1.) LANOT vs COMELEC G.R. No. 164858, November 16, 2006 No. There is no basis to disqualify Eusebio.
No. There is no basis to disqualify Eusebio. Director Ladra recommended the disqualification of
DOCTRINE: Acts committed by Eusebio prior to his being a "candidate" on 23 March 2004, even if
constituting election campaigning or partisan political activities, are not punishable under Section
80 of the Omnibus Election Code. Such acts are protected as part of freedom of expression of a
citizen before he becomes a candidate for elective public office.
FACTS:
On 19 March 2004, Henry P. Lanot, et al,. filed a petition for disqualification8 under Sections 68
and 80 of the Omnibus Election Code against Eusebio before the COMELEC. Lanot, Obispo, and
Eusebio were candidates for Pasig City Mayor. Petitioners alleged that Eusebio engaged in an
election campaign in various forms on various occasions outside of the designated campaign
period, such as (1) addressing a large group of people during a medical mission sponsored by the
Pasig City government; (2) uttering defamatory statements against Lanot; (3) causing the
publication of a press release predicting his victory; (4) installing billboards, streamers, posters,
and stickers printed with his surname across Pasig City; and (5) distributing shoes to
schoolchildren in Pasig public schools to induce their parents to vote for him.
The ruling of the regional director on May 2004, recommends that the instant petition
be granted, pursuant to section 68 (a) and (e) of the omnibus election code, the
respondent Vicente p. Eusebio is disqualified to run for the position of mayor, Pasig city for
violation of section 80 of the omnibus election code.
In its 5 May 2004 resolution, the COMELEC First Division ordered the pertinent election officials
to delete and cancel Eusebio’s name from the certified list of Pasig City mayoral candidates, not
to count votes cast in Eusebio’s favor, and not to include votes cast in Eusebio’s favor in the
canvass of election returns. Eusebio filed a motion for reconsideration of the resolution on 9 May
2004. Hence, COMELEC Chairman Abalos issued a memorandum on 10 May 2004 which enjoined
the pertinent election officials from implementing the 5 May 2004 resolution. In a Resolution
dated 11 May 2004, the COMELEC En Banc subsequently ratified and adopted Chairman Abalos’
10 May 2004 memorandum when it denied Lanot’s motion to suspend the counting of votes and
canvassing of election returns.
Lanot claims that Chairman Abalos whimsically grabbed the adjudicatory power of the COMELEC
En Banc when he issued the 10 May 2004 memorandum. Lanot asserts that the last sentence in
the dispositive portion of the COMELEC First Division’s 5 May 2004 Resolution, "[t]his Resolution
is immediately executory unless restrained by the Commission En Banc," should have prevented
Chairman Abalos from acting on his own.
ISSUE: Whether or not Eusebio violated Section 80 of the Omnibus Election Code?
HELD:
1
Eusebio "for violation of Section 80 of the Omnibus Election Code." The COMELEC First Division
approved Director Ladra's recommendation and disqualified Eusebio
Acts committed by Eusebio prior to his being a "candidate" on 23 March 2004, even if
constituting election campaigning or partisan political activities, are not punishable under Section
80 of the Omnibus Election Code. Such acts are protected as part of freedom of expression of a
citizen before he becomes a candidate for elective public office. Acts committed by Eusebio on or
after 24 March 2004, or during the campaign period, are not covered by Section 80 which
punishes only acts outside the campaign period.
The 14 February 2004 and 17 March 2004 speeches happened before the date Eusebio is
deemed to have filed his certificate of candidacy on 23 March 2004 for purposes other than the
printing of ballots. Eusebio, not being a candidate then, is not liable for speeches on 14 February
2004 and 17 March 2004 asking the people to vote for him.
They also presented Certification issued by Mr. Diego Cagahastian, News Editor of Manila
Bulletin dated 10 March 2004 and Mr. Isaac G. Belmonte, Editor-in-Chief of Philippine Star dated
March 2, 2004 to the effect that the articles in question came from the camp of [Eusebio].
Eusebio is not liable for this publication which was made before he became a candidate on 23
March 2004.
Eusebio became a "candidate," for purposes of Section 80 of the Omnibus Election Code, only on
23 March 2004, the last day for filing certificates of candidacy. Applying the facts - as found by
Director Ladra and affirmed by the COMELEC First Division - to Section 11 of RA 8436, Eusebio
clearly did not violate Section 80 of the Omnibus Election Code which requires the existence of a
"candidate," one who has filed his certificate of candidacy, during the commission of the
questioned acts.
By definition, the election offense in Section 80 of the Omnibus Election Code cannot be
committed during the campaign period. On the other hand, under Eusebio's theory, unlawful
acts applicable to a candidate cannot be committed outside of the campaign period. The net
result is to make the election offense in Section 80 physically impossible to commit at any time.
We shall leave this issue for some other case in the future since the present case can be resolved
without applying the proviso in Section 11 of RA 8436.
Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy is to
give ample time for the printing of official ballots.
Under Section 3(b) of the Omnibus Election Code, the applicable law prior to RA 8436, the
campaign period for local officials commences 45 days before election day. For the 2004 local
elections, this puts the start of the campaign period on 24 March 2004. This also puts the last day
for the filing of certificate of candidacy, under the law prior to RA 8436, on 23 March 2004.
Eusebio is deemed to have filed his certificate of candidacy on this date for purposes other than
the printing of ballots because this is the interpretation of Section 80 of the Omnibus Election failure of election can be declared.7 Since voting was actually conducted in the contested
Code most favorable to one charged of its violation. precincts, there was no basis for the petition.

Eusebio clearly did not violate Section 80 of the Omnibus Election Code which requires the
existence of a "candidate," one who has filed his certificate of candidacy, during the commission
of the questioned acts.
3.) MITMUG vs. COMELEC
3. SPA No 92-368: On 20 June 1992, private respondent filed another petition, this time seeking
to exclude from the counting the ballots cast in six (6) precincts on the ground that the integrity
of the ballot boxes therein was violated.8Again, on 14 July 1992, COMELEC considered the
petition moot, as the issue raised therein was related to that of SPA No. 92-311 which on 9 July
1992 was already set aside as moot.9

4. SPA No. 92-347: On 1 July 1992, Datu Bagato Khalid Lonta, a fourth mayoralty candidate, filed
The turnout of voters during the 11 May 1992 election in Lumba-Bayabao, Lanao del Sur, was
a petition which in the main sought the declaration of failure of election in all sixty-seven (67)
abnormally low. As a result, several petitions were filed seeking the declaration of failure of
precincts of
election in precincts where less than 25% of the electorate managed to cast their votes. But a
Lumba-Bayabao, Lanao del Sur, on the ground of massive disenfranchisement of voters. 10 On 9
special election was ordered in precincts where no voting actually took place. The Commission
July 1992, COMELEC dismissed the petition, ruling that the allegations therein did not support a
on Elections (COMELEC) ruled that for as long as the precincts functioned and conducted actual
case of failure of election.11
voting during election day, low voter turnout would not justify a declaration of failure of election.
We are now called upon to review this ruling.
On 8 July 1992, petitioner filed a motion to intervene in these four (4) petitions. 12 But COMELEC
treated the same as a motion for reconsideration and promptly denied it considering that under
Petitioner SULTAN MOHAMAD L. MITMUG and private respondent DATU GAMBAI DAGALANGIT
the COMELEC Rules of Procedure such motion was a prohibited pleading. 13
were among the candidates for the mayoralty position of Lumba-Bayabao during the 11 may
1992 election. There were sixty-seven (67) precincts in the municipality.
Thereafter, a new board of Election Inspectors was formed to conduct the special election set for
25 July 1992. Petitioner impugned the creation of this Board. Nevertheless, on 30 July 1992, the
As was heretofore stated, voter turnout was rather low, particularly in forty-nine (49) precincts
new Board convened and began the canvassing of votes. Finally, on 31 July 1992, private
where the average voter turnout was 22.26%, i.e., only 2,330 out of 9,830 registered voters
respondent was proclaimed the duly elected Mayor of Lumba-Bayabao, Lanao del Sur.
therein cast their votes. Five (5) of these precincts did not conduct actual voting at all.1

On 3 August 1992, petitioner instituted the instant proceedings seeking the declaration of failure
Consequently, COMELEC ordered the holding of a special election on 30 May 1992 in the five (5)
of election in forty-nine (49) precincts where less than a quarter of the electorate were able to
precincts which failed to function during election day. On 30 July 1992 another special election
cast their votes. He also prayed for the issuance of a temporary restraining order to enjoin
was held for a sixth precinct.2
private respondent from assuming office.

In the interim, petitioner filed a petition seeking the annulment of the special election conducted
On 10 August 1992, petitioner lodged an election protest with the Regional trial Court of Lanao
on 30 May 1992 alleging various irregularities such as the alteration, tampering and substitution
del Sur disputing the result not only of some but all the precincts of Lumba-Bayabao, del Sur. 14
of ballots. But on 13 July 1992, COMELEC considered the petition moot since the votes in the
subject precincts were already counted.3
Respondents, on the other hand, assert that with the filing of an election protest, petitioner is
already deemed to have abandoned the instant petition.
Other petitions seeking the declaration of failure of election in some or all precincts of Lumba-
Bayabao were also filed with COMELEC by other mayoralty candidates, to wit:
It may be noted that when petitioner filed his election protest with the Regional Trial Court of
Lanao del Sur, he informed the trial court of the pendency of these proceedings. Paragraph 3 of
1. SPA No. 92-324: On 6 June 1992, private respondent Datu Gamba Dagalangit filed an urgent
his protest states "[T]hat on August 3, 1992, your protestant filed a Petition for Certiorari with
petition praying for the holding of a special election in Precinct No. 22-A alleging therein that
the
when the ballot box was opened, ballots were already torn to pieces. On 14 July 1992, the
Supreme Court . . . docketed as G.R. No. 106270 assailing the validity of the proclamation of the
petition was granted and a special election for Precinct No. 22-A was set for 25 July 1992.4
herein protestee. . . ." 15 Evidently, petitioner did not intend to abandon his recourse with this
Court. On the contrary, he intended to pursue it. Where only an election protest ex abundante
2. SPC No. 92-336: On 16 June 19992, Datu Elias Abdusalam, another mayoralty candidate, filed a ad cautela is filed, the Court retains jurisdiction to hear the petition seeking to annul an
petition to declare failure of election in twenty-nine (29) more precincts as a result of alleged election. 16
tampering of ballots5 and clustering of precincts.6 On 16 July 1992, the petition was dismissed.
COMELEC ruled that there must be a situation where there is absolute inability to vote before a

2
The main issue is whether respondent COMELEC acted with grave abuse of discretion amounting
to lack of jurisdiction in denying motu proprio and without due notice and hearing the petitions
seeking to declare a failure of election in some or all of the precincts in Lumba-Bayabao, Lanao
del Sur. After all, petitioner argues, he has meritorious grounds in support thereto, viz., the
massive disenfranchisement of voters due to alleged terrorism and unlawful clustering of
precincts, which COMELEC should have at least heard before rendering its judgment.
Incidentally, a petition to annul an election is not a pre-proclamation controversy. Consequently,
the proclamation of a winning candidate together with his subsequent assumption of office is not
an impediment to the prosecution of the case to its logical conclusion.17
Under the COMELEC Rules of Procedure, within twenty-four (24) hours from the filing of a
verified petition to declare a failure to elect, notices to all interested parties indicating therein
the date of hearing should be served through the fastest means available. 18 The hearing of the
case will also be summary in nature.19
Based on the foregoing, the clear intent of the law is that a petition of this nature must be acted
upon with dispatch only after hearing thereon shall have been conducted. Since COMELEC
denied the other petitions 20 which sought to include forty-three (43) more precincts in a special
election without conducting any hearing, it would appear then that there indeed might have
been grave abuse of discretion in denying the petitions.
However, a closer examination of the COMELEC Rules of Procedure, particularly Sec. 2, Rule 26,
thereof which was lifted from Sec. 6, B.P. 881, otherwise known as the Omnibus Election Code of
the Philippines, indicates otherwise. It reads —
Sec. 2. Failure of election. — If, on account of force majeure, violence,
terrorism, fraud or other analogous causes the election in any precinct has
not been held on the date fixed, or had been suspended before the hour
fixed by law for the closing of the voting, or after the voting and during the
preparation and the transmission of the election returns or in the custody of
canvass thereof, such election results in a failure to elect, and in any of such
cases the failure or suspension of election would affect the result of the
election, the Commission shall, on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or
continuation of the election not held, suspended or which resulted in a
failure to elect on a date reasonably close to the date of the election not
held, suspended or which resulted in a failure to elect but not later than
thirty (30) days after the cessation of the cause of such postponement or
suspension of the election or failure to elect.
Before COMELEC can act on a verified petition seeking to declare a failure of election, two (2)
conditions must concur: first, no voting has taken place in the precinct or precincts on the date
fixed by law or, even if there was voting, the election nevertheless results in failure to elect;
and, second, the votes not cast would affect the result of the election. 21
In the case before us, it is indubitable that the votes not cast will definitely affect the outcome of
the election. But, the first requisite is missing, i.e., that no actual voting took place, or even if
3
there is, the results thereon will be tantamount to a failure to elect. Since actual voting and
election by the registered voters in the questioned precincts have taken place, the results
thereof cannot be disregarded and excluded. 22 COMELEC therefore did not commit any abuse of
discretion, much less grave, in denying the petitions outright. There was no basis for the petitions
since the facts alleged therein did not constitute sufficient grounds to warrant the relief sought.
For, the language of the law expressly requires the concurrence of these conditions to justify the
calling of a special election. 23
Indeed, the fact that a verified petition is filed does not automatically mean that a hearing on the
case will be held before COMELEC will act on it. The verified petition must still show on its face
that the conditions to declare a failure to elect are present. In the absence thereof, the petition
must be denied outright.
Considering that there is no concurrence of the two (2) conditions in the petitions seeking to
declare failure of election in forty-three (43) more, precincts, there is no more need to receive
evidence on alleged election irregularities.
Instead, the question of whether there have been terrorism and other irregularities is better
ventilated in an election contest. These irregularities may not as a rule be invoked to declare a
failure of election and to disenfranchise the electorate through the misdeeds of a relative
few. 24 Otherwise, elections will never be carried out with the resultant disenfranchisement of
innocent voters as losers will always cry fraud and terrorism.
There can be failure of election in a political unit only if the will of the majority has been defiled
and cannot be ascertained. But, if it can be determined, it must be accorded respect. After all,
there is no provision in our election laws which requires that a majority of registered voters must
cast their votes. All the law requires is that a winning candidate must be elected by a plurality of
valid votes, regardless of the actual number of ballots cast. 25 Thus, even if less than 25% of the
electorate in the questioned precincts cast their votes, the same must still be respected. There
is prima facie showing that private respondent was elected through a plurality of valid votes of a
valid constituency.
WHEREFORE, there being no grave abuse of discretion, the Petition for Certiorari is DISMISSED.
SO ORDERED.
4.) MACABAGO vs. COMELEC
On May 22, 2001, petitioner Sabdullah T. Macabago was proclaimed by the Municipal
Board of Canvassers as the winning candidate for the position of Municipal Mayor of Saguiran,
Lanao del Sur. Petitioner had a lead of 198 votes over his adversary, private respondent Jamael
M. Salacop.
On June 1, 2001, private respondent filed a petition with the Commission on Elections
(COMELEC) against petitioner and the proclaimed Vice-Mayor and Municipal Councilors, as well
as the members of the Municipal Board of Canvassers, docketed as SPC-01-234, to annul the
elections and the proclamation of candidates in the Municipality of Saguiaran, Lanao del
Sur.Private respondent alleged that there was a massive substitution of voters, rampant and
pervasive irregularities in voting procedures in Precincts Nos. 19, 20, 28 and 29, and a failure of
the Board of Election Inspectors (BEI) to comply with Sections 28 and 29 of Comelec Resolution
No. 3743 and Section 193 of the Omnibus Election Code, thus rendering the election process in
those precincts a sham and a mockery and the proclamation of the winning candidates a
nullity. Private respondent further averred that if his petition were to be given due course, he
would win by a margin of one hundred ninety-four (194) votes over the votes of petitioner. He
thus prayed:
WHEREFORE, foregoing premises considered, it is most respectfully prayed of this Honorable
Commission that the election results in Precincts 19, 20, 28 and 29 be ordered set aside and
considered excluded and the proclamation of the winning candidates in the said municipality be
ANNULLED to reflect the genuine desire of the majority of the people.
All other reliefs, deemed just and equitable under the circumstances are likewise prayed for.[1]
In support of his petition, private respondent appended thereto photocopies of random
Voters Registration Records (VRRs) evidencing the fraud and deceit that allegedly permeated the
electoral process, as well as affidavits tending to prove that serious irregularities were committed
in the conduct of the elections in the subject precincts. [2]
In his answer, petitioner denied the truth of the material allegations in the petition and
averred that it raised a pre-proclamation controversy. He further alleged that the grounds relied
upon by private respondent would be proper in an election protest but not in a pre-proclamation
controversy.[3]
The COMELEC En Banc took cognizance of the petition and on February 11, 2002, issued an
order directing the Election Officer of Saguiran, Lanao del Sur, to bring to and produce before the
COMELEC Office in Manila the original VRRs of the questioned precincts for technical
examination:
WHEREFORE, premises considered, the Commission hereby RESOLVES to direct Mr. Ibrahim M.
Macadato, the Election Officer of Saguiran, Lanao del Sur to produce the subject original VRRs of
the questioned precincts here in Manila for the appertaining technical examination.
SO ORDERED.[4]
In the same order, the COMELEC declared that contrary to petitioners claims, the petition
did not allege a pre-proclamation controversy. The Commission characterized the petition as one
for the annulment of the election or declaration of failure of election in the municipality, a
special action covered by Rule 26 of the COMELEC Rules of Procedure. Accordingly, the COMELEC
set aside the docketing of the petition as a Special Case (SPC) and ordered the redocketing
thereof as a Special Action (SPA). After its examination of the evidence submitted by petitioner,
the COMELEC concluded that there was convincing proof of massive fraud in the conduct of the
elections in the four (4) precincts that necessitated a technical examination of the original copies
of the VRRs and their comparison with the voters signatures and fingerprints. The COMELEC
further noted that since the lead of Macabago was only 124 votes vis--visthe 474 voters of the
contested precincts, the outcome of the petition would adversely affect the result of the
elections in the Municipality. In issuing said Order, the COMELEC relied on its broad powers
4
under the 1987 Constitution and the pronouncement of this Court in Pantaleon Pacis vs.
Commission on Elections,[5] and Tupay Loong vs. Commission on Elections, et al.[6]
Forthwith, petitioner filed with this Court the instant special civil action for certiorari under
Rule 65 of the 1997 Rules of Civil Procedure, as amended, praying for the reversal of the
February 11, 2002 order of the COMELEC En Banc. Petitioner alleged that:
6.1. PUBLIC RESPONDENT COMELEC EN BANC COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT TOOK COGNIZANCE OF AND
PASSED UPON THE PETITION IN SPC NO. 01-234 IN VIOLATION OF SECTION 3, RULE 3 OF THE
COMELEC RULES OF PROCEDURE.
6.2. PUBLIC RESPONDENT COMELEC EN BANC COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT ISSUED ITS ORDER ON
FEBRUARY 11, 2002 FOR THE TECHNICAL EXAMINATION OF THE VOTERS REGISTRATION
RECORDS OF THE REGISTERED VOTERS OF PRECINCT NOS. 19, 20, 28 & 29 OF THE MUNICIPALITY
OF SAGUIARAN, LANAO DEL SUR.[7]
The kernel issues posed in the case at bar are (a) whether petitioners recourse to this Court
under Rule 65 of the 1997 Rules of Civil Procedure, as amended, is in order; and (b) whether the
COMELEC acted without jurisdiction or committed a grave abuse of its discretion amounting to
excess or lack of jurisdiction in taking cognizance of the petition of private respondent and in
issuing the assailed Order.
On the first issue, petitioner avers that he was impelled to file the instant petition without
first filing with the COMELEC a motion for a reconsideration of its order because under the
COMELEC Rules of Procedure, a motion for a reconsideration of an interlocutory order of the
COMELEC En Banc is a prohibited pleading, and that the COMELEC acted with grave abuse of
discretion amounting to excess or lack of jurisdiction in issuing the assailed order. Private
respondent on the other hand insists that under Rule 64 of the 1997 Rules of Civil Procedure, a
special civil action for certiorari filed with this Court is proper only for the nullification of a final
order or resolution of the COMELEC and not of its interlocutory order or resolution such as the
assailed order in this case.
Section 1, Rule 64, as amended, reads:
SECTION 1. Scope. This Rule shall govern the review of judgments and final orders or resolutions
of the Commission on Elections and the Commission on Audit. [8]
Under Section 2 of the same Rule, a judgment or final order or resolution of the COMELEC
may be brought by the aggrieved party to this Court on certiorari under Rule 65, as amended,
except as therein provided. We ruled in Elpidio M. Salva, et al. vs. Hon. Roberto L. Makalintal, et
al.[9] that Rule 64 of the Rules applies only to judgments or final orders of the COMELEC in the
exercise of its quasi-judicial functions. The rule does not apply to interlocutory orders of the
COMELEC in the exercise of its quasi-judicial functions or to its administrative orders. In this case,
the assailed order of the COMELEC declaring private respondents petition to be one for
annulment of the elections or for a declaration of a failure of elections in the municipality and
ordering the production of the original copies of the VRRs for the technical examination is
administrative in nature.[10] Rule 64, a procedural device for the review of final orders,
resolutions or decision of the COMELEC, does not foreclose recourse to this Court under Rule 65
from administrative orders of said Commission issued in the exercise of its administrative
function.[11]
It bears stressing that under Article VIII, Section 1 of the Constitution, judicial power is
vested in the courts. Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. Judicial power is an
antidote to and a safety net against whimsical, despotic and oppressive exercise of governmental
power. The aggrieved party may seek redress therefrom through the appropriate special civil
action provided by the Rules of Court. As to acts of the COMELEC, the special civil action may be
one for certiorari pursuant to Article IX(A), Section 7 of the Constitution.
As a general rule, an administrative order of the COMELEC is not a proper subject of a
special civil action for certiorari.[12] But when the COMELEC acts capriciously or whimsically, with
grave abuse of discretion amounting to lack or excess of jurisdiction in issuing such an order, the
aggrieved party may seek redress from this Court via a special civil action for certiorari under
Rule 65 of the Rules.[13]
Private respondent cannot find solace in the pronouncement in Ruperto Ambil, Jr. vs.
Commission on Elections, et al.[14] because the subject matter of the petition therein was an
interlocutory order of a Division of the COMELEC. This Court held that the remedy of the
aggrieved party was first to file a motion for a reconsideration of the order with the COMELEC En
Banc. The raison detre therefor is that under Rule 3, Section 6(c) of the COMELEC Rules of
Procedure, any motion for a reconsideration of a decision, resolution, order or ruling of a Division
of the COMELEC has to be referred to and resolved by the Commission sitting En Banc. A motion
for reconsideration filed with the COMELEC En Banc of an order, ruling or resolution of a Division
thereof is a plain, speedy and adequate remedy therefrom.
We now resolve the second issue. Irrefragably, the petition before the COMELEC does not
pose a pre-proclamation controversy as defined in Article XX, Section 241 of Republic Act No.
7166, thus:
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.[15]
Pre-proclamation controversies are properly limited to challenges directed against the
Board of Canvassers and proceedings before said Board relating to particular election returns to
which private respondent should have made specific verbal objections subsequently reduced to
writing. The proceedings are summary in nature; thus, the reception of evidence aliunde, e.g. the
original copies of the VRRs, is proscribed. In fine, in pre-proclamation proceedings, the COMELEC
is not to look beyond or behind election returns which are on their face regular and authentic
returns.[16] Issues such as fraud or terrorism attendant to the election process, the resolution of
which would compel or necessitate the COMELEC to pierce the veil of election returns which
appear to be prima facie regular, on their face, are anathema to a pre-proclamation
controversy. Such issues should be posed and resolved in a regular election protest.[17]
5
In his petition with the COMELEC, private respondent alleged that fraud and irregularities
allegedly perpetrated by unscrupulous individuals who substituted for the registered voters and
voted for the latter in the subject precincts, in conspiracy with the Board of Election Inspectors,
or abetted by the members thereof, attended the electoral process in the subject precincts.The
fraud and the irregularities catalogued by private respondent required the reception of
evidence aliunde. As stated earlier, such grounds are not proper bases for a pre-proclamation
controversy but are appropriate for a regular election contest within the original jurisdiction of
the Regional Trial Court. Indeed, the Court held in Dimangadap Dipatuan vs. Commission on
Elections, et al.:[18]
That the padding of the List of Voters may constitute fraud, or that the Board of Election
Inspectors may have fraudulently conspired in its preparation, would not be a valid basis for a
pre-proclamation controversy either. For, whenever irregularities, such as fraud, are asserted,
the proper course of action is an election protest.
Such irregularities as fraud, vote-buying and terrorism are proper grounds in an election contest
but may not as a rule be invoked to declare a failure of election and to disenfranchise the greater
number of the electorate through the misdeeds, precisely, of only a relative few. Otherwise,
elections will never be carried out with the resultant disenfranchisement of the innocent voters,
for the losers will always cry fraud and terrorism (GAD vs. COMELEC, G.R. No. 78302, May 26,
1987, 150 SCRA 665).
Neither is private respondents petition before the COMELEC one for declaration of a failure
of elections in Saguiran, Lanao del Sur. Section 6, Article 1 of R.A. No. 7166 provides when a
failure of election occurs
SEC. 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud, or other
analogous causes the election in any polling place has not been held on the date fixed, or had
been suspended before the hour fixed by the law for the closing of the voting, or after the voting
and during the preparation and the transmission of the election returns or in the custody or
canvass thereof, such election results in a failure to elect, and in any of such cases the failure or
suspension of election would affect the result of the election, the Commission shall, on the basis
of verified petition by any interested party and after due notice and hearing, call for the holding
or continuation of the election not held, suspended or which resulted in a failure to elect on a
date reasonably close to the date of the election not held, suspended or which resulted in a
failure to elect but not later than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to elect (Sec. 7, 1978 EC).[19]
Under Section 5, Article 1 of the aforementioned law, the matter of the postponement or
declaration of failure of election and the calling of a special election as provided for in Section 6,
shall be decided by the COMELEC sitting En Banc by a majority of its members:
SEC. 5. Postponement of election. The postponement, declaration of failure of election and the
calling of special elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code shall
be decided by the Commission sitting en banc by a majority vote of its members. The causes for
the declaration of a failure of election may occur before or after the casting of votes or on the
day of the election. (Sec. 4, p. 1, RA 7166).[20]
 Before the COMELEC can grant a verified petition seeking to declare a failure of election,
the concurrence of two (2) conditions must be established, namely: (a) no voting has taken place
in the precincts concerned on the date fixed by law or, even if there was voting, the election
nevertheless resulted in a failure to elect; (b) the votes cast would affect the result of the
election. The Court declared in Ricardo Canicosa vs. Commission on Elections, et al.,[21] that there
are only three (3) instances where a failure of election may be declared, namely:
x x x (a) the election in any polling place has not been held on the date fixed on account of force
majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in any polling
place had been suspended before the hour fixed by law for the closing of the voting on account
of force majeure, violence, terrorism, fraud, or other analogous causes; (c) after the voting and
during the preparation and transmission of the election returns or in the custody or canvass
thereof, such election results in a failure to elect on account of force majeure, violence,
terrorism, fraud, or other analogous causes.[22]
While fraud is a ground to declare a failure of election, such fraud must be one that
prevents or suspends the holding of an election, including the preparation and transmission of
the election returns. Failure to elect must be understood in its literal sensewhich is, nobody
emerges as a winner.[23] The barefaced fact that a candidate has been proclaimed and has
assumed office does not deprive the COMELEC of its authority to annul any canvass and illegal
proclamation.[24] A petition for the annulment of election is not the same as one involving a pre-
proclamation controversy. In the fairly recent case of Tomas T. Banaga, Jr. vs. Commission on
Elections, et al.[25] with a factual backdrop similar to this case, the Court held:
We have painstakingly examined the petition filed by petitioner Banaga before the
COMELEC. But we found that petitioner did not allege at all that elections were either not held or
suspended. Neither did he aver that although there was voting, nobody was elected. On the
contrary, he conceded that an election took place for the office of vice-mayor of Paraaque City,
and that private respondent was, in fact, proclaimed elected to that post. While petitioner
contends that the election was tainted with widespread anomalies, it must be noted that to
warrant a declaration of failure of election the commission of fraud must be such that it
prevented or suspended the holding of an election, or marred fatally the preparation and
transmission, custody and canvass of the election returns. These essential facts ought to have
been alleged clearly by the petitioner below, but he did not.
Private respondent alleged in his petition with the COMELEC En Banc that the elections
ensued in the subject precincts and that petitioner herein emerged as the winner and was in fact
proclaimed as such by the Board of Election Inspectors.
In sum then, the grounds alleged by private respondent in his petition before the COMELEC
are those for a regular election protest and are not proper in a pre-proclamation controversy;
nor is such petition one for annulment of the elections or for a declaration of failure of elections
in the municipality of Saguiran, Lanao del Sur. The COMELEC should have ordered the dismissal
of the petition instead of issuing the assailed order. The COMELEC thus committed a grave abuse
of its discretion amounting to excess or lack of jurisdiction in issuing the same. The error is
correctible by the special civil action for certiorari.
PREMISES CONSIDERED, the petition is GRANTED. The assailed order is SET ASIDE. The
petition of herein private respondent with the public respondent is DISMISSED, without prejudice
6
to the filing of a regular election protest, the period for the filing of which is deemed suspended
by the filing of the petition before the Commission on Elections which gave rise to the petition at
bar.
5.) TYPOCO vs. COMELEC
Before us is a petition for certiorari and prohibition to annul and set aside the resolution of the
Commission on Elections (COMELEC) En Banc dated October 12, 1998 which dismissed herein
petitioner Jesus Typoco, Jr.'s (TYPOCO) petition for Annulment of Election or Election Results
and/or Declaration of Failure of Elections docketed as SPA No. 98-413.
The factual antecedents insofar as pertinent to the instant petition are as follows:
TYPOCO and private respondent Jesus Pimentel (PIMENTEL) were both candidates for the
position of Governor in Camarines Norte during the May 11, 1998 elections. On May 22, 1998,
TYPOCO together with Winifredo Oco (OCO), a candidate for the position of Congressman of the
Lone District of Camarines Norte filed a Joint Appeal before the COMELEC docketed as SPC-No.
98-133. TYPOCO and OCO questioned therein the ruling of the Provincial Board of Canvassers of
Camarines Norte which included in the canvass of votes the Certificate of Canvass of the
Municipality of Labo, Camarines Norte. TYPOCO also filed a Motion to Admit Evidence to Prove
That a Substantial Number of Election Returns Were Manufactured as They Were Prepared by
One Person based on the report of one Francisco S. Cruz, a Licensed Examiner of Questioned
Document, who examined copies of election returns of the LAKAS-NUCD.
On June 4, 1998, COMELEC (Second Division) issued an Order dismissing the Joint Appeal.
Thereafter, TYPOCO filed a Motion for Reconsideration reiterating his motion to admit evidence
to prove the manufacturing and/or spurious character of the questioned returns which were
allegedly prepared in group by only one person and which will materially affect the results of the
election for the position of Governor.
In the meantime, on June 10, 1998, TYPOCO and OCO filed with the COMELEC En Banc a separate
petition for Annulment of Election or Election Results and/or Declaration of Failure of Elections in
several precincts, docketed as SPA No. 98-413, subject of the instant petition. The petition
alleged that massive fraud and irregularities attended the preparation of the election returns
considering that upon technical examination, 305 election returns were found to have been
prepared in group by one person.
On July 15, 1998, the COMELEC En Banc issued an Order directing the Voters Identification
Division of the Commission's Election Records and Statistics Department (ERSD) to examine the
COMELEC copies of the 305 election returns questioned by TYPOCO.
On August 12, 1998, the COMELEC's ERSD Voters Identification Division submitted its Questioned
Document Report to the COMELEC En Banc on the results of its technical examination of the
questioned election returns. The report disclosed, among others, that the "handwritten entries
on 278 COMELEC copies of election returns particularly under the columns
Congressman/Governor/Vice-Governor/Nickname or Stage Name, were written by one and the
same person in groups." 1
On August 31, 1998, the COMELEC En Banc issued the resolution denying petitioner's motion for
reconsideration in SPC No. 98-133 on the ground that an election protest is the proper remedy.
TYPOCO then filed a petition for certiorari and prohibition under Rule 65 with prayer for the
issuance of a temporary restraining order and/or writ of preliminary injunction assailing the
Order dated June 4, 1998 and the Resolution dated August 31, 1998, respectively issued in SPC
No. 98-133 by the COMELEC (Second Division) and the COMELEC En Banc. 2 In a resolution dated
September 22, 1998, this Court dismissed the petition finding no grave abuse of discretion on the
part of respondent COMELEC in issuing the aforesaid assailed orders. TYPOCO's motion for
reconsideration was likewise denied by this Court with finality on September 29, 1998.
On October 12, 1998, the COMELEC En Banc promulgated a resolution in SPA 98-413, dismissing
TYPOCO's petition for the Declaration of Failure of Elections and/or Annulment of Elections in
Camarines Norte for lack of merit, thus:
The grounds cited by petitioners do not fall under any of the instances enumerated in Sec. 6 of
the Omnibus Election Code.
In Mitmug vs. Commission on Elections, 230 SCRA 54, the Supreme Court ruled that before the
Comelec can act on a verified petition seeking to declare a failure of elections, at least two (2)
conditions must concur: (a) no voting has taken place in the precincts on the date fixed by law, or
even if there was voting, the election nevertheless resulted in failure to elect; and (b) the votes
that were not cast would affect the result of the election. From the allegations of the petition in
the instant cases, it is clear that an election took place and that it did not result in a failure to
elect. In fact, by separate resolution, the Commission has authorized the provincial board of
canvassers to proclaim the winning candidates and this as been implemented.
WHEREFORE, the Commission hereby DISMISSES the petition in each of the above cases, for lack
of merit. 3
Hence, the instant petition on the grounds that the COMELEC En Banc gravely abused its
discretion as follows: 1. in holding that the grounds cited by TYPOCO do not fall under any of the
instances enumerated in Section 6 of the Omnibus Election Code; 2. in refusing to annul the
election or the election results or to declare a failure of election despite the fact that massive
fraud and irregularities attended the preparation of the election returns; 3. in failing to proclaim
TYPOCO as the winning candidate for Governor; 4. in failing to annul the proclamation of
PIMENTEL which is null and void from the beginning; 5. in ruling that an election protest is the
proper remedy and not an annulment of the election or election results and/or declaration of
failure of elections. 4
7
Simply stated, did the COMELEC commit grave abuse of discretion in not declaring a failure of
elections for the position of Governor in Camarines Norte in the May 11, 1998 elections?
In a Manifestation and Motion (In Lieu of Comment) filed by the Office of the Solicitor General
(OSG), the latter joins TYPOCO's prayer for affirmative relief. The OSG explains thus:
13. The petition a quo (SPA No. 98-413) specifically prayed for annulment of election returns
and/or election results in the protested precincts where massive fraud and irregularities were
allegedly committed in the preparation of the election returns which, upon technical
examination of their authentic copies, were found to have been prepared in groups by one
person (Petition, Annex A, p. 2).
14. On this score, it should be stressed that election returns are prepared separately and
independently by the Board of Election Inspectors assigned in each and every precinct. Hence,
uniformity in the handwritten entries in the election returns emanating from different electoral
precincts, as in this case speaks only of one thing — THE ELECTION RETURNS WERE FABRICATED
OR TAMPERED WITH.
Here, the COMELEC itself, through its own Voters' Identification Department, certified that out of
the 305 election returns in the 12 municipalities of Camarines Norte, 278 or 91.14% thereof were
found to have been written by one person which fact lucidly speaks of "massive fraud" in the
preparation of election returns.
15. Precisely, massive fraud committed after the voting and during the preparation of the
election returns resulting in a failure to elect, is a ground for annulment of election under Section
6 of the Omnibus Election Code. As such therefore, the case at bar falls within the jurisdiction of
COMELEC.
xxx xxx xxx
18. At any rate, there is merit to petitioner's claim that the votes in the subject election returns,
if correctly appreciated, will materially affect the results of the election for Governor, i.e.,
TYPOCO PIMENTEL
Votes per PBC Canvass 53,454 64,358
Less: Votes obtained from
Fraudulent Returns 11,253 27,060
Difference 42,201 37,325
Vote Lead of Petitioner 4,876 5
The authority of the COMELEC to declare a failure of elections is derived from Section 4 of
Republic Act No. 7166, otherwise known as, "The Synchronized Elections Law of 1991, "which
provides that the COMELEC sitting En Banc by a majority vote of its members may decide, among
others, the declaration of failure of election and the calling of special elections as provided in
Section 6 of the Omnibus Election Code. Said Section 6, in turn, provides as follows:
Sec. 6. Failure of election. — If, on account of force majeure, violence, terrorism, fraud or other
analogous causes the election in any polling place has not been held on the date fixed or had
been suspended before the hour fixed by the law for the closing of the voting, or after the voting
and during the preparation and the transmission of the election returns or in the custody or
canvass thereof, such election results in a failure to elect, and in any of such cases the failure or
suspension of election would affect the result of the election, the Commission shall, on the basis
of verified petition by any interested party and after due notice and hearing, call for the holding
or continuation of the election not held, suspended or which resulted in a failure to elect on a
date reasonably close to the date of the election not held, suspended or which resulted in a
failure to elect but not later than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to elect.
The same provision is reiterated under Section 2, Rule 26 of the Revised COMELEC Rules.
Based on the foregoing laws, the instant petition must fail because the allegations therein do not
justify a declaration of failure of election.
The COMELEC correctly pointed out that in the case of Mitmug vs. Commission on Elections 6, this
Court held that before COMELEC can act on a verified petition seeking to declare a failure of
election, two (2) conditions must concur: first, no voting has taken place in the precincts
concerned on the date fixed by law or, even if there was voting, the election nevertheless
resulted in a failure to elect; and second, the votes cast would affect the result of the election.
In Loong vs. Commission on Elections 7, this Court added that the cause of such failure of election
should have been any of the following: force majeure, violence, terrorism, fraud of other
analogous cases. Further, in Borja, Jr. vs. Commission on Elections 8, we stated that:
The COMELEC can call for the holding or continuation of election by reason of failure of election
only when the election is not held, is suspended or results in a failure to elect. The latter phrase,
in turn, must be understood in its literal sense, which is "nobody was elected."
Clearly then, there are only three (3) instances where a failure of election may be declared,
namely: (a) the election in any polling place has not been held on the date fixed on account
of force majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in any
polling place had been suspended before the hour fixed by law for the closing of the voting on
account of force majeure, violence, terrorism, fraud or other analogous causes; (c) after the
voting and during the preparation and transmission of the election returns or in the custody or
canvass thereof, such election results in a failure to elect an account of force majeure, violence,
terrorism, fraud, or other analogous
8
causes. 9 In all instances there must have been failure to elect; this is obvious in the first scenario
where the election was not held and the second where the election was suspended. As to the
third scenario, the preparation and transmission of the election returns which give rise to the
consequence of failure to elect must as aforesaid be literally interpreted to mean that nobody
emerged as a winner.
None of these circumstances is present in the case at bar. While the OSG joins TYPOCO in
pinpointing anomalies in the preparation of the election returns due to the uniformity of the
handwriting in the same, implying that fraud was committed at that stage, the fact is that the
casting and counting of votes proceeded up to the proclamation of the winning candidate thus
precluding the declaration of a failure of election. While fraud is a ground to declare a failure of
election, the commission of fraud must be such that it prevented or suspended the holding of an
election including the preparation and transmission of the election returns. 10
It can thus readily be seen that the ground invoked by TYPOCO is not proper in a declaration of
failure of election. TYPOCO's relief was for COMELEC to order a recount of the votes cast, on
account of the falsified election returns, which is properly the subject of an election contest. 11
The COMELEC, therefore, had no choice but to dismiss TYPOCO's petition in accordance with
clear provisions of the law and jurisprudence.
WHEREFORE, finding no grave abuse of discretion committed by public respondent Commission
on Elections, the petition is DISMISSED and its Resolution En Banc of October 12, 1998 dismissing
the petition before it on the ground that the allegations therein do not justify a declaration of
failure of election is AFFIRMED.
SO ORDERED
6.) UTTO VS. COMELEC
In this petition for certiorari and prohibition, petitioner seeks to annul the resolutions[1] of the
Commission on Elections (Comelec) en banc, affirming in toto the resolution of the Comelec (First
Division)[2] directing the inclusion of five (5) election returns excluded by the municipal board of
canvassers during the canvass of votes for the May 14, 2001 election in the municipality of Sultan
sa Barongis, Maguindanao and finding petitioners proclamation to be illegal and void ab initio.
Petitioner Abdulkarim D. Utto and respondent Datu Almansa B. Angas were candidates for the
position of the mayor of the municipality of Sultan sa Barongis, Maguindanao in the May 14,
2001 election.
For the canvassing of votes of the May 14, 2001 election returns, the original municipal board of
canvassers was composed of Nena Alid as chairman, and Maceda Lidasan Abo and Noron Gonina,
as members. During the canvassing on May 16, 2001, election returns in Precinct Nos. 15A,
25A/26A, 66A, and 68A/69A were presented.
On May 18, 2001, respondent filed a petition to inhibit Alid and Abo, which resulted in the
suspension of the canvassing. Alid and Abo inhibited themselves from the proceedings.
On May 24, 2001, Bai Haidy D. Mamalinta took over as chairperson, with Roihaida Khalid and
Noron Gonina, as members of the municipal board of canvassers. The canvassing was again
suspended when both Khalid and Gonina also inhibited themselves from participating in the
proceedings.
On May 27, 2001, the provincial election supervisor designated Rufden Mangelen and Tamano
Diolanen as members of the municipal board of canvassers. In an affidavit executed on May 31,
2001, Tamano Diolanen stated that at around 6:00 in the morning of that day, chairperson
Mamalinta called him up and informed him that she would convene the board of canvassers,
with instruction for him not to attend because he was already replaced. He further stated that on
May 28, 2001, Rufden Mangelen called him up to tell him of his (Mangelen) decision to inhibit
himself as member of the board of canvassers due to pressure exerted by chairperson
Mamalinta.[3]
In the morning of May 31, 2001, the municipal board of canvassers convened with chairperson
Mamalinta and member Asuncion Corazon Reneido present.[4] The other member, Mowakiram
Samuang was absent.[5] Before the start of the canvass, chairperson Mamalinta distributed to the
parties present a report on the status of canvassing. Out of the 98 precincts, the municipal board
of canvassers issued four (4) separate rulings excluding the above-cited five (5) election returns.
Particularly, the municipal board of canvassers ruled that:
With respect to 67A, the copy of the ER for local position is not original. At the instance of the
interested parties, the same was excluded from the canvass.
With respect to 15A, the ER is not the Board copy and the data on the votes of the candidates are
manifestly tampered by touch and go and not initialed by the BEI. The votes in taras, words and
figures are different.
With respect to 25A and 26A, the ER is Ballot Box copy and from the testimony of the BEI, it
could not be determined as to where are the Board copies. The Ballot Box copy is originally
signed by the BEI and the watchers instead of reflected in carbon copy.
With respect to 66A, the envelope has no outer seal. The Election Officer admitted that when the
envelope was received by him, it was already opened. The ER contained in the envelope has no
inner seal. The ER is two times exposed to substitution or switching.
With respect to 68A and 69A, the outer seal appeared to be deliberately cut. The Election Officer
confirmed that the outer seal was deliberately cut. There is no inner seal, exposing two times the
ER.
9
With respect to 126A and 127A, the Board copy is only for the Party List, none for other
returns. The BEI could not determine where are the other copies. [6]
At this point, respondent orally manifested his intention to appeal the ruling, [7] and
simultaneously filed a verified notice of appeal, which Bai Haidy D. Mamalinta (chairperson of the
municipal board of canvassers) refused to accept.[8]
Meanwhile, despite respondents manifestation, the municipal board of canvassers proceeded
with the proclamation of the candidates for municipal offices. The board proclaimed petitioner
as the duly elected mayor of the municipality.[9]
On June 1, 2001, Corazon Reniedo sent a letter to Atty. Wynne Asdala, acting provincial election
supervisor of Maguindanao irrevocably resigning as member of the municipal board of
canvassers of Sultan sa Barongis, Maguindanao in connection with the canvass of the election
returns because she was being pressured to proclaim mayoralty candidate Abdulkarim Utto in
gross violation of Section 20, Republic Act No. 7166 and Section 38 (9), Comelec Resolution No.
3848.[10] Based on the canvass of 93 election returns, petitioner obtained a margin of 149 votes
over respondent. The total number of registered voters from the five excluded election returns is
944. Clearly, the results of the municipal election would be adversely affected by the
uncanvassed returns.[11]
On June 4, 2001, respondent filed a verified appeal[12] with Comelec raising the issue of (1)
whether the exclusion of four (4) returns in Precinct Nos. 15A, 25A/26A, 66A and 68A/69A was
justified or not; and (2) whether the returns of Precinct No. 126A/127A would be included in the
canvass since there was a ruling directing its exclusion from the canvass.[13]
On June 7, 2001, respondent filed with Comelec a motion to annul pendente lite petitioners
proclamation,[14] contending that such proclamation violated Section 20 (i), Republic Act No.
7166.[15] Inspite of the laws mandate to suspend the canvassing and await the decision of the
Comelec on the appeal, the municipal board of canvassers proceeded with the proclamation. The
questioned election returns rejected by the municipal board of canvassers would materially
affect the results of the municipal election. The number of registered voters by precinct is:
Precinct No. No. of Voters
15A 142
25A/26A 233
66A 120
68A/69A 206
126A/127A 243
TOTAL 944[16]
On June 14, 2001, vice-mayoralty candidate Roger L. Mamalo and Sangguniang Bayan candidates
Ayongan Kaidum M. Sali, Frias S. Mamalo, and Khasmer S. Balutinik, who, together with
petitioner, were proclaimed by the municipal board of canvassers on May 31, 2001 filed with
Comelec motions for intervention[17] contending that their proclamation would not be affected
by the five (5) election returns. Hence, it should be upheld.[18]
On June 23, 2001, Comelec sent petitioner via telegram summons with notice of hearing
attaching thereto a copy of respondents verified appeal.[19] Comelec gave petitioner three (3)
non-extendible days from receipt to file a verified answer. The case was set for hearing on June
29, 2001, at 9:00 in the morning at the session hall of Comelec, Intramuros, Manila.
When the case was called for hearing on June 29, 2001, before the Comelec, First Division, only
counsel for respondent and intervenor vice-mayor appeared.[20] Considering that petitioner had
not filed an answer, Comelec (First Division) issued an order[21] re-setting the hearing to July 6,
2001, at 10:00 in the morning. In the same order, the Comelec declared the motion to annul
proclamation submitted for resolution.[22] Petitioner was notified via telegram of the re-setting of
the hearing.[23]
On June 30, 2001, Comelec (First Division) promulgated a resolution ordering the inclusion of the
uncanvassed election returns, and setting aside petitioners proclamation. [24] The Comelec (First
Division) found petitioners proclamation to be illegal. Upon the filing of the verified notice of
appeal, the board of canvassers must submit the appropriate report to the Comelec en
banc elevating therewith the complete records and evidence submitted during the canvassing
and suspend the proclamation. Any proclamation made is void ab initio. The dispositive portion
of the resolution reads:
In view of the foregoing, the Commission First Division resolves as follows:
1. the rulings of the MBC directing the exclusion of the four (4) returns of Precinct Nos. 15A,
15A/26A, 66A, 68A/69A are hereby reversed and the same are hereby ordered included in the
canvass. The proclamation of the respondent Abdulkarim D. Utto as alleged elected mayor of
Sultan sa Barongis made on 31 May 2001 is hereby annulled and set aside;
2. the returns of Precinct No. 126A/127A is hereby included in the canvass. The Board of
Canvassers shall use the copies of the Provincial Board of Canvassers, the COMELEC copy, or the
ballot box copy whichever of the returns is available;
3. a new Municipal Board of Canvassers for Sultan sa Barongis is hereby created composed of
lawyers from the main office in COMELEC, Manila and are hereby ordered to reconvene in the
city of Manila to re-canvass the five (5) election returns ordered included in accordance with this
decision and thereafter proclaim the winning candidate for Mayor; and
4. the new Municipal Board of Canvassers shall also re-canvass the results of the election for the
position of Members of the Sangguniang Bayan in accordance with this decision.
10
SO ORDERED.[25]
Meanwhile, petitioner took his oath at noon of the same day and immediately assumed office as
mayor of the municipality of Sultan sa Barongis, Maguindanao.[26]
On July 5, 2001, petitioner filed with Comelec, First Division, a motion to reconsider the
resolution of June 30, 2001, assailing it as contrary to law and the evidence and issued without
affording him notice and opportunity to be heard as he was not impleaded as a party to the
petition.[27] In support thereof, petitioner cited Sandoval v. Comelec,[28] reiterating the ruling that
Comelec shall comply with the twin requirement of prior notice and hearing in the annulment of
the proclamation. Petitioner prayed that the inclusion of the uncanvassed return be set aside and
the case remanded to the Comelec (First Division) for the amendment of the petition to include
all indispensable parties.[29]
On October 5, 2001, the COMELEC en banc promulgated a resolution, the dispositive portion of
which reads:
IN VIEW OF ALL THE FOREGOING, the Motion for Reconsideration is hereby DENIED for lack of
merit and the Resolution of June 30, 2001 of the First Division is hereby AFFIRMED. Accordingly,
a new Board of Canvassers is hereby created composed of Atty. Jubail Surmeida as Chairman and
Atty. Nelia Aureus and Abner Cabisuelas as members. This new Board is ordered to immediately
convene at the Session Hall, Comelec, Manila to canvass and proclaim the winning candidates in
Sultan sa Barongis, Maguindanao.
SO ORDERED.[30]
In its ruling, the COMELEC en banc adopted the findings of the First Division, thus:
1. The election returns of Precinct No. 25A/26A was excluded simply because what was retrieved
from the envelope containing the election returns and submitted to the MBC was the ballot box
copy of the returns. The Board clearly erred. The ballot box copy is an authentic copy of the
election returns and could be used as basis for the canvass. Likewise, it appears that no oral or
written objection was presented for its exclusion. There being no objection, it should have been
canvassed outright. The BEI Chairman appeared before the Board of Canvassers and explained
why they signed anew the ballot box copy. The Chairman testified that the signatures of the BEI
were not clearly visible and so the BEI members signed anew over and above their carbonized
signatures.
2. The election returns of Precinct No. 68A/69A and precinct No. 66A--- The returns of Precinct
No. 68A/69A was excluded because the envelope containing the returns did not have a paper
seal. That of Precinct No. 66A was rejected because the paper seal attached to the envelope
containing the returns was broken. The grounds relied upon by the MBC are formal defects that
do not affect the genuineness of the election returns. [Ocampo vs. Comelec, G. R. No. 136282 &
137470, February 15, 2000 citing Baterina vs. Comelec, 205 SCRA 1]
3. The election returns of Precinct No. 15A-- This particular election return was excluded by the
Board on the ground that what was submitted to the Board was not the copy of the MBC and
that the data on the votes of the candidates are manifestly tampered with touch and go and not
initialed by the BEI. The MBC also ruled that the votes in taras, words and figures are
different. But there is no showing that the alleged tampered votes are those for the position for
Mayors. In his appeal, appellant says that what was submitted to the Board is the copy for the
Municipal Board of Canvassers. He also submitted the copy of the returns for the dominant
majority party. An examination of the same showed that there was no tampering with or
alterations in the votes of the mayoralty candidates. The alterations appear to be in the position
for Councilors particularly for the candidates Sayana Mamalo and Frias Mamalo.
4. The election returns of Precinct No. 126A/127A-- There is no ruling either by the original Board
or the Board headed by Mamalinta directing the exclusion of the returns of Precinct No.
126A/127A. This returns had to be included in the canvass otherwise the canvass would be
incomplete. When the envelope containing the returns was opened, only the returns for the
party-list was found. The returns for the national, provincial, and local officials were not found
inside the envelope. The situation is covered by the provision of Sec. 233 of the Omnibus Election
Code. The Board was under obligation to summon the BEI and if the election returns have been
lost or destroyed, the authority of the Commission must be obtained to use in the canvass the
other authentic copies of the election returns. Here, the MBC ignored the provisions of Sec. 233
of the Omnibus Election Code providing that:
Sec 233. When election returns are delayed, lost or destroyed.-- In case its copy of the election
returns is missing, the board of canvassers shall, by messenger or otherwise, obtain such missing
election returns from the board of election inspectors concerned, or if said returns have been
lost or destroyed, the board of canvassers, upon prior authority of the Commission, may use any
of the authentic copies of said election returns or a certified copy of said election returns issued
by the Commission, and forthwith direct its representative to investigate the case and
immediately report the matter to the Commission. (Omnibus Election Code)
The MBC is ordered to use the COMELEC copy, the PBC copy, or the ballot box copy for the
purpose of determining the results of Precinct No. 126A/127.[31]
On October 16, 2001, petitioner filed with the Supreme Court the instant petition
for certiorari and prohibition with prayer for temporary restraining order.[32]
On October 23, 2001, the Court issued a temporary restraining order, effective immediately, and
ordering Comelec to cease and desist from implementing the resolutions of June 30,
2001 and October 5, 2001 in SPC No. 01-253.[33]
We deny the petition.
Petitioner claims that respondent by skillful strategy made it appear that he (petitioner) was a
party in the appeal proceedings by filing a motion to annul proclamation in the same proceedings
and naming him party respondent without obtaining prior leave of the Comelec.
11
Citing Velayo v. Comelec,[34] petitioner averred that his right to due process was violated due to
his non-inclusion as respondent and lack of notice of the proceedings in the Comelec which
resulted in the cancellation of his proclamation.[35] Without the required notice and hearing,
petitioner contended that his proclamation cannot be annulled.
In reviewing administrative decisions, the Supreme Court generally respected the findings of fact
of administrative agencies as long as they are supported by substantial evidence. [36]Such findings
of fact of administrative agencies, being considered experts in their field are binding on the
Supreme Court.[37]
There was substantial evidence that petitioner was duly notified of the appeal and annulment
proceedings. On June 23, 2001, the clerk of the Comelec sent petitioner via telegram, summons
with notice of hearing attaching thereto a copy of respondents verified appeal. [38] Respondent
furnished him, by registered mail, a copy of the appeal [39] and position paper in support of the
appeal and motion to annul the proclamation,[40] received by petitioners daughter on June 20,
2001 as certified by Saabudin P. Daud, acting postmaster of Sultan sa Barongis,
Maguindanao.[41] Likewise, on the same date petitioner received copy of the motion to annul
proclamation sent through registered mail.[42]
The factual circumstances in the instant petition are far different from that obtaining
in Velayo.[43] Hence, the ruling enunciated therein is not applicable to petitioners situation.
In administrative proceedings, the essence of due process is simply an opportunity to be heard,
or an opportunity to explain ones side or opportunity to seek a reconsideration of the action or
ruling complained of.[44] At the hearing before the Comelec en banc of petitioners motion for
reconsideration, petitioner was given full opportunity to present his case. He did not present
controverting evidence to justify the exclusion of the five (5) election returns.
Considering that at the time respondent filed the motion to annul proclamation no responsive
pleading had been served, amendment of the appeal was still a matter of right. Rule 9, Section 1,
1993 Comelec Rules of Procedure explicitly provides:
Section 1. When Amendments Allowed as a Matter of Right.- A party may amend his pleading
once as a matter of course at any time before a responsive pleading is served, or, if the pleading
is one to which no responsive pleading is permitted and the action has not been placed upon the
trial calendar, he may so amend it at any time within five days after it is served.
Hence, petitioners contention that the amendment was illegal in the absence of prior leave of
court is erroneous.
Assuming arguendo that petitioner was not given notice or an opportunity to be heard, the
petition would still be denied. The twin-requirement of notice and hearing in annulment of
proclamation is not applicable because of the illegality of petitioners proclamation.
Section 38 (9), Comelec Resolution No. 3848[45] provided the procedure in the disposition of
contested election returns and certificate of canvass. The Comelec precludes the board
of canvassers from proclaiming any candidate as winner, except upon its
authorization after it has ruled on the appeal of the losing party. Any proclamation made in
violation thereof shall be void ab initio, unless the contested returns will not adversely affect the
results of the election. This provision is mandatory and requires strict observance.
Section 20 (i), Republic Act No. 7166 where Comelec Resolution No.3848 finds basis further
states:
SEC. 20. Procedure in Disposition of Contested Election Returns.--(a) x x x
(i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the
Commission after the latter has ruled on the objections brought to it on appeal by the losing
party. Any proclamation made in violation hereof shall be void ab initio, unless the contested
returns will not adversely affect the results of the election.
Consequently, petitioners proclamation was null and void. It was made on May 31, 2001 after
respondent manifested his intention to appeal the ruling of the board of canvassers. On the day
of the proclamation, respondent attempted to file a verified notice of appeal, but the
chairperson of the municipal board of canvassers refused to accept the appeal. Within the
reglementary period for filing an appeal, respondent went to the Comelec. Pursuant to Section
20 (i), Republic Act No. 7166, the municipal board of canvassers may not proclaim any candidate
without waiting for the authorization of the Comelec. Considering that petitioner had a very
small margin of 149 votes over respondent, and there were 944 registered voters from the five
excluded election returns, the results of the municipal election would be undoubtedly adversely
affected by the contested returns. The proclamation thus made is void ab initio.[46]
It is now settled that an incomplete canvass of votes is illegal and cannot be the basis of a
proclamation.[47] A canvass cannot be reflective of the true vote of the electorate unless all
returns are considered and none is omitted.[48] When the municipal board of canvassers
disregarded the five (5) election returns, it in effect disenfranchised the voters of the excluded
precincts.[49]
Thus, the Comelec did not abuse its discretion for convening a new board of canvassers and
directing the inclusion of the uncanvassed election returns and, thereafter proclaiming the
winning candidate for mayor and other municipal officials.
Time and again, the Court has given its imprimatur on the principle that Comelec is with
authority to annul any canvass and proclamation illegally made.[50] The fact that a candidate
illegally proclaimed has assumed office is not a bar to the exercise of such power. It is also true
that after proclamation, the remedy of a party aggrieved in an election is an election
protest.[51] This is on the assumption, however, that there has been a valid proclamation. Where
a proclamation is null and void, the proclaimed candidates assumption of office cannot deprive
Comelec of the power to declare such proclamation a nullity.[52]
12
The reason behind the view herein expressed is as aptly elucidated in Aguam, to wit:
We draw from past experience. A pattern of conduct observed in past elections has been the
pernicious grab-the-proclamation-prolong-the-protest-slogan of some candidates or parties.
Really, were a victim of a proclamation to be precluded from challenging the validity thereof
after that proclamation and the assumption of office thereunder, baneful effects may easily
supervene. It may not be out of place to state that in the long history of election contests in this
country, as observed in Lagumbay vs. Climaco,[53] a successful contestant in an election protest
often wins but a mere pyrrhic victory, i. e., a vindication when the term of office is about to
expire or has expired. Protests, counter-protests, revisions of ballots, appeals, dilatory tactics,
may well frustrate the will of the electorate. And what if the protestant may not have the
resources and an unwavering determination with which to sustain a long drawn-out election
contest? In this context therefore all efforts should be strainedas far as is humanly possible to
take election returns out of the reach of the unscrupulous; and to prevent illegal or fraudulent
proclamation from ripening into illegal assumption of office.[54]
WHEREFORE, the Court hereby DENIES the petition for certiorari and AFFIRMS in toto the
October 5, 2001 Comelec en banc resolution in SPC No. 01-253. The temporary restraining order
issued on October 23, 2001 is hereby set aside.
7.) SIQUIAN VS. COMELEC
Petitioner and private respondent were candidates for mayor in Angadanan, Isabela in the May
11, 1998 elections. In the canvassing of votes, petitioner interposed no objections to the
inclusion of election returns from several precincts. It was only on May 16, 1998 that he
presented objections to the inclusion of certain returns on various grounds such as the presence
of the Barangay Captain in the polling areas, that the latter was influencing his constituents to
vote for a certain candidate, and the election returns were accomplished in areas outside of the
polling centers. On the same date, private respondent was proclaimed winner but the same was
annulled by the COMELEC (First Division) in a resolution dated June 15, 1998. The COMELEC also
enjoined the proclaimed candidates from assuming their posts and ordered the Municipal Board
of Canvassers to reconvene and to finish the canvassing.
After proceeding with the canvassing, the Board denied the petition for exclusion of the election
returns in some precincts filed by the petitioner (Nos. 65A, 16A/16A1) and granted the exclusion
sought for with respect to those in other precincts (Nos. 95A, 93-A/93A1, 94-A1, 81A, 58A). Both
parties appealed to the COMELEC (First Division), which affirmed the rulings issued by the Board
on the grant and denial of exclusion of the aforementioned election returns. It also ordered the
Board to continue the canvassing and proclaim the winner. Private respondent filed a motion for
reconsideration with the Commission en banc which on October 6, 1998 ruled that all the
election returns which petitioner initially sought to exclude be included in the
canvassing. Thereafter, private respondent was proclaimed winner on October 12, 1998. In a
petition for certiorari before this Court, petitioner imputes grave abuse of discretion to
respondent COMELEC in allowing the inclusion of the election returns from the precincts which
were ordered excluded by the Board of Canvassers.
The Court finds that the charge of grave abuse of discretion is more apparent than real. Section
20 of R.A 7166 and Section 36 of COMELEC Resolution 2962 requires that an oral objection to the
inclusion or exclusion of election returns in the canvassing shall be submitted to the Chairman of
the Board of Canvassers at the time the questioned return is presented for inclusion in the
canvass. It is not denied by petitioner that the objections interposed were made after the
election returns in certain precincts were included in the canvass. Such belated objections are
fatal to petitioners cause. Compliance with the period set for objections on exclusion and
inclusion of election returns is mandatory.[1] Otherwise, to allow objections after the canvassing
would be to open the floodgates to schemes designed to delay the proclamation and frustrate
the electorates will by some candidates who feels that the only way to fight for a lost cause is to
delay the proclamation of the winner. It should be noted that proceedings before the Board of
Canvassers is summary in nature which is why the law grants the parties a short period to submit
objections and the Board a short period to rule on matters brought to them. [2] Petitioners plea
for a liberal interpretation of technical rules and allow his untimely objections cannot be granted
in this case. Liberal construction of election laws applies only when it becomes necessary to
uphold the peoples voice.[3]
Assuming arguendo that petitioners objections to the inclusion of the subject returns were
timely filed, his contention that the votes in some of the objected precincts were cast under the
influence of the Barangay Captain and that some election returns were prepared under duress,
fraud, coercion has no merit. Even assuming that such were the facts, the same can no longer be
considered since the winners were already proclaimed and there is no sufficient reason or
evidence presented that the Board of Canvassers has made an invalid proclamation.[4] Moreover,
it is settled that as long as the election returns appear to be authentic and duly accomplished on
their face, the Board of Canvassers cannot look behind or beyond them to verify allegations of
irregularities in the casting or counting of votes.[5] A party, such as petitioner herein, seeking to
raise issues, resolution of which would compel or necessitate the COMELEC to pierce the veil of
election returns which appear prima facie regular on their face has his proper remedy in a
regular election protest.[6] Other than the general allegations that certain returns were prepared
under duress, threats, coercion, intimidation, petitioner failed to point out specific objections to
said returns[7] and likewise presented no adequate substantiation of his self-described Mob-ruled
proclamation made by the Board of Canvassers. It has been ruled that objections raised before
the Board of Canvassers that certain votes were not freely cast is not a valid ground for a pre-
proclamation controversy and is beyond the competence of the Board.[8]
WHEREFORE, finding no grave abuse of discretion, the petition is DISMISSED.
SO ORDERED.
13
8.) CHU VS. COMELEC
Assailed in this petition for certiorari under Rule 65 is the September 1, 1998 resolution of the
Commission on Elections (Comelec) en banc in SPC No. 98-109, denying petitioners motion for
reconsideration and affirming the June 8, 1998 order of its Second Division.[1] The aforesaid order
upheld the ruling of the Municipal Board of Canvassers of Uson, Masbate to include in its
canvassing the 37 election returns objected to by petitioner.
Petitioner Jesus L. Chu and private respondent Salvadora O. Sanchez (Sanchez) were candidates
for municipal mayor of Uson, Masbate in the May 11, 1998 elections. While the election returns
were being canvassed by the Municipal Board of Canvassers of Uson, Masbate (MBC), petitioner
objected to the inclusion in the canvass of some of the election returns. [2] Petitioner alleged that
Sanchez, with the aid of armed men, entered into the polling places where the centralized
counting was being conducted, and exerted undue influence and intimidation upon the board of
election inspectors (BEI) who were then counting the votes and preparing the election
returns.[3] Thus, according to petitioner, the votes reflected in these returns are no longer
reflective of the will of the electorate and should not be included in the canvass.[4]
Petitioner claims that he orally objected to the inclusion of seventy-four (74) election
returns. Yet, he was only able to file written objections within 24 hours from the time the oral
objections were made as required under section 245 of the Omnibus Election Code (the
Code)[5] for thirty-seven (37)[6] election returns. Petitioner attributed this shortcoming to the
MBCs refusal to give him the prescribed form when it convened on the evening of May 11,
1998. It was only on May 12, 1998, at 5 p.m., after the MBC had already finished canvassing forty
(40) election returns, that the MBC furnished petitioner with a single copy of the required forms,
which petitioner had to photocopy in another municipality.[7]
On May 15, 1998, the MBC rejected petitioners objections, finding that the affidavits submitted
by petitioner were not sufficient to support his allegations that they were prepared under duress
and giving more weight to the affidavits executed by the BEI.[8] Petitioner appealed to the
Comelec and on June 8, 1998, public respondents Second Division denied petitioners appeal and
directed the MBC to reconvene and include in the canvass the 37 election returns and,
thereafter, proclaim the winning candidate. Its disquisition was as follows
While the appeal interposed by the appellant show [sic] that the ground adduced fall [sic] under
paragraph (c) of Section 243 of the Omnibus Election Code, there is, however nothing in the
statements of the witnesses that would remotely evinced [sic] the alleged intimidation, duress,
coercion or undue influence supposedly exerted by the private respondent and the armed men
during the counting of votes and the preparation of the election returns....
The question to be resolved is whether or not the objections are valid and sufficient to cause the
exclusion of these 37 election returns of the enumerated precincts from the canvass. The
evidence presented by the petitioner are insubstantial and lacks the specifics required to prove
that respondent indeed committed the acts imputed to her which, as a consequence, would
suffice to render the subject election returns defective or invalid. Unless palpable errors and/or
material defects are clearly discernible on the faces of these returns, the Board of Canvassers is
duty bound to canvass the same. The Board cannot look beyond or behind these election returns
because its function is purely ministerial.
Apropos thereto, the Supreme Court in Casimiro vs. Commission on Elections, March 29, 1989,
171 SCRA 468, said:
Obviously the evidence relied upon by petitioner to support their charges of fraud and
irregularities in the election returns and in the canvassing consisted of Affidavits prepared by
their own representatives.The self-serving nature of said Affidavits cannot be discounted. As this
Court has pronounced, reliance should not be placed on mere affidavits.
Aside from said sworn statements, the records do not indicate any other substantial evidence
that would justify the exclusion of election returns in the canvassing for being fraudulent in
character or a declaration that the proceedings wherein the returns were canvassed were null
and void. The evidence presented by petitioners is not enough to overturn the presumption that
official duty had been regularly performed (Section 5[m], Rule 131). In the absence of clearly
convincing evidence, the election returns and the canvassing proceedings 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.
Perforce, for insufficiency of evidence, the ruling of the Municipal Board of Canvassers of Uson,
Masbate, dated May 15, 1998, to include in the canvass these 37 election returns is AFFIRMED.[9]
Petitioner received the Comelecs order on June 17, 1998. The following day, on June 18, 1998,
upon the receipt of a telegram sent by the Comelec, the MBC proclaimed Sanchez as the winning
candidate. On June 22, 1998, petitioner filed a motion for reconsideration of the Second
Divisions order, with an additional prayer for the annulment of the proclamation of
Sanchez. However, on September 1, 1998 the Comelec en banc denied petitioners
motion. Hence, this special civil action, wherein petitioner raises the following issues
1. Whether or not the proclamation of Salvadora Sanchez as the winning mayoralty candidate of
Uson, Masbate before the lapse of the five-day reglementary period within which the losing
party [herein petitioner] may file his motion for reconsideration is valid?
2. Whether or not the September 1, 1998 resolution of the Comelec en banc affirming the June 8,
1998 order of its second division is valid albeit the fact that if failed to rule on the remaining 37
election returns which were likewise objected to by petitioner and the results thereof will
materially affect the outcome of the election?
3. Whether or not public respondent Comelec gravely abused its discretion amounting to lack or
excess of jurisdiction when it rendered the September 1, 1998 resolution in SPC Case No. 98-
109?[10]
14
The petition is without merit.
The Code provides that 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.[11]
Section 243 of the Code enumerates the specific issues that may be raised in a pre-proclamation
controversy as follows:
(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 the 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.
In addition to the restrictive and exclusive scope of its subject matter, all pre-proclamation
controversies on election returns or certificates of canvass shall be disposed of summarily - first,
by the board of canvassers, and then, by the Comelec.[12] It is a well-entrenched rule in
jurisprudence that, in a pre-proclamation controversy, the board of canvassers and the Comelec
are not to look beyond or behind election returns which are on their face regular and authentic
returns. In such summary proceedings, there is no room for the presentation of evidence aliunde,
the inspection of voluminous documents, and for meticulous technical examinations which take
up considerable time. A party seeking to raise issues the resolution of which would compel or
necessitate the Comelec to pierce the veil of election returns which are prima facie regular on
their face, has his proper remedy in a regular election protest.[13]
The legislative intent behind the summary disposition of pre-proclamation controversies is to
give life to the policy that the canvass and proclamation be delayed as little as possible for it is in
the public interest that the position for which the election was held should be filled promptly,
even though the proclamation of the winning candidates be provisional in nature, in that the
same may still be subject to the results of the election protests that may be subsequently
filed.[14] Also, the boards of canvassers, particularly municipal, city and provincial, before whom
such pre-proclamation controversies are initiated, are merely ad hoc bodies, existing only for the
interim task of canvassing election returns and thus, do not have the facilities, the time, nor the
competence to hear, examine and decide on alleged election irregularities, unlike regular courts,
the Comelec or the electoral tribunals (Presidential, Senate, and House) which are regular
agencies of the government tasked and equipped for the purpose.[15]
In order to justify his objection to the inclusion of the 74 election returns in the canvassing, vice. Thus, if there had been sham voting or minimal voting which was made to appear as normal
petitioner alleged the following election irregularities - (1) Sanchez replaced some members of through the falsification of the election returns, such grounds are properly cognizable in an
the BEI with her relatives and sympathizers; (2) the respective assignments of the other BEI election protest and not in a pre-proclamation controversy.
members were changed without prior approval by the Comelec; (3) after the voting, the
members of the BEI were instructed to bring to Uson Central School the ballot boxes for a And in Matalam vs. Comelec,[20] the Court, in rejecting petitioners claims that the election
centralized counting despite the fact that the elections were peaceful and orderly and hence, returns were spurious, obviously manufactured and prepared under irregular circumstances,
there was no need to transfer the venue of the counting of the ballots; (4) that, considering the explained that
distance of some barangays from Uson, it took several hours for the ballot boxes to reach the
[the] petition must fail because it effectively implores the Court to disregard the statutory norm
school, during which time many irregularities could have transpired, destroying the sanctity of
that pre-proclamation controversies are to be resolved in a summary proceeding. He [petitioner]
the ballot boxes; (5) during the counting of the ballots and the preparation of the returns,
asks the Court to ignore the fact that the election returns appear regular on their face, and
Sanchez and her fully armed bodyguards entered the polling places and spoke with the members
instead to determine whether fraud or irregularities attended the election process. Because what
of the BEI who, due to very strong fear for their lives, were forced to disregard the ballots and
he is asking for necessarily postulates a full reception of evidence aliunde and the meticulous
instead to favor Sanchez, giving her a wide margin over petitioner; (6) Sanchez, together with her
examination of voluminous election documents, it is clearly anathema to a pre-proclamation
relatives and supporters, observed the proceedings before the BEI, resulting in the intimidation
controversy which, by its very nature, is to be heard summarily and decided as promptly as
of the members thereof; (7) Sanchez bodyguards threatened petitioners watchers in order to
possible.
prevent them from performing their functions; and (8) some members of the MBC were forced
by Sanchez bodyguards to immediately proclaim Sanchez. In support of his allegations, petitioner
Petitioner claims that the proclamation of Sanchez was premature since, at the time of such
submitted the affidavits of members of the BEI and of his own supporters[16] and a certified true
proclamation, the Comelecs June 8, 1998 order was not yet final and executory pursuant to
copy of an excerpt from the blotter of the Uson Police Department.[17]
paragraphs (h) and (i) of section 20 of RA 7166 which provides
The only issue raised by petitioner which may possibly be the subject of a pre-proclamation
SEC. 20. Procedure in Disposition of Contested Election Returns. -
controversy is the entry of Sanchez and her armed bodyguards in the polling places during the
counting of ballots and the preparation of the election returns, which allegedly caused the xxx xxx xxx
intimidation and undue influence of the members of the BEI, resulting in the sudden and radical
change in the election returns.[18]This would appear to fall under section 243 (c) of the Code, (h) On the basis of the records and evidence elevated to it by the board, the Commission shall
which provides that one of the issues properly pertaining to a pre-proclamation controversy is decide summarily the appeal within seven (7) days from receipt of said records and
that - evidence. Any appeal brought before the Commission on the ruling of the board, without the
accomplished forms and the evidence appended thereto, shall be summarily dismissed.
[t]he election returns were prepared under duress, threats, coercion, or intimidation, or they are
obviously manufactured or not authentic. The decision of the Commission shall be executory after the lapse of seven (7) days from receipt
thereof by the losing party.
However, petitioner does not claim that there are any defects or irregularities apparent from a
physical inspection of the election returns. Neither did the MBC nor the Comelec make any (i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the
finding that the returns contained any palpable errors or material defects. To prove the Commission after the latter has ruled on the objections brought to it on appeal by the losing
intimidation which petitioner asserts was exerted upon the members of the BEI by Sanchez and party. Any proclamation made in violation hereof shall be void ab initio, unless the contested
her supporters would require the reception of evidence aliunde in a full-blown proceeding, returns will not adversely affect the results of the election.
wherein the parties are permitted to file pleadings and to introduce the testimonies of their
witnesses and other documentary evidence to substantiate their allegations before the proper Petitioner also cites sections 13, Rule 18 and section 2, Rule 19 of the Comelec Rules of
tribunal. Such election irregularities cannot be proven in a summary proceeding like a pre- Procedure which states as follows-
proclamation controversy, but rather should be properly raised in an election protest.
Rule 18 - Decisions
Comelec,[19]
In the recent case of Salih vs. we held that returns will not be excluded on the mere
Sec. 13. Finality of Decisions or Resolutions.
allegations that the returns are manufactured or fictitious when the returns, on their face,
appear regular and wanting of any physical signs of tampering, alteration, or other similar xxx xxx xxx
15
(b) In Special Actions and Special Cases a decision or resolutions of the Commission en banc shall
become final and executory after five (5) days from its promulgation unless restrained by the
Supreme Court.
xxx xxx xxx
Rule 19 - Motions for Reconsideration
Sec. 2. Period for Filing Motions for Reconsideration. - A motion to reconsider a decision,
resolution, order, or ruling of a Division shall be filed within five (5) days from the promulgation
thereof. Such motion, if not pro forma, suspends the execution or implementation of the
decision, resolution, order or ruling.
According to petitioner, since he received the Comelecs June 8, 1998 order only on June 17,
1998, the same attained finality and may be fully executed only on June 24, 1998; that he had
five days from receipt of the assailed order to file a motion for reconsideration or until June 22,
1998; and that the proclamation of Sanchez as the winning candidate by the MBC on June 18,
1998 is void ab initio for at the time there was no final judgment which the board could lawfully
implement.[21]
Petitioner also asks this Court to declare that the Comelec committed a reversible error in failing
to pass upon his objections to the inclusion of the thirty-seven (37) election returns which he was
unable to embody in the prescribed form, as required by section 20 (c) of RA 7166, reasoning
that such failure was attributable to the MBC. [22]
In light of our ruling that the electoral irregularities enumerated by petitioner are not proper to a
pre-proclamation controversy for so long as the election returns appear to be authentic and duly
accomplished on their face, the other issues raised by petitioner have necessarily become moot
and academic.[23] The MBC, in rejecting petitioners objections and proclamaing Sanchez, and the
Comelec, in upholding the MBC, are entitled to the legal presumption of regularity in the
performance of their official functions,[24] which petitioner has failed to rebut.
Even assuming that petitioner had availed of the proper remedy, still the proclamation of
Sanchez by the MBC did not have to await the resolution of his motion for reconsideration by the
Comelec en banc since it was validly made upon the authority of the order issued by the
Comelecs Second Division, ordering the MBC to reconvene and include the 37 election returns in
the canvass and thereafter, proclaim the winning candidate. In this respect, our ruling in Casimiro
vs. Comelec[25] is squarely in point. We held in this case that the proclamation of the winning
candidate by the board of canvassers was authorized by the ruling of the Comelecs Second
Division ordering the board to reconvene, complete the canvass if not yet completed, and
proclaim the winning candidates even though such proclamation was made before the filing of
the motion for reconsideration with the Comelec en banc.
We wish to stress that our ruling in this case merely sustains the Comelecs position that, in the
absence of palpable errors and/or material defects [which] are clearly discernible on the faces of
16
these returns, the board of canvassers should include in the canvass the 37 election
returns[26] and that, by ruling thus, we have no intention of passing upon the verity of petitioners
imputations of electoral irregularities and acts of terrorism, which we reiterate is not in issue in a
pre-proclamation controversy, but should be resolved in a proper electoral protest. [27]
WHEREFORE, the instant petition is DISMISSED for petitioners failure to demonstrate that public
respondent Comelec committed grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing its resolution dated September 1, 1998.
SO ORDERED.
9.) LAGUMBAY VS COMELEC
FACTS : This petition prays for revision of an order of the Commission on Elections declining to
reject the returns of certain precincts of some municipalities in Mindanao. The Constitution
provides for review by this Court of the rulings of the said Commission.
The matter being urgent, and having reached the conclusion that the returns of certain
questioned precincts were "obviously manufactured" within the meaning of pertinent
jurisprudence, particularly Mitchell v. Stevens,1 we issued on December 24, 1965, a short
resolution upholding the Commission's power and duty to reject the returns of about fifty
precincts. It appearing therein that — contrary to all statistical probabilities — in the first set, in
each precinct the number of registered voters equalled the number of ballots and the number of
votes reportedly cast and tallied for each and every candidate of the Liberal Party, the party in
power; whereas, all the candidates of the Nacionalista Party got exactly zero; and in the second
set, — again contrary to all statistical probabilities — all the reported votes were for candidates
of the Liberal Party, all of whom were credited with exactly the same number of votes in each
precinct, ranging from 240 in one precinct to 650 in another precinct; whereas, all the candidates
of the Nacionalista Party were given exactly zero in all said precincts.
ISSUE WON FRAUD WAS COMMITED IN THE ELECTION
HELD : The same ratio decidendi applies to the situation in the precincts herein mentioned.
These returns were obviously false or fabricated — prima facie. Let us take for example, precinct
No. 3 of Andong, Lanao del Sur. There were 648 registered voters. According to such return all
the eight candidates of the Liberal Party got 648 each,3 and the eight Nacionalista candidates got
exactly zero. We hold such return to be evidently fraudulent or false because of the inherent
improbability of such a result — against statistical probabilities — specially because at least one
vote should have been received by the Nacionalista candidates, i.e., the vote of the Nacionalista
inspector. It is, of course, "possible" that such inspector did not like his party's senatorial line-up;
but it is not probable that he disliked all of such candidates, and it is not likely that he favored all
the eight candidates of the Liberal Party. Therefore, most probably, he was made to sign an
obviously false return, or else he betrayed his party, in which case, the election therein — if any
— was no more than a barefaced fraud and a brazen contempt of the popular polls.
Of course we agree that frauds in the holding of the election should be handled — and finally
settled — by the corresponding courts or electoral tribunals. That is the general rule, where
testimonial or documentary evidence, is necessary; but where the fraud is so palpable from the
return itself (res ipsa loquitur — the thing speaks for itself), there is no reason to accept it and
give it prima facie value.
At any rate, fraud or no fraud, the verdict in these fifty precincts may ultimately be ascertained
before the Senate Electoral Tribunal.4 All we hold now, is that the returns show "prima facie"
that they do not reflect true and valid reports of regular voting. The contrary may be shown by
candidate Climaco — in the corresponding election protest.
The well-known delay in the adjudication of election protests often gave the successful
contestant a mere pyrrhic victory, i.e., a vindication when the term of office is about to expire, or
has expired. And so the notion has spread among candidates for public office that the "important
thing" is the proclamation; and to win it, they or their partisans have tolerated or abetted the
tampering or the "manufacture" of election returns just to get the proclamation, and then let the
victimized candidate to file the protest, and spend his money to work for an empty triumph.
It is generally admitted that the practice has prevailed in all previous elections. Never was the
point pressed upon us in a more clear-cut manner. And without, in any way, modifying our stand
as outlined in the Nacionalista Party vs. Commission decision, we feel the mores of the day
require application — even extension — of the principle in the Mitchell decision, which is realistic
and common sensical even as it strikes a blow at such pernicious "grab - the - proclamation -
prolong - the - protest" slogan of some candidates or parties.
It is strongly urged that the results reported in these returns are quite "possible", bearing in mind
the religious or political control of some leaders in the localities affected. We say, possible, not
probable. It is possible to win the sweepstakes ten times; but not probable. Anyway, judges are
not disposed to believe that such "control" has proved so powerful as to convert the electors into
mere sheep or robots voting as ordered. Their reason and conscience refuse to believe that 100%
of the voters in such precincts abjectly yet lawfully surrendered their precious freedom to choose
the senators of this Republic
Indeed, social scientists might wonder whether courts could, consistently with morality and
public policy,5 render judgment acknowledging such "control" or validating such "controlled
votes" as candidate Climaco chose to call them.
10.) MAKALINTAL VS PET
17
FACTS:
Atty. Romulo B. Macalintal questioned the constitution of the Presidential Electoral Tribunal
(PET) as an illegal and unauthorized progeny of Section 4, Article VII of the Constitution:
The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-President, and may promulgate its rules for
the purpose.
While petitioner concedes that the Supreme Court is "authorized to promulgate its rules for the
purpose," he chafes at the creation of a purportedly "separate tribunal" complemented by a
budget allocation, a seal, a set of personnel and confidential employees, to effect the
constitutional mandate.
Petitioner’s averment is supposedly supported by the provisions of the 2005 Rules of the
Presidential Electoral Tribunal (2005 PET Rules), specifically:
(1) Rule 3 which provides for membership of the PET wherein the Chief Justice and the Associate
Justices are designated as "Chairman and Members," respectively;
(2) Rule 8(e) which authorizes the Chairman of the PET to appoint employees and confidential
employees of every member thereof;
(3) Rule 9 which provides for a separate "Administrative Staff of the Tribunal" with the
appointment of a Clerk and a Deputy Clerk of the Tribunal who, at the discretion of the PET, may
designate the Clerk of Court (en banc) as the Clerk of the Tribunal; and
(4) Rule 11 which provides for a "seal" separate and distinct from the Supreme Court seal.
ISSUE: Whether or not the constitution of the PET, composed of the Members of this Court, is
unconstitutional, and violates Section 4, Article VII and Section 12, Article VIII of the
Constitution.
RULING: Petition is dismissed.
The Supreme Court, as a Presidential Electoral Tribunal (PET), specifically and exclusively clothed
with jurisdiction by the Constitution to act respectively as "sole judge of all contests relating to
the election, returns, and qualifications" of the President and Vice-President.
A plain reading of Article VII, Section 4, paragraph 7, readily reveals a grant of authority to the
Supreme Court sitting en banc. It states that, “The Supreme Court, sitting en banc shall be the
sole judge of all contests relating to the election, returns and qualifications of the President or
Vice President and may promulgate its rules for the purpose."
The word "contest" in the provision means that the jurisdiction of this Court can only be invoked Concurred by: RENATO C. CORONA, Chief Justice
after the election and proclamation of a President or Vice President. There can be no "contest"
before a winner is proclaimed. FACTS:

To foreclose all arguments of petitioner, we reiterate that the establishment of the PET simply This is a Motion for Reconsideration filed by petitioner Atty. Romulo B. Macalintal of our the
constitutionalized what was statutory before the 1987 Constitution. The experiential context of Court’s Decision in G.R. No. 191618 dated November 23, 2010, dismissing his petition and
the PET in our country cannot be denied. declaring the establishment of respondent Presidential Electoral Tribunal (PET) as constitutional.

PET is not a separate and distinct entity from the Supreme Court, albeit it has functions peculiar Petitioner reiterates his arguments on the alleged unconstitutional creation of the PET:
only to the Tribunal. It is obvious that the PET was constituted in implementation of Section 4,
1. Section 4, Article VII of the Constitution does not provide for the creation of the PET.
Article VII of the Constitution, and it faithfully complies – not unlawfully defies – the
constitutional directive. The adoption of a separate seal, as well as the change in the
2. The PET violates Section 12, Article VIII of the Constitution.
nomenclature of the Chief Justice and the Associate Justices into Chairman and Members of the
Tribunal, respectively, was designed simply to highlight the singularity and exclusivity of the To bolster his arguments that the PET is an illegal and unauthorized progeny of Section 4, Article
Tribunal’s functions as a special electoral court. VII of the Constitution, petitioner invokes the ruling on the constitutionality of the Philippine
Truth Commission (PTC). Petitioner cites the concurring opinion of Justice Teresita J. Leonardo-de
It is also beyond cavil that when the Supreme Court, as PET, resolves a presidential or vice-
Castro that the PTC is a public office which cannot be created by the President, the power to do
presidential election contest, it performs what is essentially a judicial power.
so being lodged exclusively with Congress. Thus, petitioner submits that if the President,as head
of the Executive Department, cannot create the PTC, the Supreme Court, likewise, cannot create
With the explicit provision, the present Constitution has allocated to the Supreme Court, in
the PET in the absence of an act of legislature.
conjunction with latter’s exercise of judicial power inherent in all courts, the task of deciding
presidential and vice-presidential election contests, with full authority in the exercise thereof.
On the other hand, in its Comment to the Motion for Reconsideration, the Office of the Solicitor
The power wielded by PET is a derivative of the plenary judicial power allocated to courts of law,
General maintains that the constitution of the PET is “on firm footing on the basis of the grant of
expressly provided in the Constitution. On the whole, the Constitution draws a thin, but,
authority to the [Supreme] Court to be the sole judge of all election contests for the President or
nevertheless, distinct line between the PET and the Supreme Court.
Vice-President under paragraph 7, Section 4, Article VII of the 1987 Constitution.”

PET is not simply an agency to which Members of the Court were designated. Once again, the
In a nutshell, both parties just repeated the same arguments presented in the original petition
PET, as intended by the framers of the Constitution, is to be an institution independent, but not
aside from the cited issue of PTC’s constitutionality.
separate, from the judicial department, i.e., the Supreme Court.
IT’S THE SAME ISSUE: Whether or not the constitution of the PET, composed of the Members of
As regards petitioner’s claim that the PET exercises quasi-judicial functions in contravention of
this Court, is unconstitutional, and violates Section 4, Article VII and Section 12, Article VIII of
Section 12, Article VIII of the Constitution, issue raised is more imagined than real. Section 12,
the Constitution.
Article VIII of the Constitution reads:
RULING: Motion for Reconsideration is DENIED. The Court’s DECISION stands.
SEC. 12. The Members of the Supreme Court and of other courts established by law shall not be
designated to any agency performing quasi-judicial or administrative functions. The Court reiterated that the PET is authorized by the last paragraph of Section 4, Article VII of
the Constitution and as supported by the discussions of the Members of the Constitutional
Consistent with our presidential system of government, the function of "dealing with the
Commission, which drafted the present Constitution.
settlement of disputes, controversies or conflicts involving rights, duties or prerogatives that are
legally demandable and enforceable" is apportioned to courts of justice. Judicial power granted to the Supreme Court by the same Constitution is plenary. And under the
doctrine of necessary implication, the additional jurisdiction bestowed by the last paragraph of
June 7, 2011
Section 4, Article VII of the Constitution to decide presidential and vice-presidential elections
contests includes the means necessary to carry it into effect.
ANTONIO EDUARDO B. NACHURA, Associate Justice

18
The explicit reference by the framers of our Constitution to constitutionalizing what was merely
statutory before is not diluted by the absence of a phrase, line or word, mandating the Supreme
Court to create a Presidential Electoral Tribunal.
Suffice it to state that the Constitution, verbose as it already is, cannot contain the specific
wording required by petitioner in order for him to accept the constitutionality of the PET.
The Court also previously declared that the PET is not simply an agency to which Members of the
Court were designated. Once again, the PET, as intended by the framers of the Constitution, is to
be an institution independent, but not separate, from the judicial department. The vehicle for the
exercise of this power, as intended by the Constitution and specifically mentioned by the
Constitutional Commissioners during the discussions on the grant of power to this Court, is the
PET. Thus, a microscopic view, like the petitioner's, should not constrict an absolute and
constitutional grant of judicial power.
The decision therein held that the PTC “finds justification under Section 17, Article VII of the
Constitution.” A plain reading of the constitutional provisions, i.e., last paragraph of Section 4
and Section 17, both of Article VII on the Executive Branch, reveals that the two are differently
worded and deal with separate powers of the Executive and the Judicial Branches of
government. And as previously adverted to, the basis for the constitution of the PET was, in fact,
mentioned in the deliberations of the Members of the Constitutional Commission during the
drafting of the present Constitution.
Possible Questions:
 STEPS IN ELECTION CONTEST WHICH USUALLY GETS DISPOSED IN ONE YEAR
The steps involved in this contest are: First, the ballot boxes are opened before teams of three,
generally, a representative each of the court, of the protestant and of the "protestee." It is all a
questions of how many teams are organized. Of course, that can be expensive, but it would be
expensive whatever court one would choose. There were times that the Supreme Court, with
sometimes 50 teams at the same time working, would classify the objections, the kind of
problems, and the court would only go over the objected votes on which the parties could not
agree. So it is not as awesome as it would appear insofar as the Court is concerned. What is
awesome is the cost of the revision of the ballots because each party would have to appoint
one representative for every team, and that may take quite a big amount.]
 Doctrine of necessary implication-- What is implied in a statute is as much a part
thereof as that which is expressed. This is StatCon but we never know. He seems to
ask questions we aren’t expecting to be raised.
 The question raised by OSG was the petitioner’s locus standi. In both petitions, OSG
maintained that the petitioner is without standing to file the petition and is estopped
from assailing the jurisdiction of the PET.
19
As regards petitioners claim that the PET exercises quasi-judicial functions in contravention of
Section 12, Article VIII of the Constitution, we point out that the issue in Buac v. COMELEC[43]
involved the characterization of the enforcement and administration of a law relative to the
conduct of a plebiscite which falls under the jurisdiction of the Commission on Elections.
However, petitioner latches on to the enumeration in Buac which declared, in an obiter, that
contests involving the President and the Vice-President fall within the exclusive original
jurisdiction of the PET, also in the exercise of quasi-judicial power.
The issue raised by petitioner is more imagined than real. Section 12, Article VIII of the
Constitution reads
SEC. 12. The Members of the Supreme Court and of other courts established by law shall not be
designated to any agency performing quasi-judicial or administrative functions.
The traditional grant of judicial power is found in Section 1, Article VIII of the Constitution which
provides that the power shall be vested in one Supreme Court and in such lower courts as may
be established by law. Consistent with our presidential system of government, the function of
dealing with the settlement of disputes, controversies or conflicts involving rights, duties or
prerogatives that are legally demandable and enforceable [44] is apportioned to courts of justice.
With the advent of the 1987 Constitution, judicial power was expanded to include the duty of the
courts of justice to settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.[45] The power was expanded, but it remained absolute.
The set up embodied in the Constitution and statutes characterizes the resolution of electoral
contests as essentially an exercise of judicial power.
At the barangay and municipal levels, original and exclusive jurisdiction over election contests is
vested in the municipal or metropolitan trial courts and the regional trial courts, respectively.
At the higher levels city, provincial, and regional, as well as congressional and senatorial exclusive
and original jurisdiction is lodged in the COMELEC and in the House of Representatives and
Senate Electoral Tribunals, which are not, strictly and literally speaking, courts of law. Although
not courts of law, they are, nonetheless, empowered to resolve election contests which involve,
in essence, an exercise of judicial power, because of the explicit constitutional empowerment
found in Section 2(2), Article IX-C (for the COMELEC) and Section 17, Article VI (for the Senate
and House Electoral Tribunals) of the Constitution. Besides, when the COMELEC, the HRET, and
the SET decide election contests, their decisions are still subject to judicial review via a petition
for certiorari filed by the proper party if there is a showing that the decision was rendered with
grave abuse of discretion tantamount to lack or excess of jurisdiction.[46]
It is also beyond cavil that when the Supreme Court, as PET, resolves a presidential or vice-
presidential election contest, it performs what is essentially a judicial power. In the landmark
case of Angara v. Electoral Commission,[47] Justice Jose P. Laurel enucleated that it would be
inconceivable if the Constitution had not provided for a mechanism by which to direct the course
of government along constitutional channels. In fact, Angara pointed out that [t]he Constitution
is a definition of the powers of government. And yet, at that time, the 1935 Constitution did not
contain the expanded definition of judicial power found in Article VIII, Section 1, paragraph 2 of
the present Constitution.
With the explicit provision, the present Constitution has allocated to the Supreme Court, in
conjunction with latters exercise of judicial power inherent in all courts,[48] the task of deciding
presidential and vice-presidential election contests, with full authority in the exercise thereof.
The power wielded by PET is a derivative of the plenary judicial power allocated to courts of law,
expressly provided in the Constitution. On the whole, the Constitution draws a thin, but,
nevertheless, distinct line between the PET and the Supreme Court.
If the logic of petitioner is to be followed, all Members of the Court, sitting in the Senate and
House Electoral Tribunals would violate the constitutional proscription found in Section 12,
Article VIII. Surely, the petitioner will be among the first to acknowledge that this is not so. The
Constitution which, in Section 17, Article VI, explicitly provides that three Supreme Court Justices
shall sit in the Senate and House Electoral Tribunals, respectively, effectively exempts the
Justices-Members thereof from the prohibition in Section 12, Article VIII. In the same vein, it is
the Constitution itself, in Section 4, Article VII, which exempts the Members of the Court,
constituting the PET, from the same prohibition.
We have previously declared that the PET is not simply an agency to which Members of the Court
were designated. Once again, the PET, as intended by the framers of the Constitution, is to be an
institution independent, but not separate, from the judicial department, i.e., the Supreme Court.
McCulloch v. State of Maryland[49] proclaimed that [a] power without the means to use it, is a
nullity. The vehicle for the exercise of this power, as intended by the Constitution and specifically
mentioned by the Constitutional Commissioners during the discussions on the grant of power to
this Court, is the PET. Thus, a microscopic view, like the petitioners, should not constrict an
absolute and constitutional grant of judicial power.
One final note. Although this Court has no control over contrary people and naysayers, we
reiterate a word of caution against the filing of baseless petitions which only clog the Courts
docket. The petition in the instant case belongs to that classification
11.) LEGARDA VS DE CASTRO
Loren B. Legarda filed an election protest against Noli L. de Castro before the Presidential
Electoral Tribunal (PET). De Castro filed a motion for its outright dismissal but the PET confirmed
its jurisdiction over the protest. De Castro filed a motion for reconsideration assailing the PET
20
resolution. He argues that where the correctness of the number of votes is the issue, the best
evidence are the ballots; that the process of correcting the manifest errors in the certificates of
canvass or election returns is a function of the canvassing bodies; that once the canvassing
bodies had done their functions, no alteration or correction of manifest errors can be made; that
since the authority of the Tribunal involves an exercise of judicial power to determine the facts
based on the evidence presented and to apply the law based on the established facts, it cannot
perform the ministerial function of canvassing election returns; that the averments contained in
the protest are mere conclusions of law which are inadequate to form a valid cause of action;
and that the allegations are not supported by facts. He also contends that the Tribunal cannot
correct the manifest errors on the statements of votes (SOV) and certificates of canvass (COC).
Issues:
1. Can the PET correct the manifest errors in the SOV and COC?
2. Is there a need to resort to revision of ballots?
3. Was the election protest sufficient in form and substance?
Held:
1. The constitutional function as well as the power and the duty to be the sole judge of all
contests relating to the election, returns and qualification of the President and Vice-President is
expressly vested in the PET, in Section 4, Article VII of the Constitution. Included therein is the
duty to correct manifest errors in the SOVs and COCs.
2. We agree that the ballots are the best and most conclusive evidence in an election contest
where the correctness of the number of votes of each candidate is involved. However, we do not
find any reason to resort to revision in the first part of the protest, considering that
the protestant concedes the correctness of the ballot results, concerning the number of votes
obtained by both protestant and protestee, and reflected in the election returns. Protestant
merely seeks the correction of manifest errors, that is, errors in the process of different levels
of transposition and addition of votes. Revision of ballots in case of manifest errors, in these
circumstances, might only cause unwarranted delay in the proceedings.
3. In the instant protest, protestant enumerated all the provinces, municipalities and cities where
she questions all the results in all the precincts therein. The protest here is sufficient in form and
substantively, serious enough on its face to pose a challenge to protestee's title to his office. The
instant protest consists of alleged ultimate facts, not mere conclusions of law, that need to be
proven in due time.
Considering that we find the protest sufficient in form and substance, we must again stress
that nothing as yet has been proved as to the veracity of the allegations. The protest is only
sufficient for the Tribunal to proceed and give the protestant the opportunity to prove her
case pursuant to Rule 61 of the PET Rules. Although said rule only pertains to revision of ballots,
nothing herein prevents the Tribunal from allowing or including the correction of manifest errors,
pursuant to the Tribunals rule-making power under Section 4, Article VII of the
Constitution. (Legarda vs De Castro, P.E.T. Case 0003, March 31, 2005)
DE CASTRO: The electoral returns (ERs) are public documents which enjoy the presumption of
regularity of the facts stated therein. The ERs bore the security features also which proved their
genuineness. Furthermore, assuming that the results of the pilot precints retabulation was
favorable to Legarda, still the results of the elections will remain unchanged. (may lead pa akong
881,722 votes asa ka pang manalo!)

VERSION 2.0 On Oct 2007, the hearing commissioner of PET submitted his final report recommending the
dismissal because:
facts of the case
1. Legarda failed to prove her case
Congress as National Board of Canvassers (NBC) proclaimed De Castro as Vice President elect in
the 2004 elections with 15, 100,431 votes. His opponent Legarda, garnering 14,218,709 votes, 2. Her candidacy for senator deemed as abandonment of her protest (Defensor-Santiago
filed an election protest with PET to annul the proclamation of De Castro. v. Ramos)

GROUNDS: basically states that there was electoral fraud carried through dagdag bawas system 3. Pilot-tested revision of ballots would not affect the results of the 2004 elections.
in the municipalities concerned which reflected wrong numbers in their electoral returns
issue
First Aspect – 9,007 precints in 6 provinces, 1 city and 5 municipalities were falsified and
manipulated. The correct results were not properly reflected In the election documents which 1. WON Legarda abandoned her protest? YES
was used in the final canvass used in the proclamation of De Castro.
2. WON there was electoral fraud? NO.
Second Aspect – there is a need for revision of ballots in 124,404 precints
ratio
PROCEDURAL – De Castro filed MTD but it was not granted because the protest was sufficient in
form and substance. However PET reserved its right to rule on the merits of the protest. On the issue of abandonment of protest

On June 2005, PET ascertained the number of ballot boxes subject to challenge and found that
22,679 boxes were involved. However Legarda abandoned the other provinces and focused on
Lanao del Sur with 1,568 boxes. (9,931 votes only)
While the case was pending, PET ordered the parties not to sensationalize the case by divulging
information to the media. However the parties continued to publicize the investigation as
evidenced by numerous articles from different major newspapers which quoted the legal
teams of the parties. PET warned the parties and reminded them that these matters are sub
judice.
As for the second aspect, there was revision of ballots from Cebu wherein a team of officials and
trained personnel recounted the ballots therein (for 10 months for one province only!!). Due to
the failure of Legardo to pay the required amount for revision of the ballots, the second aspect
was dismissed.
EVIDENCE PRESENTED (Legarda): sample electoral returns from the pilot precints in Lanao del
Sur (Balindong and Taraka) and the statement of votes were not matching! May dagdag-bawas
dito so malamang meron din sa maraming lugar!
The court used the case of Defensor-Santiago v. Ramos wherein the protest filed by the former in
the 1992 Presidential elections was deemed abandoned when she assumed her seat in the
Senate. This would be in the interest of the public as it would dissipate the aura of uncertainty as
to the results of the 1992 elections. This case is on all fours with the present controversy, except
that Legarda was VP candidate. For being elected senator in 2007, she is deemed to have
abandoned her 2004 VP election protest
On the issue of electoral fraud
Legarda failed to rebut the presumption of regularity of ER as public documents. The ER used by
Congress in proclaiming De Castro as VP elect were authentic and duly executed in the regular
course of business. To overcome the presumption of regularity, there must be clear and
convincing evidence.
1. Legarda: the security features in the ERs retrieved by Congress and COMELEC were
different!
SC: Nope, not enough as this is not evidence that ERs were fake and spurious. Testimonial
evidence presented not sufficient as those examined were from a sample set only, and witnesses
were able to identify security features naman!

21
 2. Legarda: there was a break-in in Congress to switch the ERs interest involved in the matter of who is the real choice of the electorate. The most relevant
precedent on this issue is Defensor-Santiago v. Ramos, a decision rendered by this Tribunal,
SC: No conclusive evidence presented! Deputy for Operations from HoR denied the allegations which held that:
The term of office of the Senators elected in the 8 May 1995 election is six years, the first three
And assuming arguendo that all the votes in the 497 precints included in the pilot areas for the
of which coincides with the last three years of the term of the President elected in the 11 May
first aspect (99,400 votes) would be considered in favor of Legarda, The margin of De Castro
1992 synchronized elections. The latter would be Protestant Santiago’s term if she would
would still be 881,722 votes! Those proven (2 municipalities in Lanao del Sur only consists of
succeed in proving in the instant protest that she was the true winner in the 1992 elections. In
9,931 votes.
assuming the office of Senator then, the Protestant has effectively abandoned or withdrawn this
protest, or at the very least, in the language of Moraleja, abandoned her “determination to
Legarda: But I did not have enough time to gather more evidence!
protect and pursue the public interest involved in the matter of who is the real choice of the
SC: PET was liberal already in allowing the first aspect of the case already. It cannot be concluded electorate.” Such abandonment or withdrawal operates to render moot the instant protest.
that a half million votes were illegally obtained based on the evidence presented by the Moreover, the dismissal of this protest would serve public interest as it would dissipate the aura
petitioner. Her evidence is not sufficient! of uncertainty as to the results of the 1992 presidential election, thereby enhancing the all-[too]
crucial political stability of the nation during this period of national recovery.
VERSION 3.0 It must also be stressed that under the Rules of the Presidential Electoral Tribunal, an election
protest may be summarily dismissed, regardless of the public policy and public interest
MAIN POINT implications thereof, on the following grounds:
(1) The petition is insufficient in form and substance;
We are also in agreement that the protestant, in assuming the office of Senator and discharging
(2) The petition is filed beyond the periods provided in Rules 14 and 15 hereof;
her duties as such, which fact we can take judicial notice of, has effectively abandoned or
(3) The filing fee is not paid within the periods provided for in these Rules;
withdrawn her protest, or abandoned her determination to protect and pursue the public interest
(4) The cash deposit, or the first P100,000.00 thereof, is not paid within 10 days after the filing of
involved in the matter of who is the real choice of the electorate.
the protest; and
ACTS OF THE CASE: (5) The petition or copies thereof and the annexes thereto filed with the Tribunal are not clearly
legible.
Petitioner Loren B. Legarda filed before the Presidential Electoral Tribunal a petition to annul the Other grounds for a motion to dismiss, e.g., those provided in the Rules of Court which apply in a
proclamation of Respodent Noli L. De Castro as the Vice-President of the Philippines. The protest suppletory character, may likewise be pleaded as affirmative defenses in the answer. After
filed by Legarda consisted of two aspects. The First Aspect covers the alleged erroneous, which, the Tribunal may, in its discretion, hold a preliminary hearing on such grounds. In sum, if
manipulated and/or falsified results of the election. While the Second pertains to the revision of an election protest may be dismissed on technical grounds, then it must be, for a decidedly
the ballots of the precincts specified in the protest. The Second Aspect was earlier dismissed by stronger reason, if it has become moot due to its abandonment by the Protestant.
the Supreme Court for the failure of Legarda to pay the required deposit for the expenses.
In the case at bar, protestant’s tenure in the Senate coincides with the term of the Vice-
ISSUE: Presidency 2004-2010, that is the subject of her protest.

Whether or not petitioner clearly and convincingly proved the presence of manipulation or On the matter of the alleged spurious ER copies, we agree with the protestee that the protestant
falsification of election results had not adequately and convincingly rebutted the presumption that as public documents, the
Congress-retrieved ER copies, used for the proclamation of the protestee by the NBC, are
HELD: authentic and duly executed in the regular course of official business. The evidence adduced by
protestee to show that the supposed security features and markings in the Congress-retrieved
Petition DISMISSED. ERs and the COMELEC/NAMFREL’s copies are different, did not categorically establish that the
Congress-retrieved ERs are fake and spurious. To overcome the presumption of regularity, there
We are also in agreement that the protestant, in assuming the office of Senator and discharging must be evidence that is clear, convincing and more than merely preponderant. Absent such
her duties as such, which fact we can take judicial notice of, has effectively abandoned or convincing evidence, the presumption must be upheld. In fact, the records show that even the
withdrawn her protest, or abandoned her determination to protect and pursue the public witnesses presented by the protestant testified that they were able to discern security features

22
and markings in the Congress-retrieved ERs. The records also show that witnesses were not
made to examine all Congress-retrieved ERs in making observations relative to security features
and markings, but only a sample set thereof was utilized, resulting in grave insufficiency in the
evidence presented by protestant.
12. FERMO VS COMELEC
Before us is a Petition for Certiorari (with prayer for the issuance of a restraining order or a writ
of preliminary injunction) assailing the Resolution[1] of the Commission on Elections
(COMELEC)[2] in SPR No. 4-99 entitled "MANUEL D. LAXINA, SR. vs. ROQUE FERMO and Hon.
AMANTE T. BANDAYREL" which annulled the order of the Metropolitan Trial Court (MTC) of
Quezon City, Branch 40 granting petitioner Roque Fermos (FERMO) motion for execution
pending appeal.
The factual antecedents of this case are as follows:
"Manuel Laxina, Sr. and Roque Fermo were both candidates for the position of Punong Barangay,
Barangay Batasan Hills, District II, Quezon City, during the May 12, 1997 elections. The canvassed
results showed Laxina obtaining 1,957 votes and Fermo getting 1,712 votes. With a plurality of
245 votes, Laxina was proclaimed duly elected to the post. Subsequently, Fermo filed an election
protest questioning the results in four (4) clustered precincts of Capitol Bliss and twenty four (24)
COA precincts on the ground that the elections therein was attended by massive fraud and
serious irregularities.
Summoned to answer, protestee Laxina filed his responsive pleading denying protestants
allegations of anomalies and interposed the defense that the conduct of the elections in
Barangay Batasan Hills, District II, Quezon City, from the special registration of voters, the
campaign as well as the voting and all the way to and until the counting, canvassing and tallying
of votes and the proclamation of the winning candidates during the recent barangay elections
has been generally honest, orderly and peaceful, with the result of the elections being truly
reflective of the will of the electorate in the said barangay.'
Protestee then moved for the dismissal of the case on the ground that the same was filed
beyond the ten day period allowed by law. The Court ruled that the case was seasonably filed,
dismissed the motion to dismiss and ordered a judicial recount. For the purpose, a revision
committee was constituted. After all the proceedings were terminated, the Court a quo rendered
its decision holding that Fermo won the contested post. The Courts decision was promulgated on
January 8, 1999. On the same date, Laxina filed a Notice of Appeal manifesting his intent to
elevate the case to the Commission on Elections.
On January 12, 1999, Roque Fermo filed a Motion for Execution pending Appeal grounded on the
following averments:
23
That a decision was promulgated by the Honorable Court on January 8, 1999 whereby the
protestant Roque Fermo was declared the winner in the May 12, 1997 Barangay Election in
Batasan Hills, District II by a plurality of ONE HUNDRED THIRTY FOUR (134) votes over protestee,
Manuel Laxina;
That there is good and special reason for the issuance of a Writ of Execution Pending Appeal, i.e.,
the possibility that the term of the contested seat might have expired already long before the
appeal has been decided;
On January 19, 1999, Laxina opposed the motion maintaining that the Court had lost jurisdiction
over the case because of the perfection of the appeal.
On January 20, 1999, the Court issued an Order granting execution pending appeal, the pertinent
part of which reads:
The Court is clothed with discretionary power to execute judgment pending appeal upon good
reasons. The good reasons mentioned in protestants Motion for Execution Pending Appeal is the
possibility that the term of the contested seat of Barangay Captainship in Barangay Batasan Hills,
Quezon City might have expired long before the appeal has been decided, considering also that
the term of the contested office had past almost midway of the whole term. To do otherwise
would not serve the end of justice."[3]
Not satisfied with the decision of the MTC, respondent Manuel D. Laxina (LAXINA) appealed to
the COMELEC, which reversed the order of the MTC granting herein petitioners motion for
execution pending appeal. In reversing the MTC, the COMELEC found that the possibility that the
term of the contested seat might expire by the time the appeal is decided was not a "good
reason" to warrant execution pending appeal.
Hence this petition with prayer for the issuance of a temporary restraining order or a writ of
preliminary injunction where petitioner assigns the following errors:
"RESPONDENT COMELEC ACTED WITHOUT OR IN EXCESS OF JURISDICTION AND/OR WITH
GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OR EXCESS OF JURISDICTION -
A. IN HOLDING THAT THE REASON INVOKED BY PETITIONER IN HIS MOTION FOR EXECUTION
PENDING APPEAL, i.e., SHORTNESS OF TERM IS INSUFFICIENT OR DOES NOT QUALIFY AS
"GOOD REASONS" TO WARRANT EXECUTION PENDING APPEAL.
B. IN ANNULLING THE JANUARY 20, 1999 ORDER OF MTC GRANTING THE MOTION FOR
EXECUTION PENDING APPEAL ON THE GROUND THAT THE MTC COMMITTED GRAVE ABUSE OF
DISCRETION.
C. IN ORDERING PETITIONER TO CEASE AND DESIST FROM FURTHER PERFORMING THE
FUNCTIONS OF PUNONG BARANGAY AND TO RELINQUISH THE SAME TO PRIVATE
RESPONDENT PENDING FINAL RESOLUTION OF THE LATTERS APPEAL, IN EFFECT, GRANTING
EXECUTION PENDING APPEAL IN FAVOR OF PRIVATE RESPONDENT WITHOUT ANY MOTION
THEREFOR."[4]
In support of his petition, FERMO maintains that the COMELEC acted with grave abuse of
discretion in ruling that the possibility that the term of the contested seat might expire long
before the appeal is decided is not a good reason to warrant execution pending appeal. FERMOs
theory is that such reason taken together with the finding of the MTC that the election was
tainted with fraud and irregularities is sufficient reason to grant execution pending appeal. He
further argues that even assuming the COMELEC did not err in annulling the order of execution,
the COMELEC should not have ordered him to relinquish the position as this is tantamount to
granting execution pending appeal in favor of LAXINA who did not file any such motion for that
purpose nor cite any "good reasons" therefor. Moreover, the order of COMELEC in effect
prejudged the pending appeal of FERMO considering that it ordered LAXINA to discharge the
functions of Punong Barangay pending the resolution of the appeal.
On the other hand, private respondent LAXINA agrees with the COMELECs conclusion that the
"shortness of term" is not "good reason" to justify execution pending appeal. He argues that
petitioners allegations are mere conjectures unsupported by any factual or legal basis.
Public respondent COMELEC contends that since the term of Barangay officials was extended to
five (5) years or until 2002, the reliance of the petitioner on the "shortness of term" to justify
execution pending appeal is not justified. Moreover, the decision of the MTC "contains
questionable rulings which casts doubt on its validity." It was not clearly established that
petitioner in fact won.[5]
The issue to be resolved in this petition is whether the COMELEC acted with grave abuse of
discretion amounting to lack of or excess of jurisdiction in annulling the order of the MTC
granting herein petitioners motion for execution pending appeal on the ground that there were
no "good reasons" for the issuance therefor.
We rule in the negative.
Execution of judgments pending appeal in election cases is governed by Section 2, Rule 39 [6] of
the Rules of Court which reads:
"Sec. 2. Discretionary execution.
(a) Execution of a judgment or final order pending appeal. - On motion of the prevailing party
with notice to the adverse party filed in the trial court while it has jurisdiction over the case and
is in possession of either the original record or the record on appeal, as the case may be, at the
time of the filing of such motion, said court may, in its discretion, order execution of a judgment
or final order even before the expiration of the period to appeal.
After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in
the appellate court.
24
Discretionary execution may only issue upon good reasons to be stated in a special order after
due hearing."
A valid exercise of the discretion to allow execution pending appeal requires that it should be
based "upon good reasons to be stated in a special order." The following constitute "good
reasons" and a combination of two or more of them will suffice to grant execution pending
appeal: (1.) public interest involved or will of the electorate; (2.) the shortness of the remaining
portion of the term of the contested office; and (3.) the length of time that the election contest
has been pending (emphasis supplied).[7] In Lauban vs. COMELEC[8], this Court ruled that
"shortness of the remaining term of office and posting a bond are not good reasons for execution
of a judgment pending appeal xxx".[9]
In the present case, the petitioner relies solely on one ground to support his
petition i.e. "shortness of term". We find that the COMELEC committed no reversible error in
ruling that:
"Shortness of term, alone and by itself cannot justify premature execution. It must be manifest in
the decision sought to be executed that the defeat of the protestee and the victory of the
protestant has been clearly established."[10]
Moreover, Republic Act No. 8524,[11] which took effect in 1998, has extended the term of office
of barangay officials to five (5) years, and this negates, or removes the factual basis for the
finding of the MTC that the term of the contested office "had past almost midway of the whole
term." COMELEC Chairman Harriet Demetriou correctly points out in her SEPARATE
CONCURRING OPINION[12] that:
"Obviously, the court a quo erroneously assumed that the term of the barangay captains is only
for three (3) years. Hence, the conclusion that the term of the contested office is almost in its
midway. This, too, has no leg to stand on.
It shall be worth stressing that Republic Act No. 8524 which took effect sometime in 1998
extended the term of office of barangay officials to five (5)years. Thus, it provides:
Section 1. Section 43 of Republic Act No. 1760, otherwise known as the Local Government Code
of 1991, is hereby amended to read as follows:
SEC. 43. Term of Office. xxx xxxx
c the term of barangay officials and members of the sangguniang kabataan shall be for five (5)
years, which shall begin after the regular election of barangay officials on the second Monday of
May 1997 xxx xxx.
Sec. 2. The provisions of this Act shall apply to the incumbent barangay officials xxx xxxx.
Perfunctorily, the term of the contested office will expire in the year 2002 or more or less, three "WHEREFORE, the decision appealed from is AFFIRMED with a modification in that the actual
years from now. "[13] damages of P50,000.00 are hereby reduced to P40,000.00 and the moral damages P100,000.00
awarded to Erlinda Irigo are deleted. Costs de officio.
Petitioners argument that COMELECs nullification of the MTC order does not imply that LAXINA is
entitled to discharge the functions of Punong Brangay and that FERMO should cease and desist "SO ORDERED."
from performing said functions is flawed. The order of the COMELEC annulling the grant of
execution pending appeal would be inutile if it did not have the effect of authorizing LAXINA to The antecedents:
discharge the functions of Punong Barangay during the pendency of the appeal. When the
In the fateful evening of January 21, 1988, the Provincial Board of Canvassers for the Province of
COMELEC nullified the writ of execution pending appeal in favor of FERMO, the decision of the
Davao Oriental, composed of 1.) the Provincial Election Supervisor Florezil Agujetas, as Chairman,
MTC proclaiming FERMO as the winner of the election was stayed[14] and the "status quo" or the
2.) Provincial Prosecutor Salvador Bijis, as Vice Chairman, and 3.) Division Superintendent of
last actual peaceful uncontested situation preceding the controversy[15] was restored. Thus, the
Public Schools in said province, Benjamin Miano,[2] as member, proclaimed the winners for
COMELEC correctly ordered FERMO to cease and desist from performing the functions of Punong
Governor, Vice-Governor, and Provincial Board Members for Davao Oriental in the January 18,
Barangay considering that LAXINA was the proclaimed winner of the election prior to FERMOs
1988 election. The candidates proclaimed were:
filing of the election protest. The order for FERMO to relinquish his post to LAXINA pending final
resolution of the appeal is a logical and necessary consequence of the denial of execution
PROCLAIMED CANDIDATES
pending appeal.
Name No. of Votes
Finally, there is nothing in the COMELEC Resolution which shows that the COMELEC made
"conclusionary findings" which would in effect "pre-judge" the MTC decision itself. The For Governor:
Resolution categorically stated that the COMELEC shall not attempt to resolve who between
LAXINA and FERMO has the right to occupy the contested seat for that question will Leopoldo Lopez 59,309 votes
appropriately be settled in the pending appeal. Although the Resolution cited certain "lapses
patent on the decision itself" which "cast a cloud of uncertainty over the victory of Fermo", the Francisco Rabat 51,191 votes
observation was made to stress that no other justification other than the "shortness of term"
For Vice-Governor:
would justify premature execution.
Modesto Avellanosa 46,353 votes
WHEREFORE, the instant petition is hereby DISMISSED for failure of the petitioner to show that
respondent Commission on Elections acted with grave abuse of discretion in rendering the Josefina Sibala 54,083 votes
challenged Resolution dated September 16, 1999 in SPR No. 4-99.
For Provincial Board Members
Costs against petitioners.
1. Cirilo R. Valles 42,394 votes
SO ORDERED.
2. Ma. Elena Palma Gil 41,557 votes

3. Antonio Alcantara 39,104 votes

13.) AGUJETAS VS CA
4. Dr. Capistrano Roflo 37,301 votes
Petitioners Florezil Agujetas and Salvador Bijis, former Chairman and Vice-Chairman, respectively
of the Provincial Board of Canvassers for the Province of Davao Oriental assail the decision of the 5. Orlando Rodriguez 34,914 votes
public respondent Court of Appeals which affirmed the decision of the Regional Trial Court of
Mati, Davao Oriental finding them guilty as charged for failure to proclaim a winning elected 6. Alfredo Abayon 34,191 votes
candidate. The dispositive portion of the Court of Appeals decision[1] in CA-G.R. CR No. 09689
reads: 7. Justina Yu 32,360 votes

25
8. Pedro Pena 30,679 votes
The eighth board member proclaimed, Pedro Pena, garnered 30,679 votes when another
candidate for the Board, Erlinda Irigo, got 31,129 or 450 more votes than Pena.
Before the proclamation was made, when the certificate of canvass and proclamation statements
of winning candidates were finished, a verbal protest was lodged by Mrs. Maribeth Irigo Batitang,
daughter of candidate Irigo and her designated representative during the canvassing
proceedings, addressed to the Tabulation Committee.
At 8:00 o'clock in the morning of January 22, 1988, the Board resumed its session and undertook
the following activities:
"1. Opening of Ballot Box No. CA-301596 and sealed by Metal Seal No. 204767 at exactly 10:25
a.m.
"2. Continued preparing all reports called for submissions to COMELEC, Regional Office and
Manila.
"3. Reconciliation of entries in the tally sheets. (Exhs. "E" and "E-1")
Considering, however, that the protest was verbal and not officially brought to the attention of
the Provincial Board of Canvassers during official session, the same was not given appropriate
official recognition. (Exh. "7-B", p. 2, Minutes of Provincial Board of Canvassers, January 21, 1988)
The following day, January 23, 1988, Board Member Candidate Erlinda V. Irigo filed her written
protests[3] with the Board of Canvassers. (Exh. "F")
Meanwhile, Francisco Rabat, a losing gubernatorial candidate in Davao Oriental filed with the
COMELEC a complaint against the three board members for violation of BP 881 (Omnibus
Election Code) and RA 6646 (The Electoral Reform Law of 1987). After a preliminary investigation
was conducted by the COMELEC, criminal charges were filed against the Board Members. The
pertinent portions of the information in Criminal Case No. 1886 for Violation of 2nd Paragraph of
Section 231 in Relation to Section 262 of the Omnibus Election Code read:
"That on or about January 21, 1988, in the Municipality of Mati, Province of Davao Oriental,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused as
Chairman, Vice-Chairman and Third Member, respectively, of the Provincial Board of Canvassers
of Davao Oriental in the January 18, 1988 elections, conspiring with, confederating together and
mutually helping one another, did, then and there, willfully and unlawfully fail to proclaim Erlinda
Irigo as elected Sangguniang Panlalawigan Member candidate who obtained 31,129 votes, the
eighth highest number of votes cast in said province but instead proclaimed candidate Pedro
Pena who obtained only 30,699 votes."
"CONTRARY TO LAW"[4]
26
After trial on the merits, the trial court rendered a decision, the dispositive portion of which
reads:
"WHEREFORE, in view of all the foregoing considerations, Criminal Cases Nos. 1885 and 1887 are
hereby DISMISSED, with costs de oficio, and the accused considered acquitted. Their bail bonds
are ordered canceled and released.
"In Criminal Case No. 1886, the Court finds the accused Florezil Agujetas, Salvador Bijis and
Benjamin Miano GUILTY beyond reasonable doubt as principals for violation of Section 231,
second paragraph, of Batas Pambansa Blg. 881, as amended, otherwise known as the "Omnibus
Election Code of the Philippines", and hereby sentences each of them to ONE (1) YEAR
IMPRISONMENT which shall not be subject to probation. In addition, they are sentenced to suffer
disqualification to hold public office and deprivation of the right of suffrage. Said accused are
ordered to pay, jointly and severally, Erlinda Irigo the amounts of P50,000.00 as actual damages,
P15,000.00 as and for attorney's fees, and P100,000.00 as moral damages, plus the costs of the
proceedings.
"Let copies hereof be furnished the Honorable Chairman, Commission on Elections, and the
Honorable Secretaries of Justice and Education, Culture and Sports.
"SO ORDERED." (pp. 43-44, Decision)
The three accused appealed to the Court of Appeals which rendered the decision assailed in this
petition.
Petitioners impute to the respondent court the following errors:
I
The Court of Appeals erred in affirming the decision of conviction because:
a. It is the failure to make a proclamation on the basis of the Certificate of Canvass, and not mere
erroneous proclamations, which is punishable under Sec. 262 in relation to Sec. 231 (2) of the
Omnibus Election Code.
b. A protest made to the verification/tabulation committee does not constitute a protest to the
Board of Canvassers itself.
c. The functus oficio rule is applicable to the present case.
d. Credence should not have been given to hearsay testimony to establish the alleged protest to
the Board of Canvassers.
II
The Court of Appeals erred in awarding damages to a person who is not a party to the case.
We find the petition without merit.
On the first assigned error, the issue hinges on the question of what is being penalized by the
pertinent provision of the Omnibus Election Code. Petitioners argue that they are not liable
under the said law because they complied with all the requirements of Sec. 231 of the Omnibus
Election Code - 1. a certificate of canvass was prepared, 2. the same was duly supported by a
statement of votes of each of the candidates, and 3. it was on the basis of the certificate of
canvass that the winners were proclaimed. Only, the certificate was erroneous.
According to petitioners, the Omnibus Election Code does not punish the preparation of an
incorrect certificate of canvass, nor an erroneous proclamation made by the Board; what it does
punish is that, having thus prepared the corresponding certificate, the board for some reason
fails to make the corresponding proclamation on the basis thereof.
On the other hand, the People's counsel maintains that petitioners' challenges on this particular
issue is a question of semantics, a mere play of words; for while the prosecution maintains that
there was a failure to proclaim the winning candidate, petitioners on the other hand, counter
that there was merely an erroneous proclamation of the losing candidate; that petitioners forget
that in proclaiming an erroneous winner they actually failed to proclaim the winning candidate,
in this case, Erlinda Irigo. Respondents further argue that the situation presented by petitioners
would not exculpate them from criminal responsibility for, whichever way the matter may be
looked into, whether as erroneous proclamation of a losing candidate or failure to proclaim the
winning candidate, the result is the same - the winning candidate was not proclaimed, and
hence, injustice is the end result.
We agree with the respondents.
The second paragraph of Section 231 of the Omnibus Election Code reads:
The respective board of canvassers shall prepare a certificate of canvass duly signed and affixed
with the imprint of the thumb of the right hand of each member, supported by a statement of
the votes and received by each candidate in each polling place and, on the basis thereof, shall
proclaim as elected the candidates who obtained the highest number of votes cast in the
province, city, municipality or barangay. Failure to comply with this requirement shall constitute
an election offense."
To go by the explanation as proposed by the petitioner would be tantamount to tolerating and
licensing boards of canvassers to "make an erroneous proclamation" and still be exculpated by
just putting up the inexcusable defense that the "foul-up resulted from the erroneous
arrangement of the names of candidates"[5] in one municipality or that "the basis of their
proclamation was the erroneous ranking made by the tabulation committee." That would be a
neat apology for allowing the board to be careless in their important task by simply claiming that
they cannot be held liable because they did their "duty" of proclaiming the winning
candidates on the basis of the certificate of canvass - even "erroneous" certificates - which they
made.
27
At this point, it is appropriate to quote certain portions of the Resolution in IPD Case No. 88-100,
disposing of the complaint filed with the COMELEC issued by Regional Election Director
Resurreccion Borra of Region XI, in relation to the preliminary investigation conducted by him on
said case. Director Borra testified on this resolution[6] (Exh. Z) under cross-examination by the
prosecution, certain portions of which are material to the case:
"But there is one incontrovertible fact that the respondents miserably failed to dispute. This
undeniable fact is conveniently ignored by Respondents' Memorandum. In the exhibits of the
complainant, the computerized tabulation of votes based from the statements of votes by
precinct in each of the 121 Municipalities of Davao Oriental for all of the 600 precincts and even
admitted by the Respondents that there was no error in the tabulation of votes in CA 26-
A. Erlinda V. Irigo got 31,129 votes and Pedro T. Pena only 30,679 votes or a margin of 450 votes
by Irigo over Pena. From the ranking, Irigo would have been ahead of Pena, and she should have
been No. 8 in the winning list of 8 candidates instead of Pena. But in the Certificate of Canvass of
Votes and Proclamation of Winning Candidates for Provincial Offices, Pedro T. Pena was included
as No. 8 in the winning list and proclaimed as No. 8 Member of the Sangguniang Panlalawigan of
Davao Oriental by the Provincial Board of Canvassers.
xxx xxx xxx
"The Complainant, in presenting the computerized summary tabulation of votes for each precinct
per municipality of the Province, admitted that the PBC prepared the statements of votes. x x x
The statements of votes (CE 26-A) should have been the basis for the proclamation of the
winning candidates for Provincial Offices. Complainant's documentary and testimonial evidences
showed that the PBC proclaimed Pedro Pena who was not among those candidates who
obtained the 8 highest number of votes cast in the province per municipality by precinct which
violated the legal requirement of the 2nd paragraph of Section 231 of BP No. 881 as amended.
"The respondents were not able to explain their failure to comply with the requirement that (sic)
the basis for the proclamation of Pena when he was not among the eight candidates who
obtained the highest number of votes as evidenced by the statements of votes. In fact they
admitted that the basis was not the statement of votes but the erroneous ranking by the
Tabulators. x x x"[7]
It appears from the foregoing resolution of Director Borra that it was difficult to make a mistake
in selecting the 8 candidates with the highes votes for purposes of making the certificate of
canvass because there was no error in the tabulation of votes as CE Form No. 26-A (which is the
statement of votes) shows that Erlinda V. Irigo got 31,129 votes and Pedro T. Pena only 30,679
votes. The mistake could only be made through utter carelessness, if not made deliberately. This
situation only illustrates that the questioned provision cannot be construed in the manner as
argued by petitioners for it would defeat the purpose and spirit for which the law was enacted,
i.e., to achieve the holding of free, orderly, honest, peaceful and credible elections.In Lino Luna
vs. Rodriguez,[8] the court observed:
"Experience and observations taught legislature and courts that, at the time of a hotly contested
election, the partisan spirit of ingenious and unscrupulous politicians will lead them beyond the
limits of honesty and decency and by the use of bribery, fraud and intimidation, despoil the
purity of the ballot and defeat the will of the people at the polls. Such experience has led the
legislature to adopt very stringent rules for the purpose of protecting the voter in the manner of
preparing and casting his ballot to guard the purity of elections." "The infinite ingenuity of violent
spirit in evading the rules and regulations of elections and the use of bribery, fraud and
intimidation has made necessary the establishment of elaborate and rigid rules for the conduct
of elections. The very elaborateness of these rules has resulted in their frequent violation and
the reports of the courts are replete with cases in which the result of an election has been
attacked on the ground that some provisions of the law have not been complied
with. Presumably, all the provisions of the election laws have a purpose and should be observed.
On the second assigned error, petitioners contend that assuming ex gratia argumenti that the
protest made by candidate Irigo's daughter Maribeth Irigo Batitang was the verbal protest
contemplated under Sec. 245 of the Omnibus Election Code, such fact could not be deemed to
be a protest made to the Board of Canvassers itself; and that the failure of the member of the
verification/tabulation committee concerned to apprise the Board prior to the proclamation
cannot be taken against the members of the Board.
We find the above contentions untenable. As aptly stated by Director Borra in his
aforementioned resolution:
"The timely verbal protest of the daughter-watcher of Mrs. Erlinda Irigo did not trigger on the
part of the PBC (Provincial Board of Canvassers) the responsible action of verifying the basis of
the protest. The 3 Members of the PBC could not attribute to the Committee on Tabulation the
blame for their errors as the PBC members themselves were the ones who certified under oath
the said Certificate of Proclamation and the Tabulation Committee members were totally under
their direct supervision and control."
Petitioners also raised the issue that it was only after the proclamation had been made that the
Board was informed of the fact that an error may have been committed in the tabulation; and
that however, having discharged its function of making the canvass and proclamation of the
winning candidates, the Board of Canvassers became functus oficio and could no longer correct
the erroneous proclamation.
As to this issue, suffice it to state that whether or not "the Board of Canvassers became functus
oficio" after it proclaimed the winning candidates, is beside the point. What matters is whether
or not petitioners committed an election offense. Besides, as stated earlier, Mrs. Irigo's watcher
made a timely verbal protest to the Tabulation Committee.
Petitioners further contend that Maribeth Irigo Batitang, the daughter of candidate Irigo and her
designated representative during the canvassing proceedings, was never presented as a witness;
that Erlinda Irigo, upon whose testimony the trial court relied heavily to establish the fact of
28
protest, was not present during the canvassing proceedings; that Mrs. Irigo's testimony on this
point is inadmissible as being hearsay and should not have been considered by the trial court;
that no other evidence having been adduced with respect to the protest allegedly made by Irigo's
representative, such fact should be deemed as not having been established; and that there was
thus no basis, therefore, for the respondent Court of Appeals to hold that the Board was deemed
to have been constructively informed of the verbal protest and that the members thereof were
liable for having failed to act on the basis thereof.
We are not persuaded. Even if we tentatively grant that Mrs. Irigo's testimony is hearsay
evidence, there is still ample evidence which proves that the Board was deemed to have been
informed of the verbal protest and that the members thereof were liable for having failed to act
on the basis thereof.
The resolution[9] of Director Borra quoted the questions and answers during the preliminary
investigation. The import of those deliberations show that petitioner Agujetas, as Chairman of
the Provincial Board of Canvassers, admitted that the tabulation committee was under the
supervision of the Board.[10] As regards petitioner Bijis, Vice Chairman of the Board, he admitted
that he signed the minutes of the Board to the effect that on January 22, 1988 in the morning
after the proclamation, the Board's business was "reconciliation of entries in the tally
sheet,"[11]thus showing that the proclamation in question had been made even before the votes
were reconciled on the tally sheets. And as to accused Miano, Secretary of the Board, he
admitted having stated in the minutes[12] that an oral complaint was made by Mrs. Batitang,
representative of Erlinda Irigo, but that the complaint was lodged with the tabulation committee
and not with the Board; and that he did not care to examine the partial results for each provincial
candidate, including Erlinda Irigo and Pedro Pena.[13]
An admission, verbal or written, made by a party in the course of the proceedings in the same
case, does not require proof.[14]
On the last error assigned by petitioners, they maintain that the present case was filed by
Francisco Rabat, the losing gubernatorial candidate in the Province of Davao Oriental; that Mrs.
Irigo never joined the Complaint as a party-plaintiff at any stage of the proceedings; that she was
merely presented as a witness; and thus, for the court to have awarded damages to Mrs. Irigo
was a patent error. We find petitioners' allegations untenable. Except where the law specifically
provides the contrary, a complaint that a public crime has been committed may be laid by any
competent person.[15] The Omnibus Election Code does not specifically provide that a particular
person must file the complaint and hence, the complaint filed by Francisco Rabat is valid.
The counsel for the people points out and we agree-
"Even an offended party not mentioned in the Information may claim the civil liability during the
trial if he has not waived it.[16]
"In the case at bar, Erlinda Irigo clearly, was the party offended or the person whose rights were
trampled upon, by the indecent haste with which petitioners proclaimed Teodoro Pena (sic) as
the winner of the 8th seat of the Sangguniang Panlalawigan.
"The persistence of Erlinda Irigo's lawyers to participate, as in fact they participated, in the
proceedings a quo as private prosecutors over the vehement objections of petitioners' counsel
clearly indicates that Erlinda Irigo intended to claim damages from petitioners."[17]
In U.S. v. Heery,[18] this court held that "If the injured party has not expressly waived the civil
liability of the accused nor reserved his right to file a separate civil action, it is error for the court
to refuse a request of the injured party during the course of the criminal prosecution to submit
evidence of his damages. Thus, the arguments of the petitioners notwithstanding, respondent
court did not err in awarding damages to Mrs. Irigo.
After the People's counsel has filed respondents' comment, petitioners filed their Reply wherein
they raised for the first time (not even in their Petition), the issue that the crime under which
petitioners were convicted no longer exists because Republic Act Nos. 6646 (the Electoral
Reforms Law of 1987) and 7166 (Electoral Reforms Law of 1991) were subsequently approved on
January 5, 1988 and November 26, 1991, respectively; that these two laws amended the
Omnibus Election Code by deleting certain provisions thereof or adding new ones; and that
among those amended was Section 231, which was modified by Section 28 of RA No. 7166 by
removing the specific manner by which the proclamation of winning candidates by the Board of
Canvassers should be made and thereby, in effect, repealing the second paragraph of Sec. 231 of
the old Omnibus Election Code under which Petitioners had been convicted.
Points of law, theories, issues and arguments not adequately brought to the attention of the trial
court need not be, and ordinarily will not be considered by a reviewing court as they cannot be
raised for the first time on appeal.[19] However, since RA 7166 was enacted after the trial court
had rendered its decision, and while the case was already pending appeal in the Court of
Appeals, and in order to settle the issue once and for all, this court will make a clear-cut ruling on
the issue.
Sec. 231 of the Omnibus Election Code (Batas Pambansa Blg. 881) was not expressly repealed by
R.A. 7166 because said Sec. 231 is not among the provisions repealed by Sec. 39 of R.A. 7166
which we quote:
"Sec. 39. Amending and Repealing Clause. - Sections 107, 108 and 245 of the Omnibus Election
Code are hereby repealed. Likewise, the inclusion in Section 262 of the Omnibus Election Code of
the violations of Sections 105, 106, 107, 108, 109, 110, 111 and 112 as among election offenses is
also hereby repealed. This repeal shall have retroactive effect.
"Batas Pambansa Blg. 881, Republic Act No. 6646, Executive Order Nos. 144 and 157 and all other
laws, orders, decrees, rules and regulations or other issuances, or any part thereof, inconsistent
with the provisions of this Act are hereby amended or repealed accordingly."
29
The statement "All laws or parts thereof which are inconsistent with this Act are hereby repealed
or modified accordingly," certainly is not an express repealing clause because it fails to identify or
designate the act or acts that are intended to be repealed. If repeal of particular or specific law
or laws is intended, the proper step is to so express it. [20]
Neither is there an implied repeal of Sec. 231 by the subsequent enactment of RA 6646 and RA
7166.
While Sec. 28 of RA 7166, like Sec. 231 of the Omnibus Election Code (BP 881) pertains to the
Canvassing by the Boards of Canvassers, this fact of itself is not sufficient to cause an implied
repeal of the prior act.[21] The provisions of the subject laws are quoted below for comparison:
"Sec. 231. - Canvass by the board. - The board of canvassers shall meet not later than six o'clock
in the afternoon of election day at the place designated by the Commission to receive the
election returns and to immediately canvass those that may have already been received. It shall
meet continuously from day to day until the canvass is completed, and may adjourn but only for
the purpose of awaiting the other election returns from other polling places within its
jurisdiction. Each time the board adjourns, it shall make a total of all the votes canvassed so far
for each candidate for each office, furnishing the Commission in Manila by the fastest means of
communication a certified copy thereof, and making available the data contained therein to the
mass media and other interested parties. As soon as the other election returns are delivered, the
board shall immediately resume canvassing until all the returns have been canvassed.
"The respective board of canvassers shall prepare a certificate of canvass duly signed and affixed
with the imprint of the thumb of the right hand of each member, supported by a statement of the
votes and received by each candidate in each polling place and, on the basis thereof, shall
proclaim as elected the candidates who obtained the highest number of votes cast in the
province, city municipality or barangay. Failure to comply with this requirement shall constitute
an election offense.
"Subject to reasonable exceptions, the board of canvassers must complete their canvass within
thirty-six hours in municipalities, forty-eight hours in cities and seventy-two hours in provinces.
Violation hereof shall be an election offense punishable under Section 264 hereof.
"With respect to the election for President and Vice-President, the provincial and city boards of
canvassers shall prepare in quintuplicate a certificate of canvass supported by a statement of
votes received by each candidate in each polling place and transmit the first copy thereof to the
Speaker of the Batasang Pambansa. The second copy shall be transmitted to the Commission, the
third copy shall be kept by the provincial election supervisor or city election registrar; the fourth
and the fifth copies to each of the two accredited political parties. (Sec. 169, 1978 EC)."[22]
"Sec. 28. Canvassing by Provincial, City, District and Municipal Boards of Canvassers. - (a) The city
or municipal board of canvassers shall canvass the election returns for President, Vice-President,
Senators and members of the House of Representatives and/or elective provincial and city or
municipal officials. Upon completion of the canvass, it shall prepare the certificate of canvass for
President, Vice-President, Senators and Members of the House of Representatives and elective
provincial officials and thereafter, proclaim the elected city or municipal officials, as the case may
be.
"(b) The city board of canvassers of cities comprising one or more legislative districts shall
canvass the election returns for President, Vice-President, Senators, Members of the House of
Representatives and elective city officials. Upon completion of the canvass, the board shall
prepare the certificate of canvass for President, Vice-President, and Senators and thereafter,
proclaim the elected Members of House of Representatives and city officials.
"(c) (1) In the Metro Manila Area, each municipality comprising a legislative district shall have a
district board of canvassers which shall canvass the election returns for President, Vice-President,
Senators, Members of the House of representatives and elective municipal officials. Upon
completion of the canvass, it shall prepare the certificate of canvass for President, Vice-
President, and Senators and thereafter, proclaim the elected Members of the House of
Representatives and municipal officials.
"(2) Each component municipality in a legislative district in the Metro Manila Area shall have a
municipal hoard of canvassers which shall canvass the election returns for President, Vice-
President, Senators, xxx
"(3) The district board of canvassers of each legislative district comprising two (2) municipalities
in the Metro Manila Area shall canvass the certificates of canvass for President, Vice-President,
xxx
"(d) The provincial board of canvassers shall canvass the certificates of canvass for President,
Vice-President, Senators, Members of the House of Representatives and elective provincial
officials as well as plebiscite results, if any plebiscite is conducted simultaneously with the same
election, as submitted by the board of canvassers of municipalities and component cities. Upon
completion of the canvass, it shall prepare the certificate of canvass for President, Vice-President
and Senators and thereafter, proclaim the elected Members of the House of Representatives and
provincial officials as well as the plebiscite results, if any."[23]
While the two provisions differ in terms, neither is this fact sufficient to create repugnance. In
order to effect a repeal by implication, the later statute must be so irreconcilably inconsistent
and repugnant with the existing law that they cannot be made to reconcile and stand
together. The clearest case possible must be made before the inference of implied repeal may be
drawn, for inconsistency is never presumed.[24] "It is necessary, says the court in a case,[25] before
such repeal is deemed to exist that it be shown that the statutes or statutory provisions deal with
the same subject matter and that the latter be inconsistent with the former. There must be a
showing of repugnance clear and convincing in character. The language used in the later statute
must be such as to render it irreconcilable with what had been formerly enacted. An
inconsistency that falls short of that standard does not suffice." [26] For it is a well-settled rule of
statutory construction that repeals of statutes by implication are not favored.[27] The
30
presumption is against inconsistency or repugnance and, accordingly, against implied
repeal.[28] For the legislature is presumed to know the existing laws on the subject and not to
have enacted inconsistent or conflicting statutes.[29]
In the case at bar, the needed manifest indication of legislative purpose to repeal is not
present. Neither is there any inconsistency between the two subject provisions. The explanation
of a legal scholar[30] on the subject, particularly on Section 1 of BP 881 is enlightening:
"The Omnibus Election Code of the Philippines is Batas Pambansa Blg. 881, which was enacted
into law on December 3, 1985. It codified all previous election laws. It has undergone some
amendments, basically by the 1987 Constitution, Republic Act No. 6646, otherwise known as
"The Electoral Reform Law of 1987," and Republic Act No. 7166, providing for synchronized
national and local elections on May 11, 1992.
"The Omnibus Election Code is the basic law on elections. While legislations have been enacted
every time an election for elective officials is scheduled, the Omnibus Election Code remains the
fundamental law on the subject and such pieces of legislations are designed to improve the law
and to achieve the holding of free, orderly, honest, peaceful and credible elections."
Consistently, while Article 22 of the Revised Penal Code provides that penal laws shall have
retroactive effect insofar as they favor the person guilty of a felony xxx, this provision cannot be
applied to benefit the petitioners because Section 231 of BP 881[31] was not repealed by
subsequent legislations, contrary to petitioners contention that Section 231 was so repealed by
R.A. Nos. 6646 and 7166.
ACCORDINGLY, the petition is DENIED for lack of merit and the assailed decision of the
respondent Court of Appeals is hereby AFFIRMED in toto.
SO ORDERED
14.) DOMALANTA VS COMELEC
Challenged in this petition for certiorari and prohibition is COMELEC En Banc Resolution No. 96-
1616 dated May 28, 1996[1] which
RESOLVED:
1. to file an Information against PES Vitaliano Fabros, Provincial Prosecutor Pacifico Paas, and
Division Schools Superintendent Olympia Marquez, Chairman, Vice-Chairman, and Member-
Secretary, respectively of the provincial Board of Canvassers, Isabela together with its staff
members, namely : Dr. Teresita Domalanta, Agripina Francisco, Dante Limon, Edwardo Tamang
and George Noriega, before the Regional Trial Court of Isabela for violation of Section 27 (b) of
Republic Act No. 6646, the prosecution of which shall be handled by the Chief State Prosecutor
Zenon de Guia, with the duty to submit periodic report[s] thereon after every hearing of the
case; and
2. to file an administrative complaint against said respondents for grave misconduct, gross
Canvass Provincial Board of Canvassers of I
dishonesty, and conduct unbecoming public officials to the prejudice of the best interest of the
public service;
Santiago City
3. to preventively suspend the respondents for a period of ninety (90) days reckoned from
receipt of this resolution.
Enrile 15,454 16,454
From the record, it appears that on August 4, 1995, then senatorial candidate Aquilino Pimentel,
Jr. filed a complaint-affidavit[2] charging Provincial Election Supervisor (PES) Vitaliano Fabros,
Provincial Prosecutor Pacifico Paas and Division Superintendent of Schools Dr. Olympia Marquez, Angadanan
Chairman, Vice-Chairman and Member-Secretary, respectively, of the Provincial Board of
Canvassers of Isabela with alleged violation of Section 27 (b) of Republic Act No. 6646, otherwise Enrile 5,996 7,996
known as the Guingona Electoral Reform Law of 1987.

The case, docketed as E.O. Case No. 95-408 entitled "Aquilino Pimentel, Jr. v. PBC of Isabela" for Mitra 3,888 4,888
alleged violation of the Omnibus Election Code was thereafter referred to the Law Department of
the Commission of Elections (COMELEC) for evaluation and report. The COMELECs Law
Department summarized the facts of the controversy in its evaluation report dated May 20, Cauayan
1996,[3] thus:
Enrile 13,710 19,710
The instant case stemmed from the alleged irregularity committed by the Provincial Board of
Canvassers of Isabela in crediting unauthorized additional votes, thus: (a) Twenty seven thousand
seven hundred fifty five (27,755) to Juan Ponce Enrile, (b) Seven thousand (7,000) to Ramon Honasan 11,205 21,205
Mitra, and (c) Ten thousand (10,000) to Gregorio Honasan.

After the submission of the counter-affidavits of the respondents, Pimentel filed on September 1, Cordon
1995 an amended complaint impleading the members of the staff of the Board namely: Dr.
Teresita Domalanta, Agripina Francisco, Dante Limon, Eduardo Tamang and George Noriega, as
additional respondents. Enrile 6,794 9,794

Aquilino Pimentel alleged that the unauthorized additional number of votes were included in the
Delfin Albano
total votes for senatorial candidates Enrile, Mitra and Honasan in the Provincial Certificate of
Canvass duly signed and thumbmarked by the members of the PBC of Isabela and which same
was submitted to the Comelec as National Board of Canvassers which was included in the Enrile 3,972 4,972
canvass on which the proclamation was based. In order to prove his charge, complainant
submitted in evidence the Certificate of Canvass supported by Statement of Votes per precinct of
Santiago City, Municipalities of Angadanan, Cauayan, Cordon, Delfin Albano, Echague, San Echague
Mariano, San Pablo, Ilagan and San Mateo. A comparison of the votes indicated in the Statement
of Votes by city/municipality and that of the municipal/city Certificate of Canvass was submitted
Enrile 10,552 15,552
by the complainant which is hereunder reproduced:

Municipality Votes as indicated in the Votes as indicated in the Statement ofSan Mariano
Votes Discrepancy
Municipality/City Certificate of by Municipality/City prepared by the

31

Enrile 5,683 8,253
San Pablo
Enrile 2,418 3,438
Ilagan
Mitra 14,457 20,457
San Mateo
Enrile 9,424 15,589
In their defense, Provincial Election Supervisor Vitaliano Fabros, Provincial Prosecutor Pacifico
Paas and Division Superintendent of Schools Dr. Olympia Marquez, Chairman, Vice-Chairman and
Member-Secretary, respectively, of the Provincial Board of Canvassers of Isabela were in unison
in vehemently denying the charges imputed against them and declared that they faithfully
performed their poll duties assigned to them.
PES Vitaliano Fabros, in his counter-affidavit, asserted that it could not have been possible not to
read the actual figures reflected in the municipality/city Certificate of Canvass considering the
presence of counsels and watchers of candidates and political parties and if ever there are
discrepancies between the city/municipal Certificate of Canvass and that of the Provincial
Certificate of Canvass the same may be attributable to human fatigue.
Respondent Pacifico Paas declared that he assumed the opening of the envelopes containing the
election returns by municipality and broke the corresponding paper seals and handed the same
to the Chairman who in turn assumed the reading of votes through a microphone with the
tabulators and recorders reflecting the figures in the Statement of Votes and further declared
that he had no direct view over the votes read by Chairman Fabros nor had he interfered save for
one or two election returns in the reading. He even vigorously denied any privy (sic) to the
discrepancy of the figures indicated in the "Statement of Votes by Municipality" and "Provincial
Certificate of Canvass" because he honestly believed that these are the true and faithful
reproduction of the figures indicated in the Provincial Board of Canvassers copy of the election
returns provided them which were used in the canvass.
Respondent Dr. Olympia Marquez stated that it was Chairman Fabros who read the votes
obtained by the candidates through an amplifier sound system and correspondingly the
32
recorders tabulated the figures as read into the Statement of Votes by municipality; that she did
+2,570
not so much interfere in the opening of the envelopes and the election returns, nor in the
reading of the votes in the duration of the canvassing and that she conveniently sat side by side
with the recorders and periodically see to it that votes correspondingly read and announced
were faithfully reflected in the Statement of Votes.
Respondents+1,020
Dr. Teresita Domalanta and Agripina Francisco, in their joint counter-affidavit,
categorically denied the charges, and declared that they faithfully recorded the votes obtained
by the candidates as read and announced by the Chairman of the Provincial Board of Canvassers
and during the recording Dr. Olympia Marquez periodically checked the correctness of the
entries in the Tally Sheet for the Statement of Votes; that they recorded the votes obtained by
local candidates
+6,000 in some municipalities including senatorial candidates whose surname begins
with letter "T" and that they did not participate in the preparation of the Provincial Certificate of
Canvass.
Respondents Dante Limon and Eduardo Tamang, in their joint-affidavit, vehemently denied the
charges. They claimed that their assigned duty is only to record the names of candidates and
+6,165
their corresponding number of votes obtained as announced by PBC Chairman, Atty. Vitaliano
Fabros because they have no access to the votes written in the Municipal Certificate of Canvass.
Respondent George Noriega, in his counter-affidavit likewise denied the charges and averred
that he had no direct knowledge in the preparation of the alleged falsified Provincial Certificate
of Canvass, and as Tabulator, he only added what was recorded in the Statement of Votes
prepared by other persons and denied any participation in the alleged falsification of the
Statement of Votes.
On the basis of the foregoing factual findings, the COMELECs Law Department recommended
that:
1. an information be filed aganst Provincial Election Supervisor Vitaliano Fabros, Provincial
Prosecutor Pacifico Paas, and Division Superintendent of Schools Dr. Olympia Marquez,
Chairman, Vice- Chairman and Member-Secretary, respectively of the Board of Canvassers of
Isabela before the Regional Trial Court Isabela for violation of Section 27 (b) of Republic Act No.
6646 , the prosecution of which shall be handled by Regional Election Director Samuel Barangan
of Region II, with the duty to submit periodic progress report[s] after every hearing of the case;
2. an administrative complaint against said respondent for grave misconduct, gross dishonesty,
and conduct unbecoming public officials to the prejudice of the best interest of the service; and
3. the cases against Dr. Teresita Domalanta, Agripina Francisco, Dante Limon, Edwardo Tamang
and George Noriega be dismissed for insufficiency of evidence to establish a probable cause.
In justifying its stand, the COMELEC Law Department reasoned as follows:
Respondents stand charged with alleged violation of Section 27 (b) of Republic Act No. 6646
which provides:
Section 27. Election offenses. In addition to the prohibited acts and election offenses enumerated
in Section 261 and 262 of Batas Pambansa Blg. 881, as amended, the following shall be guilty of
an election offense.
x x x...........................x x x...........................x x x
(b)....Any member of the board of election inspectors or board of canvassers who tampers with,
increases or decreases votes received by a candidate in any election or any member of the board
who refuses, after proper verification and hearing, to credit the correct votes or deduct such
tampered votes. (Underscoring ours)
There is no question there was indeed an increase in the number of votes obtained by senatorial
candidates Enrile, Mitra and Honasan which the complainant called it [a] glaring discrepancy. An
examination of the Municipal Certificate of Canvass with its Statement of votes per precinct in
relation to the Provincial Certificate of Canvass as supported by the Statement of Votes by
City/Municipality would show that the votes of the aforementioned candidates were illegally
increased in Santiago City and in the nine (9) municipalities of Isabela.
The crucial and pivotal issue for determination in the case at bar is whether or not the
respondents alleged act of increasing the number of votes garnered by senatorial candidates
Enrile, Mitra and Honasan constitutes a violation of Section 27 (b) of Republic Act No. 7168.
By a general overview, in order to have judicious evaluation of the case, it is imperatively
necessary to define MISTAKE, NEGLIGENCE and GROSS NEGLIGENCE which may aid in arriving
[at] an intelligent findings (sic).
Mistakes, concededly committed by public officers are not actionable without any clear showing
that they were motivated by malice or gross negligence amounting to bad faith.[4]
Negligence is the omission to do something which a reasonable man guided by those
consideration[s] which ordinarily regulate the conduct of human affairs would do, or the doing of
something which a prudent and reasonable man would not do [5] or the failure to observe for the
protection of the interest of another person, that degree of precaution and vigilance which the
circumstances justly demand, whereby such other person suffers injury.[6]
Gross negligence has been defined as negligence characterized by the want of even slight care,
acting or omitting to act in a situation where there is [a] duty to act, not inadvertently but
willfully and intentionally with a conscious indifference to consequences insofar as other persons
may be affected.[7]
33
It cannot be disputed that the Certificate of Canvass for senatorial candidates and its supporting
statements of votes by municipality and city, are sensitive election documents where the entries
therein shall be highly scrutinized.
From the foregoing guidepost, we find the contention of respondents members of the Provincial
Board of Canvassers that the erroneous crediting of additional votes to senatorial candidates
Enrile, Mitra and Honasan was an honest mistake due to human fatigue, patently not tenable.
This is so because there appears to be a pattern as shown in the comparison between the
Statement of Votes by Precinct of each of the nine (9) municipalities and one (1) city and the
Statement of Votes by Municipality prepared by the Provincial Board of Canvassers, thus,
in Santiago City senatorial candidate, Enrile obtained fifteen thousand four hundred fifty four
(15,454) as per City Certificate of Canvass while in the Statement of Votes by City prepared by
the Provincial Board of Canvassers was sixteen thousand four hundred fifty four (16,454); in the
Municipality of Angadanan, senatorial candidates Enrile and Mitra were credited with five
thousand nine hundred ninety six (5,996) votes and three thousand eight hundred eight (3,888),
respectively, as indicated in Municipal Certificate of Canvass but in the Statement of Votes by
Municipality of Cauayan, Enrile and Honasan were credited thirteen thousand seven hundred ten
(13,710) and eleven thousand two hundred five (11,205), respectively, while the Statement of
Votes by Municipality would show that Enrile got thirteen thousand seven hundred ten (19,710)
and Honasan, twenty one thousand two hundred five (21,205); in the Municipality of Cordon,
Enrile obtained six thousand seven hundred ninety four (6,794) but in the Statement of Votes by
Municipality the number of votes for Enrile was nine thousand seven hundred ninety four
(9,794); in the municipality of Delfin Albano, per Municipal Certificate of Canvass Enrile garnered
three thousand nine hundred seventy two (3,972) votes while in the Statement of Votes by
Municipality Enrile was credited with four thousand nine hundred seventy two (4,972); in the
municipality of Echague, Enrile obtained ten thousand five hundred fifty two (10,552) votes as
reflected in the Votes by Municipality he was credited with fifteen thousand five hundred fifty
two (15,552) votes; and in the Municipality of Ilagan, Mitra was credited with fourteen thousand
four hundred fifty seven (14,457) votes but in the Statement of Votes by Municipality, Mitras
vote was twenty thousand four hundred fifty seven (20,457).
As can be gleaned from the figures shown, save in the municipalities of San Mariano, San Pablo
and San Mateo, the last three digits of the number of votes in the Municipal Certificate of
Canvass of the other municipalities were retained in the padded votes which will give rise to the
presumption that the act was done intentionally and deliberately.
The position proferred by the respondent board members that they cannot be held liable even if
the votes reflected in the assailed certificate of canvass do not tally with the figures on the other
copies of the Municipal Certificate of Canvass because the copies in the possession of the
complainant and any other copies thereof were never used in the provincial canvass, is patently
without merit. Neither is the assertion by respondent board members that the offense imputed
against them is not mala prohibita but mala in se where criminal intent is material by invoking
the ruling of the Court of Appeals in the case of People vs. Sunico, et. al., a valid argument at all.
Based on the facts obtaining in this case, there appears a malice on the part of the members of 3. Findings Of Conspiracy Not Supported By any Evidence.
the board to increase the votes of the three (3) senatorial candidates taking into account the
pattern of the distribution of the increase of votes as clearly illustrated above. This illegal act will 4.....The Continuous Media Blitzkrieg On "Dagdag-Bawas" And The Attack On The Inside
jibe with the position of the respondents that violation of Section 27 (b) of Rep. Act No. 6646, Workings Of The Comelec Terrified Or Terrorized COMELEC Into Including Petitioners In The
is mala in se. Besides, what we are proving here is the existence of a prima facie case only, and Charge.
not a proof beyond reasonable doubt.
5.....Participation Of Petitioners Limited To Canvass Of Local Officials And Two Senators Starting
IT MUST BE POINTED OUT CLEARLY THAT THE ALLEGED FALSIFIED PROVINCIAL CERTIFICATE OF With The Letter "T" And Does Not Cover Scope Of Instant Complaint Of Atty. Pimentel.
CANVASS OF ISABELA WAS SEASONABLY RETABULATED OR CORRECTED BY THE COMELEC EN
6. The Three (3) Important Documents Upon Which Complaint Was Based Does Not Carry The
BANC SITTING AS THE NATIONAL BOARD OF CANVASSERS WHICH ABSOLUTELY BELIE THE
Signatures Of Movants.
GRATUITOUS ALLEGATION OF PIMENTEL THAT THE INCREASE OF VOTES WERE INCLUDED IN THE
CANVASS AND MADE AS ONE OF THE BASIS IN THE PROCLAMATION OF THE WINNING
7. Respondent Pimentel, When Informed About The Innocence Of Movants That They Did Not
SENATORIAL CANDIDATES [Capitalization ours]
Tally Votes For Enrile, Honasan and Mitra Commented "that is a good point" An Admission
Rendering The Case Against Petitioners Dismissible.
But notwithstanding that the illegal increase of the votes of Enrile, Mitra and Honasan were
retabulated or corrected, the members of the Provincial Board of Canvassers of Isabela are
8. Overzealousness In The Prosecution Of Election Offenses Must Be Tempered With The
criminally liable to the alleged act committed.
Yardstick That The Innocent Must Not Be Victims Of Injustice.
More importantly, A CAREFUL READING OF THE COUNTER-AFFIDAVITS OF OTHER RESPONDENTS
9.....A Serious Review Is an Imperative Necessity To Protect Movants From The Onslaught Of A
ATTY. PACIFICO PAAS, DR. OLYMPIA MARQUEZ INCLUDING THE MEMBERS OF THE STAFF WOULD
Public Trial That Carries The Stigma Of Perpetual Embarassment.
POINT TO THE CHAIRMAN OF THE BOARD, ATTY. FABROS AS THE SOURCE OF THE DATA
RECORDED AND TABULATED. SUCH BEING THE CASE, ABSENT A CLEAR AND CONVINCING PROOF 10.....Petitioners Are Awardees Of COMELEC Hope I And II And Committing An Anomaly
OF CONSPIRACY OR COLLUSION BETWEEN THE RESPONDENTS MEMBERS OF THE PROVINCIAL Repugnant To What They Have Taught Is Beyond Their Wildest Dreams.
BOARD AND ITS RESPONDENT STAFFS, THE LATTER CANNOT BE FAULTED ON THE ALLEGED
WRONG DOING. The Chairman and the Member Secretary may be indicted for the offense 11.....Petitioner Dr. Domalanta Is A Career Official Of The DECS And Has An Irreproachable
charged as earlier indicated, and the fact that they certified that the entries reflected in the Character To Protect And Would Not Do An Act That Will Forever Destroy Her Good Reputation.
Provincial Certificate of Canvass and Statement of Votes By Municipality were true and correct.
However, the exoneration of the tabulators and recorders was further strengthened by the 12.....The Same is True With Petitioner Dr. Francsico Who Has Just Retired From Public Service As
corroborating statement of Member-Secretary Dr. Olympia Marquez when she stated, in her Assistant Division Superintendent.
counter-affidavit, that she sat beside the tabulators and recorders in order to see to it that the
The primordial issue to be resolved is whether or not the COMELEC gravely abused its discretion
correct figures are reflected in the Statement of Votes By Municipality.
in directing the filing of criminal and administrative complaints against the petitioners.
Based on the foregoing findings, the Law Department recommended that the cases against both
In sum, petitioners insist on their innocence in any wrongdoing in the preparation of the
petitioners be dismissed. However, the COMELEC en banc still issued the assailed Resolution
Statement of Votes per Municipality, arguing that there is no evidence on record to show a hint
which petitioners challenge on the grounds that:
of probable cause against them for the commission of an election offense under Section 27 of
1.....Minute Resolution No. 96-1616 Finding Conspiracy Among The Members Of The Provincial R.A. No. 6646 with regard to the padding of votes during the May 8, 1995 elections.
Board Of Canvassers and the Herein Petitioners Has No Factual Basis and Runs Counter To The
The argument is tenuous.
Study and Report, Annex "C", Upon Which The Questioned Minute Resolution Was Based.
It needs be stressed that for the May 8, 1995 elections, petitioners were part of the support or
Hence, Its Issuance Was Attended By Grave Abuse Of Discretion Amounting To Lack Or Excess Of
technical staff of the Provincial Board of Canvassers (PBC) of the Province of Isabela that was
Jurisdiction.
tasked with the canvassing of the Municipal/City Certificates of Canvass (CoC), the preparation of
2.....Findings of the Law Department Refers to Members Of The PBOC Only And Does Not Include the Provincial Certificates of Canvass and the supporting Statement of Votes (SoV) per
Petitioners. Municipality/City which entries in said documents were certified to as correct by the PBC. It is
34
upon a comparison between the Municipal/City CoC submitted to the PBC and the SoV per
Echague
Municipality/City as prepared by the members of the PBC and their support staff, including
herein petitioners, that one would readily see the neatly padded vote totals for the three (3)
senatorial candidates, namely, Enrile, Honasan and Mitra, viz: Enrile 10,552 15,552

Municipality/ Votes appearing in Votes canvassed by COMELEC based Discrepancy

San Mariano
City Candidate Municipal/City on PBCs
Certificates
Enrile 5,683 8,253

Santiago City
San Pablo

Enrile 15,454 16,454 1,000

Enrile 2,418 3,438

Angadanan
Ilagan

Enrile 5,996 7,996 2,000

Mitra 14,457 20,457

Mitra 3,888 4,888 1,000

San Mateo

Cauayan
Enrile 9,424 15,589

Enrile 13,710 19,710 6,000

TOTAL 103,553 148,308

Honasan 11,205 21,205 10,000

Candidate Unauthorized Additional Votes

Cordon
ENRILE 27,755

Enrile 6,794 9,794 3,000

HONASAN 10,000

Delfin Albano
MITRA 7,000

Enrile 3,972 4,972 1,000

It can be clearly seen from the list above that the discrepancies are too substantial and rounded
off to be categorized as a mere computation error or a result of fatigue. There is a limit to what
can be construed as an honest mistake or oversight in the performance of official duty. Suffice it

35
to state that the magnitude of the error as reflected in the discrepancies itemized above renders
unacceptable the defense of computer error or honest mistake.
In the separate counter-affidavits[8] submitted by members of the PBC of Isabela, all three of
them asserted their lack of knowledge of any irregularity committed despite the glaring
discrepancies detailed above. However, paragraph 2 of the Joint Counter-Affidavit[9] of petitioner
Domalanta and Dr. Olympia G. Marquez, acting as Member-Secretary of the PBC, avers that in
recording the vote totals of the senatorial candidates appearing in the Municipal CoCs in the SoV
per Municipality/City, the Board was assisted by the petitioners, two (2) clerks also from the
DECS, Messrs. Dante Limon and Edward Tamang as well as Mr. George Noriega, a representative
of the Provincial Accountants Office. Implicit in the averment of paragraph 2 of said Joint
Counter-Affidavit is the insinuation that the anomalies or the tampering of the results of the
senatorial canvass in Isabela could only have been done by their staff.
It was indeed highly unlikely that the padded vote totals were entered in the SoV per
Municipality/City without the knowledge of petitioners, if they were faithfully and regularly
performing their assigned tasks. A reasonably prudent man on the other hand would readily
come to the conclusion that there exists a probable cause to believe that the petitioners are
culpable together with the other members of the support staff as well as the PBC members in the
padding of the vote totals of the said senatorial candidates. It can not be denied that the
members of the PBC and their support staff, including herein petitioners, were the only ones in
control and in possession of said documents during its preparation. It need not be
overemphasized, given this fact, that the padding of the vote totals could only have been done
by all of them acting in concert with one another.
It bears stressing in this regard that all that is required in the preliminary investigation is the
determination of probable cause so as to justify the holding of petitioners for trial. Probable
cause is defined -
as the existence of such facts and circumstances as would excite the belief, in a reasonable mind,
acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of
the crime for which he was prosecuted. [10] This definition is still relevant today as we continue to
cite it in recent cases.[11] xxx Pilapil v. Sandiganbayan[12] sets the standard for determining
probable cause. xxx There we said:
Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded,
such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and
prudence to believe or entertain an honest or strong suspicion, that a thing is so. The term does
not mean "actual or positive cause" nor does it import absolute certainty. It is merely based on
opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into
whether there is sufficient evidence to procure a conviction. It is enough that it is believed that
the act or omission complained of constitutes the offense charged. Precisely, there is a trial for
the reception of evidence of the prosecution in support of the charge.
36
Whether an act was done causing undue injury to the government and whether the same was
done with manifest partiality or evident bad faith can only be made out by proper and sufficient
testimony. Necessarily, a conclusion can be arrived at when the case has already proceeded on
sufficient proof.[13]
Probable cause to warrant arrest is not an opaque concept in our jurisdiction. Continuing
accretions of case law reiterate that they are facts and circumstances which would lead
a reasonably discreet and prudent man to believe that an offense has been committed by the
person sought to be arrested.[14] Other jurisdictions utilize the term man of reasonable
caution[15] or the term ordinarily prudent and cautious man.[16] The terms are legally synonymous
and their reference is not to a person with training in the law such as a prosecutor or a judge but
to the average man on the street.[17] It ought to be emphasized that in determining probable
cause, the average man weighs facts and circumstances without resorting to the calibration of
our technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of
common sense of which all reasonable men have an abundance.
xxx...........................xxx...........................xxx
A finding of probable cause needs only to rest on evidence showing that more likely than not a
crime has been committed and was committed by the suspects. Probable cause need not be
based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond
reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well
put in Brinegar v. United States,[18] while probable cause requires more than "bare suspicion", it
requires "less than evidence which would justify xxx conviction." A finding of probable cause is
not a pronouncement of guilt.[19]
The peculiar factual circumstances prevailing in this case hardly paints a picture of manifest
human error or fatigue in the tabulation of the votes of the senatorial candidates in Isabela. It, in
fact, discloses a pernicious scheme which would not have been successfully perpetrated without
the indispensable cooperation of all members of the PBC and their support staff which included
herein petitioners. The latters protestations in the counter-affidavits that they only tabulated the
vote totals of senatorial candidates Tillah and Tolentino are at best convenient and self-serving
explanations to justify their exculpation from any wrong-doing. Their claims are, moreover, not
substantiated by any of the PBC members. Indeed, as this Court pointedly observed in Velayo v.
COMELEC[20] the "self-serving nature of said Affidavits cannot be discounted. As this Court has
pronounced, reliance should not be placed on mere affidavits."
Be that as it may, petitioners claims are a matter of defense and as pointed out by the Court
recently in Pimentel, Jr. v. COMELEC [21] -
the merit of defenses such as honest mistake, simple error, good faith, and the mere
performance of ministerial duties, as interposed by persons charged with the election offense of
tampering, increasing or decreasing votes received by a candidate in any election, are best
ventilated in the trial proper than at the preliminary investigation.
Second. Section 27 (b) of R.A. No. 6646 which reads, viz: To question the jurisdiction of the lower court or the agency exercising judicial or quasi-judicial
functions, the remedy is a special civil action for certiorari under Rule 65 of the Rules of Court.
xxx [T]he following shall be guilty of an election offense: The petitioner in such cases must clearly show that the public respondent acted without
jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. Grave
x x x...........................x x x...........................x x x
abuse of discretion defies exact definition but generally refers to "capricious or whimsical
exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be
(b)....Any member of the board of election inspectors or board of canvassers who tampers,
patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a
increases or decreases the votes received by a candidate in any election or any member of the
duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in
board who refuses, after proper verification and hearing to credit the correct votes or deduct
an arbitrary and despotic manner by reason of passion and hostility.
such tampered votes.
It has been held, however, that no grave abuse of discretion may be attributed to a court simply
penalizes two (2) acts: first the tampering, increasing or decreasing of votes received by a
because of its alleged misappreciation of facts and evidence. A writ of certiorari may not be used
candidate in any election; and second, the refusal, after proper verification and hearing to credit
to correct a lower tribunals evaluation of the evidence and factual findings. In other words, it is
the correct votes or deduct such tampered votes. The first obtains in this case.
not a remedy for mere errors of judgment, which are correctible by an appeal or a petition for
Petitioner categorically charged private respondents xxx with illegal acts of padding the votes of review under Rule 45 of the Rules of Court.
the senatorial candidates amounting to violations of the Omnibus Election Code, as amended,
In fine, certiorari will only issue to correct errors of jurisdiction not errors of procedure or
and Section 27 of R.A. 6646. They never denied that the total number of votes of the senatorial
mistakes in the findings or conclusions of the lower court. As long as a court acts within its
candidate xxx as appearing in the CoCs and SoVs is significantly and considerably higher xxx than
jurisdiction, any alleged errors committed in the exercise of its discretion will amount to nothing
that appearing in the election returns. xxx
more than errors of judgment which are reviewable by timely appeal and not by special civil
These circumstances in themselves, constitute probable cause that justifies the belief that more action for certiorari.[26]
likely than not, the election offense was committed and was committed by private respondents
WHEREFORE, the petition is hereby DISMISSED for lack of merit.
xxx. Probable cause is based neither on clear and convincing evidence of guilt nor evidence
establishing absolute certainty of guilt.[22] It is merely based on opinion and reasonable belief,
SO ORDERED.
and so it is enough that there exists such state of facts as would lead a person of ordinary caution
and prudence to believe or entertain an honest or strong suspicion that a thing is
so.[23] Considering that private respondents xxx in invoking the defenses of honest mistake,
oversight due to fatigue and performance of ministerial duties virtually admitted the existence of
the discrepancies in the total number of votes garnered by petitioner and other senatorial
candidates, which discrepancies by no stretch of imagination could be dismissed as negligible or
inconsequential, there is not merely a strong suspicion that they actually committed the election
offense which they are charged. The burden of proof appears to have shifted to them to prove
that the said discrepancies cannot be considered illegal and criminal.

The instant petition for certiorari and prohibition, therefore, must be dismissed. It is grounded on
alleged grave abuse of discretion amounting to lack or excess of jurisdiction. Only recently in
Sadikul Sahali v. COMELEC,[24] the Court, citing Garcia, et al. v. HRET,[25] said:

Certiorari as a special civil action can be availed of only if there is a concurrence of the essential
requisites, to wit: (a) the tribunal, board or officer exercising judicial functions has acted without
or in excess of jurisdiction or with grave abuse of discretion amounting to lack or in excess of
jurisdiction, and (b) there is no appeal, nor any plain, speedy and adequate remedy in the
ordinary course of law for the purpose of annulling or modifying the proceeding. There must be a
capricious, arbitrary and whimsical exercise of power for it to prosper.
37