISUMBING,

YNARES-SANTIAGO,

CARPIO,

AUSTRIA-MARTINEZ,*

CORONA,

CARPIO MORALES,

TINGA,
- versus -
CHICO-NAZARIO,

VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,

BRION, and

PERALTA, JJ.
COMMISSION ON ELECTIONS and Promulgated:
RAUL A. DAZA,

Respondents.
April 2, 2009

x-------------------------------------------------x

DECISION

CHICO-NAZARIO, J.:
 This is a Petition for Certiorari and Prohibition under Rule 65 of the Revised
Rules of Court seeking to set aside the Resolution22[1] dated 28 January 2008 of
the Commission on Elections (COMELEC) en banc in EPC No. 2007-62, which
affirmed the Order dated 8 October 2007 of the COMELEC First Division23[2]
dismissing the election protest of petitioner Harlin Castillo Abayon (Abayon) for
having been filed out of time.

Abayon and respondent Raul Daza (Daza) were candidates for the Office of
Governor of the Province of Nothern Samar during the 14 May 2007
elections.24[3]

On 19 May 2007, Abayon filed a pre-proclamation protest before the

Provincial Board of Canvassers (PBoC) of Northern Samar, docketed as SPC No.
07-037, entitled, IN THE MATTER OF THE PETITION TO EXCLUDE THE
CERTIFICATE[S] OF CANVASS (COC) OF THE MUNICIPALITIES OF CAPUL, ROSARIO
AND BOBONALL IN THE PROVINCE OF NORTHERN SAMAR WHICH WERE
PREPARED UNDER DURESS, THREATS AND INTIMIDATION.25[4]

On 20 May 2007, Daza was proclaimed as the winning candidate having

garnered a total of 101,819 votes against Abayons 98,351 votes, winning by a
margin of 3,468 votes.26[5]

On 21 May 2007, Abayon filed with the COMELEC SPC NO. 07-069, entitled,
PETITION TO EXCLUDE CERTIFICATE OF CANVAS (COC) OF MUNICIPALITY OF
CATUBIG, NORTHERN SAMAR WHICH WAS PREPARED UNDER DURESS, THREATS,
COERCION OR INTIMIDATION.27[6]

On the same day, Abayon filed with the COMELEC two other petitions, IN
THE MATTER OF PETITION TO DECLARE THE PROCLAMATION OF PRIVATE
RESPONDENT [Daza] AS WINNING CANDIDATE FOR THE POSITION OF GOVERNOR
OF NORTHERN SAMAR NULL AND VOID, docketed as SPC No. 07-070, and IN THE
MATTER OF THE PETITION FOR DECLARATION OF FAILURE OF ELECTIONS IN THE
MUNICIPALITIES OF CAPUL, ROSARIO AND BOBON, ALL OF NORTHERN SAMAR,
docketed as SPA No. 07-460.28[7]

On 24 May 2007, Abayon filed with the COMELEC a fifth petition, IN THE
MATTER OF THE PETITION TO DECLARE FAILURE OF ELECTION IN THE
MUNICIPALITY OF CATUBIG, NORTHERN SAMAR, AND FOR THE HOLDING OF
SPECIAL ELECTIONS THEREOF, docketed as SPC No. 07-484.29[8]

On 29 June 2007, Abayon filed with the COMELEC a Petition of Protest,

docketed as EPC No. 2007-62, contesting the election and proclamation of Daza
as Governor of Northern Samar.30[9]
 Of Abayons numerous petitions, three were denied or dismissed. SPC No.
07-069, Abayons petition to exclude from canvass the COC of Catubig, Northern
Samar, was denied by the COMELEC Second Division in a Resolution dated 2 July
2007.31[10] SPC No. 07-484, Abayons petition for the declaration of a failure of
election in the Municipality of Catubig, Northern Samar, and for the holding of
special elections therein, was dismissed by the COMELEC en banc in a Resolution
dated 9 July 2007.32[11] SPA No. 07-460, Abayons petition for the declaration of
failure of elections in the Municipalities of Capul, Rosario and Bobon, in Northern
Samar, was also dismissed by the COMELEC en banc in a Resolution dated 29
January 2008. 33[12]

Abayon was similarly unsuccessful in EPC No. 2007-62, his Petition of

Protest. On 8 October 2007, the COMELEC First Division issued its Order34[13]
dismissing Abayons election protest for having been filed out of time. Under
Section 250 of the Omnibus Election Code,35[14] an election protest should be
filed within 10 days from the date of the proclamation of the results of the
election. Since Daza was proclaimed on 20 May 2007, Abayon had only until 30
May 2007 to file his election protest. However, he filed his election protest only
on 29 June 2007. The COMELEC referred to the case of Villamor v.
COMELEC,36[15] when it declared that in order for a petition for annulment of
proclamation to suspend the period for filing of election protest, it should be
based on a valid pre-proclamation issue. In applying this ruling, it decreed that the
pendency of SPC No. 07-070, Abayons petition for annulment of Dazas
proclamation, did not toll the running of the ten-day period for filing an election
protest. SPC No. 07-070 was based on SPC No. 07-037, Abayons earlier petition
for the exclusion from canvass of the COCs from the Municipalities of Capul,
Rosario and Bobon, Norther Samar, since they were prepared under duress,
threats, and coercion or intimidation, grounds which do not involve proper pre-
proclamation issues. The COMELEC, thus, decreed in its Order dated 8 October
2007 that:

WHEREFORE, premises considered, the instant election protest is hereby

DISMISSED for having been filed out of time.37[16]
 On 10 October 2007, Abayon filed before the COMELEC en banc a Motion
for Reconsideration38[17] of the Order dated 8 October 2007 of the COMELEC
First Division in EPC No. 2007-62.

The COMELEC en banc denied Abayons Motion for Reconsideration in a

Resolution39[18] dated 28 January 2008. It affirmed that the election protest in
EPC No. 2007-62 was belatedly filed. The COMELEC en banc maintained that SPC
No. 07-037 seeking the exclusion from canvass of the COCs from three
municipalities of Northern Samar was based on grounds that were not proper for
a pre-proclamation controversy. SPC No. 07-037 lacked merit and could not have
rendered Dazas proclamation void. Consequently, SPC No. 07-070 in which
Abayon challenged Dazas proclamation on the basis that it was made counting
the votes in the COCs sought to be excluded in SPC No. 07-037 was without merit.
The suspension of the ten-day period for filing an election protest was intended
to ensure that the losing candidate who filed a pre-proclamation case retains the
right to avail himself of an election protest. This rationale presupposes that there
is a valid pre-proclamation controversy; otherwise, such rationale would be
defeated if the ten-day suspension period is applied to a pre-proclamation
contest so manifestly baseless that it cannot prosper. The COMELEC then ruled
that:

WHEREFORE, premises considered, the Commission RESOLVES, as it hereby

RESOLVED, to DENY the instant Motion for Reconsideration. The Resolution of the
Commission (First Division) ordering the dismissal of the case for having been filed out
of time is hereby AFFIRMED.40[19]

On 5 February 2003, Abayon sought remedy from this Court via the present
Petition for Certiorari and Prohibition under Rule 65 of the Revised Rules of Court,
on the basis of the following arguments:

VILLAMOR VS. COMELEC APPLIES ONLY TO THE SPECIFIC INSTANCE WHERE THE BASIS
FOR THE ANNULMENT OF PROCLAMATION IS BY ITS VERY NATURE COULD NOT BE A
GROUND FOR THE ANNULMENT OF PROCLAMATION, LIKE THE ILLEGAL COMPOSITION
OF THE BOARD;

II
 VILLAMOR VS. COMELEC IS AN EXCEPTION TO THE GENERAL RULE THAT (sic) UNDER
SECTION 248 OF THE OMNIBUS ELECTION CODE; HENCE IT SHOULD BE CONSTRUED
STRICTLY; AND

III

THE PROTEST IS SUFFICIENT IN FORM AND SUBSTANCE; HENCE, THE PUBLIC INTEREST
INVOLVED IN DETERMINING THE TRUE WINNER IN THE ELECTION SHOULD BE
PARAMOUNT OVER THE TECHNICAL OBJECTIONS.41[20]

The Court identifies the two main issues in this case to be as follows: (1) whether the mere filing of a
pre-proclamation case, regardless of the issues raised therein, suspends the ten-day period for the
filing of an election protest; and (2) if the answer to the first issue is in the negative, whether the
election protest which is untimely filed may still be considered by the COMELEC.

Section 250 of the Omnibus Election Code fixes the period within which to
file an election contest for provincial offices at ten days after the proclamation of
the election results, to wit:

Section 250. Election contests for Batasang Pambansa, regional, provincial and city
offices. - A sworn petition contesting the election of any Member of the Batasang
Pambansa or any regional, provincial and city official shall be filed with the Commission
by any candidate who has duly filed a certificate of candidacy and has been voted for
the same office, within ten days after the proclamation of the results of the election.
However, this ten-day period may be suspended, as Section 248 of the Omnibus
Election Law provides:

Section 248. Effect of filing petition to annul or to suspend the proclamation.-- The filing
with the Commission of a petition to annul or to suspend the proclamation of any
candidate shall suspend the running of the period within which to file an election
protest or quo warranto proceedings.

In Dagloc v. Commission on Elections,42[21] this Court clarified that the

petition to annul or to suspend the proclamation, which Section 248 refers to,
and which suspends the running of the period within which to file the election
protest or quo warranto proceedings, must be a pre-proclamation controversy.
The Court, thus, decreed in the same case that a petition for the declaration of
failure of election was not a pre-proclamation controversy and, therefore, did not
suspend the running of the reglementary period within which to file an election
protest or quo warranto proceedings.

In this case, it is worthy to reiterate that on 20 May 2007, Daza was already
proclaimed the winning candidate for the Office of Governor of the Province of
Nothern Samar in the 14 May 2007 elections. Abayon had until 30 May 2007 to
file his election protest. Yet, he filed EPC No. 2007-62, his Petition of Protest only
on 29 June 2007, or almost 40 days after Dazas proclamation.

The Court scrutinized the petitions filed by Abayon in the present case to
determine if any of them suspended the ten-day period for the filing of an
election protest.

SPA No. 07-460 and SPA No. 07-484, which are petitions for the declaration
of failure of elections in the Municipalities of Capul, Rosario, Bolon, and Catubig,
Northern Samar, cannot suspend the ten-day period for filing an election protest,
per the ruling of the Court in Dagloc. Abayon also readily admits that SPC No. 07-
069, a petition for the exclusion from canvass of the COC from the Municipality of
Catubig, had been previously resolved and denied by the COMELEC.43[22]

Abayon, however, maintains that SPC No. 07-037, a petition for the
exclusion from canvass of the COCs from the Municipalities of Capul, Rosario, and
Bobon, Northern Samar; and SPC No. 07-070, a petition to annul the
proclamation of Daza, both effectively suspended the running of the period to file
EPC No. 2007-62, his election protest. As regards particularly SPC No. 07-037,
Abayon asserts that it is a pre-proclamation case.
 Abayons position is untenable.

Jurisprudence makes it clear that the mere filing of a petition denominated

as a pre-proclamation case or one seeking the annulment of a proclamation will
not suspend the ten-day period for filing an election protest. It is required that
the issues raised in such a petition be restricted to those that may be properly
included therein.

The Court pronounced in Dagloc,44[23] and quoted in Villamor v.

Commission on Elections,45[24] that:

Not all actions seeking the annulment of proclamation suspend the running of the
period for filing an election protest or a petition for quo warranto. For it is not the relief
prayed for which distinguishes actions under [Section] 248 from an election protest or
quo warranto proceedings, but the grounds on which they are based. (Emphasis ours.)
 The grounds that must support a pre-proclamation controversy are limited
by the Omnibus Election Code to the following:

Section 243. Issues that may be raised in pre-proclamation controversy.The following

shall be proper issues that may be raised in a pre-proclamation controversy:

(a) Illegal composition or proceedings of the board of canvassers;

(b) The canvassed election returns are incomplete, contain material defects, appear to
be tampered with or falsified, or contain discrepancies in the same returns or in other
authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code;

(c) The election returns were prepared under duress, threats, coercion, or intimidation,
or they are obviously manufactured or not authentic; and

(d) When substitute or fraudulent returns in controverted polling places were

canvassed, the results of which materially affected the standing of the aggrieved
candidate or candidates.

The enumeration is restrictive and exclusive. Thus, in the absence of any

clear showing or proof that the election returns canvassed are incomplete or
contain material defects; appear to have been tampered with, falsified or
prepared under duress; and/or contain discrepancies in the votes credited to any
candidate, which would affect the result of the election, a petition cannot be
properly considered as a pre-proclamation controversy. 46[25]

The purpose of a pre-proclamation controversy is to ascertain the winner or

winners in the election on the basis of the election returns duly authenticated by
the board of inspectors and admitted by the board of canvassers. It is a well-
entrenched rule that the Board of Canvassers and the COMELEC are not to look
beyond or behind electoral returns. A pre-proclamation controversy is summary
in nature. It is the policy of the election law that pre-proclamation controversies
be summarily decided, consistent with the laws desire that the canvass and
proclamation be delayed as little as possible. There is no room for the
presentation of evidence aliunde, the inspection of voluminous documents, and
for meticulous technical examination. That is why such questions as those
involving the appreciation of votes and the conduct of the campaign and
balloting, which require more deliberate and necessarily longer consideration, are
left for examination in the corresponding election protest.47[26]

The COMELEC First Division herein found, and Abayon never disputed
before the COMELEC or this Court, that SPC No. 07-037, his petition for exclusion
from canvass of the COCs from three municipalities in Northern Samar, was based
on the grounds quoted hereunder:

[T]he petition for annulment of proclamation was based on an unresolved petition for
exclusion from the canvass of three certificates of canvass on the ground that they were
allegedly prepared under duress, threats, coercion or intimidation as shown by the
following circumstances:

1. a voter was forcibly taken by members of the Philippine Army;

2. a political leader was killed;

3. threats which prevented the holding of campaign sorties or rallies;

4. vote buying; threats and intimidation on voters;

5. alleged missing certificate of canvass; and

6. a wife of a BEI member was seen going in and out of the polling
precinct under suspicious circumstances. 48[27]
 None of the aforementioned circumstances fall under the enumeration of
issues that may be raised in a pre-proclamation controversy. Abayon
acknowledges that SPC No. 07-037 does not involve the illegal composition of the
board of canvassers.49[28] Not any of these circumstances involves defects or
irregularities apparent from the physical examination of the election returns. The
alleged abduction of a voter, the killing of a political leader, the threats which
prevented the holding of the campaign sorties, and the intimidation of voters, are
acts of terrorism which are properly the subject of an election protest, but not of
a pre-proclamation controversy. Precisely, in Dipatuan v. Commission on
Elections,50[29] the Court held that massive vote-buying, like the allegation of
bribery evidenced by the suspicious presence of the wife of a Board of Election
Inspectors (BEI) member, was a proper ground for an election protest, but not for
a pre-proclamation controversy.

Since SPC No. 07-037 did not qualify as a pre-proclamation controversy, it

could not have suspended the ten-day statutory period for the filing of an election
protest.
 Bereft of any legal basis, SPC No. 07-070, Abayons petition to annul the
proclamation of Daza, likewise, could not have suspended the period for the filing
of an election protest. In SPC No. 07-070, Abayon questioned the validity of the
proclamation of [Daza] despite the pendency of a pre-proclamation controversy,
SPC No. 07-037, which questioned the inclusion of three municipal certificates of
canvass.51[30] Abayon posited that Dazas proclamation was void under Section
20(i) of Republic Act No. 7166, hereunder reproduced:

Section 20. Procedure in Disposition of Contested Election Returns.

xxxx

(i) The board of canvassers shall not proclaim any candidate as winner unless authorized
by the Commission after the latter has ruled on the object brought to it on appeal by the
losing party. Any proclamation made in violation hereof shall be void ab initio, unless
the contested returns will not adversely affect the results of the election.

To begin with, as this Court already ruled herein, SPC No. 07-037 was not a
pre-proclamation case that should defer the proclamation of Daza during its
pendency.
 More importantly, the procedure under Section 20 of Republic Act No.
7166 applies only to valid pre-proclamation contests. The first part of Section 20,
particularly paragraph (a), actually states that:

Section 20. Procedure in Disposition of Contested Election Returns.

a) Any candidate, political party or coalition of political parties contesting the

inclusion or exclusion in the canvass of any election returns on any of the grounds
authorized under Article XX or Sections 234, 235 and 236 of Article XIX of the Omnibus
Election Code shall submit their oral objection to the chairman of the board of
canvassers at the time the questioned return is presented for inclusion in the canvass.
Such objection shall be recorded in the minutes of the canvass. [Emphasis ours.]

It bears to point out that under Section 20(a) of Republic Act No. 7166,
election returns may be contested on any of the grounds recognized under Article
XX, and Sections 234, 235, and 236 of the Omnibus Election Code. Sections 234,
235, and 236 of the Omnibus Election Code are the very same grounds for a pre-
proclamation controversy recognized under Section 243(b) of the Omnibus
Election Code, which reads: The canvassed election returns are incomplete,
contain material defects, appear tampered with or falsified, or contain
discrepancies in the same returns or in other authentic copies thereof as
mentioned in Sections 233, 234, 235 and 236. On the other hand, Article XX
entitled Pre-Proclamation Controversies is unequivocal about the kind of petition
discussed therein. Section 20 (i) of Republic Act No. 7166 is part of the procedure
undergone by a valid pre-proclamation contest. Hence, Abayon cannot seek the
annulment of Dazas proclamation, where no valid pre-proclamation contest was
filed.

SPC No. 07-070 sought the annulment of Dazas proclamation and was
necessarily filed after the said proclamation. Clearly it is not a pre-proclamation
case. Moreover, it is based on a legally implausible ground--the COMELECs failure
to resolve SPC No. 07-037. Under Section 16 of Republic Act No. 7166,52[31] pre-
proclamation cases which are unresolved at the beginning of the term of the
winning candidate are automatically terminated. The COMELEC is not obligated to
resolve each and every pre-proclamation case. Since SPC No. 07-070 is apparently
not a pre-proclamation contest and it is based on a legal argument which
contradicts the law, this Court cannot possibly accord it the effect of suspending
the statutory period for the filing of an election protest.

To reiterate, the circumstances pointed out by Abayon in SPC No. 07-037

are proper grounds for an election protest, not a pre-proclamation controversy. In
fact, had Abayon timely filed an election protest, bearing the same allegations
and raising identical issues, it would have been given due course. Instead, Abayon
repeatedly insisted on pursuing remedies which were not available to him given,
the circumstances alleged in his petitions.
 Abayons assertion that Villamor v. Commission on Elections53[32] should
not be applied to his case, because of the difference in the factual backgrounds of
the two cases, is unconvincing. In Villamor, the petition to annul the proclamation
was based on the purported illegal composition of the municipal board of
canvassers, a fact that could have constituted a pre-proclamation controversy.
However, since the petition therein was belatedly filed, after the proclamation of
the winning candidate, the Court ruled that it still could not suspend the period
for filing an election protest. Even the factual background in Dagloc is not on all
fours with the present case, for it involved a petition for the declaration of failure
of elections, which was adjudged not to be a pre-proclamation case. In the case
presently before this Court, Abayon argues that the period for filing his election
protest was suspended by his previous filing of SPC No. 07-037, a petition to
exclude from canvass the COCs from three municipalities of Northern Samar; and
SPC No. 07-070, a petition to annul Dazas proclamation.

Despite the aforementioned differences between the facts of Villamor and

Dagloc vis--vis the case at bar, the Court finds the same to be actually irrelevant,
and should not detract this Court from applying the wisdom of its ruling in its two
decided cases to the one at bar. It is clear from Villamor and Dagloc that, as
provided under Section 248 of the Omnibus Election Code, the period within
which an election protest must be filed could only be suspended upon the filing of
a pre-proclamation case based on any of the grounds enumerated under Section
243 of the same Code. Petitions based upon grounds other than those so
identified under Section 243, even if they seek to annul the proclamation, will not
suspend the period for filing the election protest.

Section 248 of the Omnibus Election Code, allowing a pre-proclamation

case to suspend the period for filing the election protest, was clearly intended to
afford the protestant the opportunity to avail himself of a remedy to its fullest
extent; in other words, to have his pre-proclamation case resolved, without the
pressure of having to abandon it in order to avail himself of other remedies. It
protects the right of the protestant to still file later on an election protest on
grounds that he could not raise in, or only became apparent after his filing of, a
pre-proclamation case. Section 248 is not to be used as a justification for the
irresponsible filing of petitions, which on their face are contrary to the provisions
of election laws and regulations, and which only serve to delay the filing of proper
remedies and clog the dockets of the COMELEC and the courts.

The processes of the adjudication of election disputes should not be

abused. By their very nature and given the public interest involved in the
determination of the results of an election, the controversies arising from the
canvass must be resolved speedily; otherwise, the will of the electorate would be
frustrated. And the delay brought about by the means resorted to by petitioner is
precisely the very evil sought to be prevented by election laws and the relevant
jurisprudence.54[33]

It bears enucleation that the rule prescribing the ten-day period for the
filing of an election protest is mandatory and jurisdictional; and the filing of an
election protest beyond the period deprives the court of jurisdiction over the
protest. Violation of this rule should not be taken lightly, nor should it be brushed
aside as a mere procedural lapse that can be overlooked. This is not a mere
technicality but an essential requirement, the non-compliance with which would
oust the court of jurisdiction over the case.55[34]

The cases cited by Abayon in support of his present Petition are not in
point. Saquilayan v. Commission on Elections56[35] does not involve delay in filing
an election protest, but rather the wrongful manner in which the allegations were
made in the protest. Respondent therein filed an election protest, which failed to
specifically mention the precincts where widespread election fraud and
irregularities supposedly occurred, as well as where and how these occurrences
took place. The Court, nevertheless, allowed the election protest to proceed,
taking into account the then recent case Miguel v. Commission on Elections,57[36]
which was also invoked by Abayon. Respondent in Miguel filed a timely election
protest, wherein he made general allegations of fraud and irregularities in the
conduct of the electoral exercise. Petitioner therein insisted that a preliminary
hearing on the particulars of the alleged fraud and irregularities must be
conducted before the ballots were opened. The Court ruled in favor of the
respondent and held that the opening of the ballot boxes would ascertain, with
the least amount of protracted delay, the veracity of fraud and irregularities.

While there is merit in allowing an election protest to proceed in order to

ascertain the allegations of massive fraud and irregularities which tend to defeat
the electorates will, one must also keep sight of jurisdictional requirements such
as the period within which to file the protest. Otherwise, election disputes would
drag on, and the political stability which the election rules seek to preserve will be
vulnerable to challenges even beyond a reasonable period of time. In this case,
Abayon failed to give this Court a justification for the delay in filing his election
protest, apart from his reliance on the argument that the manifestly invalid pre-
proclamation case he filed suspended the period for the filing of his election
protest.
 In a special civil action for certiorari, the burden is on the part of the
petitioner to prove not merely reversible error, but grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the public respondent
issuing the impugned order. Grave abuse of discretion means a capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction.58[37] In the
present case, the COMELEC did not gravely abuse its discretion. Rather, it decided
the matter in accordance with the prevailing laws and jurisprudence. The
conclusion of the COMELEC on a matter decided within its competence is entitled
to utmost respect.59[38]

WHEREFORE, the instant appeal is DISMISSED. The Resolution dated 28

January 2008 of the COMELEC en banc, affirming the Resolution dated 8 October
2007 of the COMELEC Second Division, is AFFIRMED.

The election protest filed by Abayon is DISMISSED for having been filed out of
time. Costs against petitioner.