23 Sinsuat v. Comelec

DATU ISRAEL SINSUAT
DATU JABERAEL SINSUAT,

Petitioners,
- versus -
and
G.R. No. 169106

Present:
PANGANIBAN, C.J.,
PUNO,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA, and
VELASCO, JR., JJ.
The HONORABLE COMMISSION

ON ELECTIONS and the SPECIAL
MUNICIPAL
BOARD
OF
CANVASSERS OF SOUTH UPI,
MAGUINDANAO,
as
Public
Respondents, ANTONIO GUNSI,
SR.
&
JOVITO
MARTIN,
ABDULLAH
CAMPONG,
ROLAND MOENDEG, RICARTE
BETITA & ARISTON CATALINO,
and ELINDA ERESE, MARIA
Promulgated:
SARGAN,
LYDIA
ARON,
BIENVENIDO
YAP,
SR.,
RODRIGO TORIALES, WARLITO
June 23, 2006
PINUELA, VICENTE BETITA,
JAIME USMAN, all as Private
Respondents,
Respondents.
x --------------------------------------------------x
DECISION
QUISUMBING, J.:
This petition for certiorari and prohibition with application for the issuance
of a temporary restraining order and/or preliminary prohibitory injunction or
status quo order assails the Order[1] dated August 16, 2005 of the Commission on
Elections (COMELEC) in SPC No. 04-247. The COMELEC denied petitioners
motions to suspend the reconvening of the Special Board of Canvassers (SBOC)

and the proclamation of winning candidates for South Upi, Maguindanao.
The facts are undisputed.
Petitioner Datu Israel C. Sinsuat (Israel) was a mayoralty candidate in the
May 2004 Local Elections in South Upi, Maguindanao, while petitioner Datu
Jaberael R. Sinsuat (Jaberael), a vice mayoralty candidate. Before the
elections, Israel filed a complaint docketed as SPA No. 04-202 for the cancellation
of the certificate of candidacy for mayor of Antonio B. Gunsi, Sr. (Gunsi).
Upon canvassing of votes, the Municipal Board of Canvassers proclaimed as
winners, on different dates, three candidates for mayor, two candidates for vicemayor and different sets of members of the Sangguniang Bayan.
Atty. Clarita Callar, Regional Election Director, Region XII, Cotabato City,
filed a report on the multiple proclamations in South Upi. In a
Resolution[2] dated June 29, 2004, the COMELEC First Division, finding that all
proclamations were based on incomplete canvass, annulled the proclamations. The
COMELEC en banc, in a Resolution[3] dated September 8, 2004, denied Israels
motion for reconsideration[4] and ordered the appointment of the SBOC. The
SBOC was directed to convene and re-canvass all election returns from all 35
precincts of South Upi, and proclaim the winners for mayor, vice-mayor and
members of the Sangguniang Bayan. However, the SBOC was unable to canvass
votes from four of the 35 precincts. Thus, in a resolution dated March 8, 2005, the
SBOC was also directed to act as Special Board of Election Inspectors for
Precincts Nos. 3A,[5] 10A, 15A and 17A, count the ballots therein, and proceed
with the canvassing.
Meanwhile, the COMELEC Second Division, in SPA No. 04-202,

disqualified Gunsi to run for mayor for not being a registered resident of South
Upi.[6] On June 9, 2005, the COMELEC en banc denied Gunsis motion for
reconsideration.[7]
The SBOC, on the other hand, submitted its report[8] dated May 16,
2005 with the following results:
[For Mayor]
Antonio B. Gunsi
Jovito B. Martin
Israel C. Sinsuat
1,954
1,617
1,643
387
872
1,352
1,296
1,229
1,307
653
For Vice-Mayor
Catalino M. Ariston
Ricardo F. Betita
Abdullah A. Campong
Roland B. Moendeg
Jaberael R. Sinsuat
For Councilors
Jose N. Alvarez
Doming L. Angit
Lencio A. Arig
Lydia B. Aron
Armando S. Babas
Antonio B. Batitao
Rene T. Batitao
Vicente F. Betita
Manuel L. Compleza
Abogado K. Dida
Mohamad D. Diocolano
Francilino B. Dizon
Alimudin S. Edzil
Linda L. Erese
Florentino M. Fantingan
Leo T. Galangan
Manuel B. Gunsi
Joselito C. Insoy
Amil B. Kamid
-
859
1,652
214
623
447
1,384
839
1,105
761
508
1,166
2,061
19
1,002
1,026
968
308
Adnan K. Karim
Gems S. Kudteg
Ronnie K. Omar
Sanny M. Piang
Warlito D. Pinuela
Raymundo L. Quinlat, Jr.
Calbeno P. Rawadin
Maria A. Sargan
Manuel B. Gunsi
Alfredo A. Tenorio
Rodrigo S. Toriales
Zainal S. Tumambiling Armando B. Untal
Jaime T. Usman
Bienvenido W. Yap, Sr.
1,290
902
1,284
1,155
1,477
1,356
1,041
1,868
1,026
1,046
1,481
23
747
1,364
1,609[9]
Jaberael questioned 95 ballots from Precincts Nos. 15A and 17A which
would affect the results of the election. It appeared that in 48 ballots from Precinct
No. 15A and 47 ballots from Precinct No. 17A, the name Jay or Sinsuat
written on the space for vice-mayor was erased by a single line and beside it was
the name Campong or Beds which is the nickname of respondent Abdullah
Campong (Campong). In view of this, the SBOC suggested that the commission
check these ballots which it counted in favor of Campong. It wanted the
commission to ascertain whether or not the Boards determination of the integrity
and validity of the ballots from said precincts must be reversed and set aside.[10]
In an Order[11] dated July 26, 2005, the COMELEC en banc ordered the
SBOC to reconvene and proclaim Campong for vice-mayor, and Erlinda L. Erese,
Maria A. Sargan, Lydia B. Aron, Bienvenido W. Yap, Sr., Rodrigo S. Toriales,
Warlito D. Pinuela, Vicente B. Betita and Jaime T. Usman, for councilors. It also
held that no candidate shall be proclaimed mayor due to the disqualification of
Gunsi, the winning candidate for mayor. Instead, it referred the matter to the
Department of Interior and Local Government ARMM for the implementation of
the rules on succession.
Consequently, petitioners filed the following: (1) Motion to suspend

implementation of order promulgated on July 26, 2005; (2) Very urgent motion to
suspend reconvening of the SBOC; and (3) Very urgent motion to recall notice to
reconvene issued by the SBOC. On August 2, 2005, the COMELEC suspended
the reconvening of the SBOC and required the other parties to comment.
In its assailed order dated August 16, 2005, the COMELEC denied the cited
motions holding that they were actually motions for reconsideration of an en
banc resolution which is not allowed in special cases under Section 1, Rule 13 of
the 1993 COMELEC Rules of Procedure. It added that the SBOC had already
considered the contested ballots from Precincts Nos. 15A and 17A as valid, and
counted them in favor of Campong. It ratiocinated that the case before it was not
an election protest where election documents may be examined and
evidence aliunde may be presented to prove that the contested ballots were written
by two persons.
Hence, this petition where petitioners raise the following issues:
1. WHETHER OR NOT THE NINETY-FIVE (95) VOTES
ORIGINALLY AND OBVIOUSLY CAST FOR DATU JABERAEL SINSUAT,
VICE MAYORALTY CANDIDATE, BUT WAS ILLEGALLY ERASED AND
TAMPERED IN FAVOR OF ABDULLAH BEDS CAMPONG SHOULD BE
COUNTED IN FAVOR OF DATU JABERAEL SINSUAT;
2. WHETHER OR NOT DATU ISRAEL SINSUAT, MAYORALTY
CANDIDATE, AS THE CANDIDATE WHO RECEIVED THE NEXT HIGHEST
NUMBER OF VOTES, [SHOULD] BE PROCLAIMED AS THE DULY
ELECTED MUNICIPAL MAYOR OF SOUTH UPI, MAGUINDANAO
CONSIDERING THAT THE DISQUALIFICATION OF THE CANDIDATE
WHO RECEIVED THE HIGHEST NUMBER OF VOTES, ANTONIO GUNSI,
SR., BECAME FINAL AND EXECUTORY PRIOR TO THE PROCLAMATION
OF ANY WINNING CANDIDATE;
3. THE PRIMORDIAL CONSIDERATION IS WHETHER OR NOT
THE AUGUST 16, 200[5] ORDER IS PROPER OR REVERSIBLE.[12]
Simply, the issues in this case are: (1) Did the COMELEC gravely abuse its
discretion when it did not count the contested ballots in favor of Jaberael? (2)
Should petitioner Israel be proclaimed mayor?
On the first issue, petitioners contend that the COMELEC gravely abused its
discretion when it did not consider the contested ballots as votes for Jaberael
despite the SBOCs recommendation. They aver that had the 95 contested ballots
been counted in favor of Jaberael, the latter would have won the elections with
1,324 votes since Campong would only have 1,257 votes. They also maintain that
the COMELEC should have inspected and examined the contested ballots and
made a definite ruling thereon. On the second issue, petitioners claim that the
COMELEC should have proclaimedIsrael as the duly elected mayor since Gunsis
votes should have been considered stray votes. They also aver that Gunsis
disqualification became final and executory before the proclamation of any
winning candidate.
Respondent Campong claims that the case is now moot and academic as the
order sought to be annulled had become final and executory. Further, he argues that
he already took his oath as vice-mayor and assumed his office on August 25,
2005. Thereafter, he succeeded as mayor in view of Gunsis disqualification.
He also contends that petitioners are guilty of forum-shopping considering
Jaberael also filed an election protest, docketed as Case No. 2005-19, now pending
in the Regional Trial Court of Cotabato City, Branch XIV.[13] He argues that the
appreciation of the contested ballots and election documents is best left to the trial
court hearing the election protest.
Considering the circumstances in this case, we find that no grave abuse of
discretion was committed by the respondent COMELEC.
Note that this petition stemmed from a pre-proclamation controversy where

the proclamations of Israel and Jaberael were annulled due to an incomplete
canvass.[14] 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 of the Omnibus Election Code in relation to the
preparation, transmission, receipt, custody and appreciation of election returns.
[15]
The proceedings are summary in nature in that 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.[16]
In this case, Jaberael challenged, not the election returns, but the 95 ballots
reflected in the returns of Precincts Nos. 15A and 17A. Well-settled is the rule that
issues relative to the appreciation of ballots cannot be raised in a pre-proclamation
controversy.[17] Appreciation of ballots is the task of the board of election
inspectors, not the board of canvassers, and questions related thereto are proper
only in election protests.[18] In a regular election protest, the parties may litigate
all the legal and factual issues raised by them in as much detail as they may deem
necessary or appropriate.[19]
Moreover, the COMELEC en bancs decision directing the proclamation of
the winning candidates becomes final and executory after five days from
promulgation unless restrained by the Supreme Court.[20] Since this Court did not
issue a restraining order, the winning candidates must be proclaimed. Upon such
proclamation, the action ceases to be a pre-proclamation controversy. But the
losing party may still file an election contest within ten (10) days following the
date of proclamation.[21]
As a rule, the filing of an election protest (1) precludes the subsequent filing
of a pre-proclamation controversy or (2) amounts to the abandonment of one
earlier filed, thus depriving the COMELEC of the authority to inquire into and pass
upon the title of the protestee or the validity of his proclamation. The reason for
this rule is that once the competent tribunal has acquired jurisdiction of an election
protest, all questions relative thereto will have to be decided in the case itself and
not in another proceeding to prevent confusion and conflict of authority.[22]
While this rule admits exceptions, circumstances of this case do not warrant
their application. Records reveal that, indeed, Jaberael filed an election
protest[23] with the trial court assailing the results in all 35 precincts of South Upi
including the 95 contested ballots from Precincts Nos. 15A and 17A. Hence, such
election protest amounts to his abandonment of the pre-proclamation controversy.
On the second issue, should petitioner Israel be proclaimed mayor?
It is now settled doctrine that the COMELEC cannot proclaim as winner the
candidate who obtains the second highest number of votes in case the winning
candidate is ineligible or disqualified.[24] This rule admits an exception. But this
exception is predicated on the concurrence of two requisites, namely: (1) the one
who obtained the highest number of votes is disqualified; and (2) the electorate is
fully aware in fact and in law of a candidates disqualification so as to bring such
awareness within the realm of notoriety but would nonetheless cast their votes in
favor of the ineligible candidate.[25] The facts warranting the exception do not
obtain in this case.
The complaint for disqualification of Gunsi was filed before the elections but
the COMELEC en banc disqualified him subsequent to the election. Thus, when
the electorate voted Gunsi for mayor on May 10, 2004, it was under the belief that
he was qualified. There is no presumption that the electorate agreed to the
invalidation of their votes as stray votes in case of Gunsis disqualification. The
Court cannot adhere to petitioner Israels contention that the votes cast in favor of
Gunsi are stray votes. The subsequent finding of the COMELEC en banc that
Gunsi is ineligible cannot retroact to the date of elections so as to invalidate the
votes cast for him.[26] At the time, he was not notoriously known by the public to
be ineligible to run for mayor.[27]
Conformably then, the rules on succession under the Local Government
Code shall apply, thus,
SECTION 44. Permanent Vacancies in the Office of the Governor, ViceGovernor, Mayor, and Vice-Mayor.If a permanent vacancy occurs in the office
of the governor or mayor, the vice-governor or vice-mayor concerned shall
become the governor or mayor. . . .
xxxx
For purposes of this Chapter, a permanent vacancy arises when an elective
local official fills a higher vacant office, refuses to assume office, fails to
qualify, dies, is removed from office, voluntarily resigns, or is otherwise
permanently incapacitated to discharge the functions of his office.
x x x x[28] (Emphasis added)
Considering Gunsi failed to qualify as mayor of South Upi, the proclaimed

vice-mayor shall then succeed him as mayor.
WHEREFORE, the petition is DISMISSED for lack of merit, without
prejudice to the election protest filed in the Regional Trial Court ofCotabato City,
Branch XIV. The order dated August 16, 2005 of the Commission on Elections in
SPC No. 04-247 is hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.

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DATU ISRAEL SINSUAT

DATU JABERAEL SINSUAT,

G.R. No. 169106

The HONORABLE COMMISSION

motions to suspend the reconvening of the Special Board of Canvassers (SBOC)

Meanwhile, the COMELEC Second Division, in SPA No. 04-202,

Consequently, petitioners filed the following: (1) Motion to suspend

Note that this petition stemmed from a pre-proclamation controversy where

Considering Gunsi failed to qualify as mayor of South Upi, the proclaimed

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