SECTION 6 - FAILURE OF ELECTIONS – FIST FIGHT

G.R. No. 150312 July 18, 2002

BAGO P. PASANDALAN, petitioner,

vs.
COMMISSION ON ELECTIONS and BAI SALAMONA L. ASUM, respondents.

CARPIO, J.:

A petition for declaration of failure of election must specifically allege the essential grounds that would justify the
exercise of this extraordinary remedy. Otherwise, the Comelec can dismiss outright the petition for lack of merit.
No grave abuse of discretion can be attributed to the Comelec in such a case because the Comelec must exercise
with utmost circumspection the power to declare a failure of election to prevent disenfranchising voters and
frustrating the electorate’s will.

The Case

Before us is a petition for review on certiorari of the Resolution 1 of the Commission on Elections en banc dated
October 12, 2001 dismissing petitioner Bago P. Pasandalan’s ("Pasandalan" for brevity) petition to declare a failure
of election.

Pasandalan and private respondent Bai Salamona L. Asum ("Asum" for brevity) were candidates for mayor in the
Municipality of Lumbayanague, Lanao del Sur during the May 14, 2001 elections.

On May 23, 2001, Pasandalan filed a petition2 before public respondent Commission on Elections ("Comelec" for
brevity) seeking to nullify the election results in Barangay Cabasaran (Precinct Nos. 9A, 10A, 11A and 12A),
Barangay Deromoyod (Precinct Nos. 24A, 25A and 26A), Lamin (Precinct Nos. 29A and 30A), Barangay Wago
(Precinct Nos. 46A, 47A and 48A), Barangay Meniros (Precinct Nos. 32A, 33A and 34A), Barangay Bualan (Precinct
Nos. 6A, 7A and 8A) and Barangay Pantaon (Precinct Nos. 38A and 39A), all of Lumbayanague, Lanao del Sur.

Petitioner alleged that on May 14, 2001, while voting was going on, some Cafgu’s stationed near Sultan Gunting
Elementary School indiscriminately fired their firearms causing the voters to panic and leave the polling center
without casting their votes. Taking advantage of the confusion, supporters of Asum allegedly took the official
ballots, filled them up with the name of Asum and placed them inside the ballot boxes. The incident allegedly
marred the election results in Precinct Nos. 9A-12A, 24A-26A and 29A-30A.

In Precinct Nos. 46A, 47 and 48A, the members of the Board of Election Inspectors ("BEI" for brevity) allegedly
failed to sign their initials at the back of several official ballots and to remove the detachable coupons. The BEI
members allegedly affixed their initials only during the counting of votes.

In Precinct Nos. 6A-8A, 32A-34A and 38A-39A, Pasandalan claims that Asum’s supporters, taking advantage of the
fistfight between Asum’s nephew and the supporters of candidate Norania Salo, grabbed the official ballots and
filled them up with the name of Asum.

Pasandalan contends that a technical examination of several official ballots from the contested precincts would
show that only a few persons wrote the entries.

On June 26, 2001, Asum filed an Answer denying Pasandalan’s allegation that the volley of shots fired on May 14,
2001 disrupted the voting. Private respondent countered that the gunshots were heard around 2:35 p.m. and not
at the start of the voting. On June 30, 2001, Asum was sworn into office and assumed the position of municipal
mayor of the Lumbayanague, Lanao del Sur.
On October 12, 2001, the Comelec issued a Resolution dismissing the petition for lack of merit. 3

Hence, this petition.

The Comelec’s Ruling

The Comelec ruled that the power to declare a failure of election, being an extraordinary remedy, could be
exercised only in three instances: (1) the election is not held; (2) the election is suspended; or (3) the election
results in a failure to elect. The third instance is understood in its literal sense, that is, nobody was elected.

The Comelec dismissed the petition because none of the grounds relied upon by Pasandalan falls under any of the
three instances justifying a declaration of failure of election. First, the elections in the questioned precincts were
held as scheduled. Second, the gunshots heard during the casting of votes did not suspend the election as the
voting continued normally. Third, Asum was elected by a plurality of votes.

The authenticity and integrity of the election returns were left undisturbed throughout the preparation,
transmission, custody and canvass of the returns. Pasandalan alleges fraud and terrorism, in that there was
massive substitution of voters, firing of guns to frighten the voters, and failure of the BEI members to sign at the
back of some official ballots and to remove the detachable coupons. The Comelec ruled that these allegations are
better ventilated in an election contest.

The Comelec did not give credence to Pasandalan’s evidence in support of his allegations of terrorism and fraud
since the evidence consisted only of affidavits executed by Pasandalan’s own poll watchers. The Comelec
considered these affidavits self-serving and insufficient to annul the results of the election. Thus, the Comelec
dismissed the petition for lack of merit.

The Issues

Pasandalan now assails the Comelec’s dismissal of his petition, raising the following issues:

"1. WHETHER THE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE
ABUSE OF DISCRETION IN DISMISSING THE PETITION IN SPA NO. 01-305 FOR ALLEGED LACK OF MERIT;

2. WHETHER THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OF JURISDICTION IN NOT ANNULING THE ELECTION OR DECLARING A FAILURE OF ELECTION IN THE SIXTEEN (16)
QUESTIONED PRECINCTS;

3. WHETHER THE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION OR WITH
GRAVE ABUSE OF DISCRETION IN NOT DECLARING AS ILLEGAL, NULL AND VOID AB INITIO THE PROCLAMATION OF
THE PRIVATE RESPONDENT AS THE DULY ELECTED MAYOR OF LUMBAYANAGUE, LANAO DEL SUR IN THE LAST MAY
14, 2001 REGULAR ELECTIONS AND MAY 30, 2001 SPECIAL ELECTIONS." 4

The Court’s Ruling

We rule that the petition is without merit. The Comelec correctly dismissed the petition for declaration of failure of
election because the irregularities alleged in the petition should have been raised in an election protest, not in a
petition to declare a failure of election.

Under Republic Act No. 7166, otherwise known as "The Synchronized Elections Law of 1991,"5 the Comelec en
banc is empowered to declare a failure of election under Section 6 of the Omnibus Election Code (B.P. Blg. 881).
Section 6 of the Code prescribes the conditions for the exercise of this power, thus:

"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 law for 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 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 but not later than thirty days after the
cessation of the cause of such postponement or suspension of the election or failure to elect."

Based on the foregoing provision, three instances justify a declaration of failure of election. These are:

"(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 has 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; or

(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."6

What is common in these three instances is the resulting failure to elect. 7 In the first instance, no election is held
while in the second, the election is suspended.8 In the third instance, circumstances attending the preparation,
transmission, custody or canvas of the election returns cause a failure to elect. The term failure to elect means
nobody emerged as a winner. 9

Pasandalan asserts that the conditions for the declaration of failure of election are present in this case. The volley
of shots from high-powered firearms allegedly forced the voters to scamper away from the polling place, paving
the way for Asum’s supporters to write the name of Asum on the ballots. The gunfire also frightened Pasandalan’s
poll watchers. The heavy firing allegedly suspended or prevented the holding of elections in the contested
precincts, resulting in failure to elect. The victory of Asum is thus put in serious doubt.

We do not agree. Pasandalan’s allegations do not fall under any of the instances that would justify the declaration
of failure of election. The election was held in the 16 protested precincts as scheduled. At no point was the
election in any of the precincts suspended. Nor was there a failure to elect because of force majeure, violence,
terrorism, fraud or other analogous causes during the preparation, transmission, custody and canvass of the
election returns. The alleged terrorism was not of such scale and prevalence to prevent the holding of the election
or to cause its suspension. In fact, the casting and counting of votes, the preparation, transmission and canvassing
of election returns and the proclamation of the winning candidate took place in due course.

Courts exercise the power to declare a failure of election with deliberate caution so as not to disenfranchise the
electorate.10 The fact alone that actual voting took place already militates against Pasandalan’s cause. Also,
Pasandalan’s allegations of terrorism and fraud are not sufficient to warrant a nullification of the election in the
absence of any of the three instances justifying a declaration of failure of election. Terrorism may not be invoked
to declare a failure of election and to disenfranchise the greater number of the electorate through the misdeeds of
only a few,11 absent any of the three instances specified by law.

To warrant a declaration of failure of election on the ground of fraud, the fraud must prevent or suspend the
holding of an election, or mar fatally the preparation, transmission, custody and canvass of the election
returns.12 The conditions for the declaration of failure of election are stringent. Otherwise, elections will never end
for losers will always cry fraud and terrorism.13

The allegations of massive substitution of voters, multiple voting, and other electoral anomalies should be resolved
in a proper election protest14 in the absence of any of the three instances justifying a declaration of failure of
election. In an election protest, the election is not set aside, and there is only a revision or recount of the ballots
cast to determine the real winner.15

The nullification of elections or declaration of failure of elections is an extraordinary remedy. 16 The party who
seeks the nullification of an election has the burden of proving entitlement to this remedy. It is not enough that a
verified petition is filed. The allegations in the petition must make out a prima facie case for the declaration of
failure of election, and convincing evidence must substantiate the allegations. 17

In the instant case, it is apparent that the allegations do not constitute sufficient grounds for the nullification of the
election. Pasandalan even failed to substantiate his allegations of terrorism and irregularities. His evidence
consisted only of affidavits. Mere affidavits are insufficient,18 more so in this case since the affidavits were all
executed by Pasandalan’s own poll watchers. Factual findings of the Comelec are binding on this
Court.19Accordingly, the following findings of the Comelec in the instant case must be respected:

"xxx There was an allegation in the amended petition that while voting was taking place in Sultan Gunting
Elementary School, gunshots were heard causing the voters to scamper for safety and leave the polling center
without having cast their votes. However, other than his bare allegation and the ‘pre-typed’ affidavits of his
watchers, petitioner did not present substantial and convincing evidence to support his claim. On the other hand, 1
Lt. Frederick Galang Pa of the 29th Infantry Battalion assigned in Lumbayanague categorically declared in his
affidavit that despite the gunshots which were heard at around 2:35 PM when the polls were about to close, "the
voting continued normally." This statement was bolstered by the narrative report of Urangutan Mamailao, Election
Officer of Lumbayanague, on the conduct of the election in said municipality. The report was spontaneously
prepared when the incident happened. Taken in the light of the presumption of regularity in the performance of
official functions, these two affidavits carry great weight. Third, the authenticity and integrity of the election
returns are left undisturbed throughout the preparation, transmission, custody and canvass thereof. There was no
allegation, much less proof that the sanctity of the election returns was defiled.

xxx

A thorough examination of the affidavits reveals that they suffer from both extrinsic and intrinsic invalidity. The
form and the contents of the affidavits were pre-typed, and all the affiants had to do was to fill-up the blank
spaces for their names and precinct assignments. This clearly shows that some other person prepared the
affidavits and it is doubtful whether the affiants understood the contents thereof before they signed them.

Also worth noting is the fact that the contents of the affidavits are identical. It is highly questionable why different
persons have exactly the same observation of different incidents. Even persons confronted with the same
occurrence would have different observations of the same incident because human perception is essentially
affected by several factors like the senses, mental condition, personal disposition, environment, etc.

Moreover, the affidavits contain inconsistent statements and incredible allegations which bolster the conclusion
that they were tailored to suit the needs of the petitioner. For example, the joint-affidavit of Badjomura Calauto
and Macaruog Ampuan states that they were in Barangay Cabasaran during the May 14 election when they saw
the men of respondent fill-up the ballots in Precinct Nos. 29A-30A of Barangay Lamin. The venue of voting for
Barangay Cabasaran was Sultan Gunting Central Elementary School while that of Barangay Lamin was Lamin
Primary School. How they were able to witness said incident when they were miles away from where it happened
is mystifying. Besides, this is not the proper forum to challenge illegal voters. Even at the precinct level, petitioner’s
watchers are empowered to question any irregularity which they think may have been committed by any person
or to challenge the capacity of any person offering to vote. Failing to avail himself of this remedy, petitioner cannot
now pass the burden to innocent voters by calling for the annulment of the results of a validly held election." 20

Pasandalan bewails the Comelec’s dismissal of his petition without first conducting a technical examination of the
questioned precincts. Pasandalan claims that had the Comelec made a technical examination of the questioned
precincts, the Comelec would have discovered massive substitution of voters, terrorism, violence, threats,
coercion, intimidation and other electoral frauds, resulting in a failure of election. Pasandalan insists that a
technical examination in this case would have been proper as in Typoco, Jr. v. Commission on Elections,21 which is
also a case of failure of election.

The Comelec is not mandated to conduct a technical examination before it dismisses a petition for nullification of
election when the petition is, on its face, without merit. In Typoco, petitioner Typoco buttressed his petition with
independent evidence that compelled the Comelec to conduct a technical examination of the questioned returns.
Typoco filed a Motion to Admit Evidence to prove that a substantial number of election returns were
manufactured. Typoco claimed that the returns were prepared by only one person based on the report of
Francisco S. Cruz, a licensed examiner of questioned documents, who examined copies of the election returns of
Lakas-NUCD. In the present case, Pasandalan failed to attach independent and objective evidence other than the
self-serving affidavits of his own poll watchers.

In Mitmug v. Commission on Elections,22 we ruled that the Comelec could dismiss outright a petition for
nullification of election if it is plainly groundless and the allegations therein could be better ventilated in an
election protest. In Banaga, Jr. v. Commission on Elections,23 we reiterated this doctrine, thus -

"Finally, petitioner claims that public respondent gravely abused its discretion when it dismissed his petition motu
propio. However, the fact that a verified petition has been filed does not mean that a hearing on the case should
first be held before Comelec can act on it. The petition to declare a failure of election and/or to annul election
results must show on its face that the conditions necessary to declare a failure to elect are present. In their
absence, the petition must be denied outright. Public respondent had no recourse but to dismiss the petition. Nor
may petitioner now complain of denial of due process, on this score, for his failure to properly file an election
protest. The Comelec can only rule on what was filed before it. It committed no grave abuse of discretion in
dismissing his petition ‘to declare failure of elections and/or for annulment of elections’ for being groundless,
hence without merit."

Clearly, the fact that a verified petition is filed with the Comelec does not necessarily mean that a technical
examination or a hearing on the case should be conducted first before the Comelec can act on the petition. There
is no grave abuse of discretion if the Comelec dismisses the petition even without a technical examination or
hearing if the petition fails to show on its face the existence of any of the three instances required by law to
declare a failure of election. The Comelec in this case correctly dismissed the petition.

Pasandalan believes that notwithstanding the fact that actual voting took place in the questioned precincts, the
election in this case, just like in Basher v. Commission on Elections,24 was "illegal, irregular, and
void."25 Citing Basher, Pasandalan argues that the peculiar set of facts in this case do not merely show a failure of
election "but the absence of a valid electoral exercise." 26

The fact that an election is actually held prevents as a rule a declaration of failure of election. It is only when the
election is attended by patent and massive irregularities and illegalities that this Court will annul the
election. Basheris an example of such a case.

In Basher, after a series of failed elections in Barangay Maidan, Municipality of Tugaya, Lanao del Sur during the
1997 barangay elections, the election was reset to August 30, 1997. Due to the prevailing tension in the locality,
the voting started only at around 9 p.m. and lasted until the early morning of the following day. Basher filed a
petition for the nullification of election. The Comelec ruled against a failure of election because actual voting had
taken place. However, we overturned the Comelec ruling because the election was unauthorized and invalid. The
electorate was not given sufficient notice that the election would push through after 9 p.m. of the same day.
Moreover, the voting did not comply with the procedure laid down by law and by Comelec rules as to the time and
place of voting. Thus, we held that the "election" was illegal, irregular and void. Consequently, we annulled the
proclamation of the winning candidate and ordered a special election.
Basher does not apply to this case. Unlike in Basher, the election in this case proceeded as scheduled, in
accordance with law and Comelec rules. None of the extreme circumstances that marred the election in Basher is
present in this case. We have ruled that there is failure of election only if the will of the electorate is muted and
cannot be ascertained.27 If the will of the people is determinable, the same must be respected as much as
possible.28 In this case, the will of the electorate is readily discernible. Pasandalan should have filed an election
protest to substantiate his allegations of electoral anomalies, not a petition to declare a failure of election.

WHEREFORE, the instant petition is DISMISSED. The assailed Resolution of public respondent Comelec
is AFFIRMED. Costs against petitioner.

SO ORDERED.

SECTION 6 - FAILURE OF ELECTIONS – USE OF FAKE BALLOTS

G.R. No. 164225 April 19, 2006

JUHARY A. GALO, Petitioner,

vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPAL BOARD OF CANVASSERS OF LUMBA-BAYABAO,
LANAO DEL SUR, and MINDA DAGALANGIT, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

Before us for resolution is the Petition1 for Certiorari,2 assailing the Resolution3 dated July 2, 2004 of the
Commission on Elections

(COMELEC) En Banc in SPA No. 04-348.

Juhary A. Galo, petitioner, and Minda P. Dagalangit, private respondent, were among the five candidates for
mayor in the Municipality of Lumba-Bayabao, Lanao del Sur in the May 10, 2004 national and local elections.

On May 10, 2004, however, there was a failure of election in Lumba-Bayabao due to serious disagreements
among the various local candidates involving the clustering of precincts, the distribution of election
paraphernalia, and the appointment of the members of the various Boards of Election Inspectors. As a
consequence, the COMELEC scheduled and held a special election on May 12, 2004.

On May 19, 2004, petitioner Galo filed with the COMELEC En Banc a petition4 to declare a failure of election
and to annul the results of the May 12, 2004 special election involving six precincts located in six Barangays of
Lumba-Bayabao, namely: Precinct Nos. 1A (Barangay Maribu), 34A (Barangay Sunggod), 29B (Barangay
Rumayas), 22A (Barangay Lubo Basara), 31A (Barangay Salaman), and 36A (Barangay Tamlang). Galo’s
petition, docketed as SPA No. 04-348, is based on his claim that there were "serious and massive irregularities
committed by the supporters of Dagalangit, in conspiracy with members of the Board of Election Inspectors."
Specifically, petitioner alleged that respondent Dagalangit’s supporters succeeded in placing fake ballots inside
a ballot box in Precinct No. 1A (Barangay Maribo); that in Precinct No. 34A (Barangay Sunggod), the voting
was irregular because the election inspectors hid a ballot box allegedly to protect it from being forcibly taken;
that during the counting of votes, fake ballots were found in the ballot boxes in Precinct Nos. 22A (Barangay
Lubo Basara), 29B (Barangay Rumayas), 31A (Barangay Salaman), 34A (Barangay Sunggod), and 36A
(Barangay Tamlang); that the election inspectors in the said precincts refused to enter in the minutes their valid
objections; that all the election returns accomplished based on the fake ballots do not reflect the true will of the
electorate; and that the said irregularities justify the annulment of the election held. Petitioner thus prayed that
the COMELEC issue a temporary restraining order (TRO) directing the Board of Canvassers to desist from
canvassing the election returns from the said precincts. Petitioner further prayed that after due hearing, the
results of the election be annulled; and that an immediate investigation of the anomalies committed during the
election be conducted.
On May 21, 2004, the COMELEC En Banc issued a TRO directing the Municipal Board of Canvassers of
Lumba-Bayabao to SUSPEND its proceedings, particularly the proclamation of the winning candidates, until
further orders.

In her Answer dated May 24, 2004, respondent Dagalangit denied petitioner’s allegations of the existence of
fake ballots in the specified precincts. She averred that during the May 12, 2004 special election, all the 39
precincts of Lumba-Bayabao functioned in an orderly and peaceful manner; that the ballots have been properly
appreciated, counted and entered in the election returns duly accomplished by the Board of Election Inspectors
under the close scrutiny of the candidates’ watchers; and that the use of fake ballots is not a valid ground for
nullifying the elections. She then prayed that SPA No. 04-348 be dismissed. 1avvphil.net

During the May 27, 2004 hearing, petitioner did not appear before the COMELEC En Banc. Instead, he filed an
"Urgent Ex-Parte Motion/Manifestation"5 stating that he was already proclaimed as the winning candidate on
May 20, 2004, thereby rendering his petition "moot and academic;" and that he "has lost interest in the
prosecution of the same." He prayed that his petition be considered withdrawn.

Thereafter, pursuant to the order of the COMELEC En Banc, the contending parties filed their respective
memoranda.

On July 2, 2004, the COMELEC En Banc issued the assailed Resolution (1) dismissing the petition for lack of
merit; (2) annulling petitioner’s proclamation on May 20, 1994 for having been "made surreptitiously and in
contravention of the May 21, 2004 Order of the Commission;" and (3) ordering the Municipal Board of
Canvassers of Lumba-Bayabao "to immediately convene, complete the canvass, and proclaim the winning
candidates." The COMELEC En Banc held that pursuant to the Omnibus Election Code, the alleged use of fake
ballots in the questioned precincts is not one of the grounds for nullifying the election results. In fact, all the 39
precincts of Lumba-Bayabao functioned during the May 12, 2004 special elections.

On July 4, 2004, the Municipal Board of Canvassers of Lumba-Bayabao completed its canvass proceedings
and proclaimed respondent Dagalangit as the winning candidate for mayor of that municipality. 6

Petitioner now comes to this Court through the instant Petition for Certiorari alleging that the COMELEC, in
issuing the challenged Resolution, acted with grave abuse of discretion amounting to lack or excess of
jurisdiction.

Respondents, in their respective Comments, vehemently opposed the petition and prayed that the same be
dismissed for being utterly unmeritorious.

The petition is bereft of merit.

We cannot sustain petitioner’s contention that the COMELEC En Banc gravely abused its discretion in
dismissing his petition for a declaration of a failure of elections and for the annulment of the election results.
Section 6 of the Omnibus Election Code prescribes the conditions for such a declaration, thus:

Section 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 law for closing of the voting, or after the voting and during the preparation and the transmission of
the 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 the 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 but not later than thirty
days after the cessation of the cause of such postponement or suspension of the election or failure to elect.
(Underscoring supplied)

In Tan v. COMELEC,7 we held that the above provisions lay down three instances where a failure of election
may be declared, namely: (1) 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; (2) the election in any polling place has
been suspended before the hour fixed by law for the closing of the voting on account of any of such causes; or
(3) after the voting and during the preparation, transmission, custody or canvass of the election returns, the
election results in a failure to elect on account of any of said aforementioned causes. In all instances, there
must have been a failure to elect. This is obvious in the first two scenarios, where the election was not held
and where the election was suspended. As to the third scenario, the circumstances attending the
preparation, transmission, custody or canvass of the election returns cause a failure to elect. The term
failure to elect means "nobody emerges as a winner."8

The established rule is that the nature of an action and the jurisdiction of the tribunal are determined by the law
and the allegations in the petition regardless of whether or not the petitioner is entitled to the relief
sought.9 Here, it is not disputed that all the 39 precincts in Lumba-Bayabao functioned in the May 12, 2004
special elections. And as correctly observed by respondent COMELEC En Banc, petitioner himself failed to
allege in his petition that no election was conducted; and that the use of fake ballots is not a ground to declare
a failure of elections.

In Mitmug v. Commission on Elections,10 we further held that before the COMELEC can act on a verified
petition seeking to declare a failure of election, two 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 a failure to elect; and, second, the votes cast would affect the result of the election. In the case at bar, both
conditions are not present.

Petitioner himself admits in his petition that during the special election, voting took place in the questioned
precincts. He also failed to show that the votes cast would affect the results of the election.

Petitioner also questions the COMELEC’s nullification of his proclamation on May 20, 2004 by the Municipal
Board of Canvassers. We sustain the COMELEC En Banc’s action. As shown by the records, petitioner was
proclaimed as mayor on the basis of the results of "the elections held on May 10, 2004." 11 As stated earlier, no
election was held on that day.

In fine, the COMELEC, in issuing the assailed Resolution, did not act with grave abuse of discretion.

WHEREFORE, the petition is DISMISSED. Costs against petitioner.

SO ORDERED.

SECTION 6 - FAILURE OF ELECTION – Election Returns

G.R. No. 136191 November 29, 1999

JESUS O. TYPOCO, JR., petitioner,

vs.
COMMISSION ON ELECTIONS (COMELEC) EN BANC, and JESUS EMMANUEL PIMENTEL, respondents.

GONZAGA-REYES, J.:

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

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
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.

SECTION 6 - FAILURE OF ELECTION – twin grounds for special election

G.R. No. 106270-73 February 10, 1994

SULTAN MOHAMAD L. MITMUG, petitioner,

vs.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF LUMBA-BAYABAO, LANAO DEL SUR, and
DATU GAMBAI DAGALANGIT, respondents.

Pimentel, Apostol, Layosa & Sibayan Law Office for petitioner.

Brillantes, Nachura, Navarro & Arcilla for private respondent.

BELLOSILLO, J.:

The turnout of voters during the 11 May 1992 election in Lumba-Bayabao, Lanao del Sur, was abnormally low. As a
result, several petitions were filed seeking the declaration of failure of election in precincts where less than 25% of
the electorate managed to cast their votes. But a special election was ordered in precincts where no voting
actually took place. The Commission on Elections (COMELEC) ruled that for as long as the precincts functioned and
conducted actual 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.

Petitioner SULTAN MOHAMAD L. MITMUG and private respondent DATU GAMBAI DAGALANGIT 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.

As was heretofore stated, voter turnout was rather low, particularly in forty-nine (49) precincts where the average
voter turnout was 22.26%, i.e., only 2,330 out of 9,830 registered voters therein cast their votes. Five (5) of these
precincts did not conduct actual voting at all.1

Consequently, COMELEC ordered the holding of a special election on 30 May 1992 in the five (5) precincts which
failed to function during election day. On 30 July 1992 another special election was held for a sixth precinct.2

In the interim, petitioner filed a petition seeking the annulment of the special election conducted on 30 May 1992
alleging various irregularities such as the alteration, tampering and substitution of ballots. But on 13 July 1992,
COMELEC considered the petition moot since the votes in the subject precincts were already counted. 3

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:

1. SPA No. 92-324: On 6 June 1992, private respondent Datu Gamba Dagalangit filed an urgent petition praying for
the holding of a special election in Precinct No. 22-A alleging therein that when the ballot box was opened, ballots
were already torn to pieces. On 14 July 1992, the petition was granted and a special election for Precinct No. 22-A
was set for 25 July 1992.4
2. SPC No. 92-336: On 16 June 19992, Datu Elias Abdusalam, another mayoralty candidate, filed a petition to
declare failure of election in twenty-nine (29) more precincts as a result of alleged 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 failure of election can be declared. 7 Since voting was actually
conducted in the contested precincts, there was no basis for the petition.

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 a petition which in
the main sought the declaration of failure of election in all sixty-seven (67) precincts of
Lumba-Bayabao, Lanao del Sur, on the ground of massive disenfranchisement of voters. 10 On 9 July 1992,
COMELEC dismissed the petition, ruling that the allegations therein did not support a case of failure of election. 11

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 the COMELEC Rules of Procedure
such motion was a prohibited pleading. 13

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 new Board convened and began
the canvassing of votes. Finally, on 31 July 1992, private respondent was proclaimed the duly elected Mayor of
Lumba-Bayabao, Lanao del Sur.

On 3 August 1992, petitioner instituted the instant proceedings seeking the declaration of failure of election in
forty-nine (49) precincts where less than a quarter of the electorate were able to cast their votes. He also prayed
for the issuance of a temporary restraining order to enjoin private respondent from assuming office.

On 10 August 1992, petitioner lodged an election protest with the Regional trial Court of Lanao del Sur disputing
the result not only of some but all the precincts of Lumba-Bayabao, del Sur. 14

Respondents, on the other hand, assert that with the filing of an election protest, petitioner is already deemed to
have abandoned the instant petition.

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 his protest states "[T]hat on August
3, 1992, your protestant filed a Petition for Certiorari with the
Supreme Court . . . docketed as G.R. No. 106270 assailing the validity of the proclamation of the 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 ad cautela is filed, the Court retains jurisdiction to hear the
petition seeking to annul an election. 16

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 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.

SECTION 12 - Disqualification
G.R. No. 147904 October 4, 2002

NESTOR B. MAGNO, petitioner,

vs.
COMMISSION ON ELECTIONS and CARLOS C. MONTES, respondents.

DECISION

CORONA, J.:

Before this Court is a petition for certiorari under Rule 65 which seeks to annul and set aside the resolution dated
May 7, 2001 of the Commission on Elections as well as the resolution dated May 12, 2001 denying petitioner’s
motion for reconsideration.

This petition originated from a case filed by private respondent on March 21, 2001 for the disqualification of
petitioner Nestor Magno as mayoralty candidate of San Isidro, Nueva Ecija during the May 14, 2001 elections on
the ground that petitioner was previously convicted by the Sandiganbayan of four counts of direct bribery
penalized under Article 210 of the Revised Penal Code. It appears that on July 25, 1995, petitioner was sentenced
to suffer the indeterminate penalty of 3 months and 11 days of arresto mayor as minimum to 1 year 8 months and
21 days of prision correccional as maximum, for each of the four counts of direct bribery. Thereafter, petitioner
applied for probation and was discharged on March 5, 1998 upon order of the Regional Trial Court of Gapan,
Nueva Ecija.

On May 7, 2001, the Commission on Elections (COMELEC) rendered a decision granting the petition of private
respondent and declaring that petitioner was disqualified from running for the position of mayor in the May 14,
2001 elections. In ruling against petitioner, the COMELEC cited Section 12 of the BP 881 or the Omnibus Election
Code which provides as follows:

Sec. 12. Disqualifications. – Any person who has been declared by competent authority insane or incompetent, or
has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has
been sentenced to a penalty of more than eighteen (18) months, or for a crime involving moral turpitude, shall be
disqualified to be a candidate and to hold any office, unless he has been given plenary pardon, or granted amnesty.

The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by
competent authority that said insanity or incompetence had been removed or after the expiration of a period of
five years from his service of sentence, unless within the same period he again becomes disqualified.

The above provision explicitly lifts the disqualification to run for an elective office of a person convicted of a crime
involving moral turpitude after five (5) years from the service of sentence. According to the COMELEC, inasmuch as
petitioner was considered to have completed the service of his sentence on March 5, 1998, his five-year
disqualification will end only on March 5, 2003.

On May 10, 2001, petitioner filed a motion for reconsideration but the same was denied by the COMELEC in its
resolution dated May 12, 2001.

Hence, this petition.

Petitioner argues that direct bribery is not a crime involving moral turpitude. Likewise, he cites Section 40 of RA
7160, otherwise known as the Local Government Code of 1991, which he claims is the law applicable to the case at
bar, not BP 881 or the Omnibus Election Code as claimed by the COMELEC. Said provision reads:

Section 40. Disqualifications. - The following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one
(1) year or more of imprisonment, within two (2) years after serving sentence.

xxxx

Petitioner insists that he had already served his sentence as of March 5, 1998 when he was discharged from
probation. Such being the case, the two-year disqualification period imposed by Section 40 of the Local
Government Code expired on March 5, 2000. Thus, petitioner was qualified to run in the 2001 elections.

Meanwhile, Sonia Lorenzo was proclaimed by the COMELEC as the duly elected mayor of San Isidro, Nueva Ecija.
Thus, on June 19, 2001, petitioner filed a supplemental petition which this Court merely noted in its resolution
dated June 26, 2001. In his supplemental petition, petitioner assailed the proclamation of Sonia Lorenzo on the
ground that the propriety of his disqualification was still under review by this Court. Petitioner likewise asked this
Court to declare him as the duly elected municipal mayor instead of Sonia Lorenzo.

On July 18, 2001, the Solicitor-General filed his manifestation and agreed with petitioner that COMELEC should
have applied Section 40 of the Local Government Code.

The main issue is whether or not petitioner was disqualified to run for mayor in the 2001 elections. In resolving
this, two sub-issues need to be threshed out, namely: (1) whether the crime of direct bribery involves moral
turpitude and (2) whether it is the Omnibus Election Code or the Local Government Code that should apply in this
situation.

Regarding the first sub-issue, the Court has consistently adopted the definition in Black’s Law Dictionary of ‘moral
turpitude’ as:

"x x x an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society
in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct
contrary to justice, honesty, modesty, or good morals."1

Not every criminal act, however, involves moral turpitude. It frequently depends on the circumstances surrounding
the violation of the law.2

In this case, we need not review the facts and circumstances relating to the commission of the crime considering
that petitioner did not assail his conviction. By applying for probation, petitioner in effect admitted all the
elements of the crime of direct bribery:

1. the offender is a public officer;

2. the offender accepts an offer or promise or receives a gift or present by himself or through another;
3. such offer or promise be accepted or gift or present be received by the public officer with a view to committing
some crime, or in consideration of the execution of an act which does not constitute a crime but the act must be
unjust, or to refrain from doing something which it is his official duty to do; and [Italics supplied]

4. the act which the offender agrees to perform or which he executes is connected with the performance of his
official duties.3

Moral turpitude can be inferred from the third element. The fact that the offender agrees to accept a promise or
gift and deliberately commits an unjust act or refrains from performing an official duty in exchange for some
favors, denotes a malicious intent on the part of the offender to renege on the duties which he owes his
fellowmen and society in general. Also, the fact that the offender takes advantage of his office and position is a
betrayal of the trust reposed on him by the public. It is a conduct clearly contrary to the accepted rules of right and
duty, justice, honesty and good morals. In all respects, direct bribery is a crime involving moral turpitude.

It is the second sub-issue which is problematical. There appears to be a glaring incompatibility between the five-
year disqualification period provided in Section 12 of the Omnibus Election Code and the two-year disqualification
period in Section 40 of the Local Government Code.

It should be noted that the Omnibus Election Code (BP 881) was approved on December 3, 1985 while the Local
Government Code (RA 7160) took effect on January 1, 1992. It is basic in statutory construction that in case of
irreconcilable conflict between two laws, the later enactment must prevail, being the more recent expression of
legislative will.4 Legis posteriores priores contrarias abrogant. In enacting the later law, the legislature is presumed
to have knowledge of the older law and intended to change it. Furthermore, the repealing clause of Section 534 of
RA 7160 or the Local Government Code states that:

(f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative
regulations, or part or parts thereof which are inconsistent with any provisions of this Code are hereby repealed or
modified accordingly.

In accordance therewith, Section 40 of RA 7160 is deemed to have repealed Section 12 of BP 881. Furthermore,
Article 7 of the Civil Code provides that laws are repealed only by subsequent ones, and not the other way around.
When a subsequent law entirely encompasses the subject matter of the former enactment, the latter is deemed
repealed.

In David vs. COMELEC5, we declared that RA 7160 is a codified set of laws that specifically applies to local
government units. Section 40 thereof specially and definitively provides for disqualifications of candidates for
elective local positions. It is applicable to them only. On the other hand, Section 12 of BP 881 speaks of
disqualifications of candidates for any public office. It deals with the election of all public officers. Thus, Section 40
of RA 7160, insofar as it governs the disqualifications of candidates for local positions, assumes the nature of a
special law which ought to prevail.

The intent of the legislature to reduce the disqualification period of candidates for local positions from five to two
years is evident. The cardinal rule in the interpretation of all laws is to ascertain and give effect to the intent of the
law.6 The reduction of the disqualification period from five to two years is the manifest intent.

Therefore, although his crime of direct bribery involved moral turpitude, petitioner nonetheless could not be
disqualified from running in the 2001 elections. Article 12 of the Omnibus Election Code (BP 881) must yield to
Article 40 of the Local Government Code (RA 7160). Petitioner’s disqualification ceased as of March 5, 2000 and he
was therefore under no such disqualification anymore when he ran for mayor of San Isidro, Nueva Ecija in the May
14, 2001 elections.

Unfortunately, however, neither this Court nor this case is the proper forum to rule on (1) the validity of Sonia
Lorenzo’s proclamation and (2) the declaration of petitioner as the rightful winner. Inasmuch as Sonia Lorenzo had
already been proclaimed as the winning candidate, the legal remedy of petitioner would have been a timely
election protest.

WHEREFORE, the instant petition is hereby PARTIALLY GRANTED. The challenged resolutions of the Commission on
Elections dated May 7, 2001 and May 12, 2001 are hereby reversed and set aside. The petitioner’s prayer in his
supplemental petition for his proclamation as the winner in the May 14, 2001 mayoralty elections in San Isidro,
Nueva Ecija, not being within our jurisdiction, is hereby denied.

SO ORDERED

SECTION 12 – Disqualification (BP 22)

G.R. No. 148326 November 15, 2001

PABLO C. VILLABER, petitioner,

vs.
COMMISSION ON ELECTIONS and REP. DOUGLAS R. CAGAS, respondents.

SANDOVAL-GUTIERREZ, J.:

In this petition for certiorari, Pablo C. Villaber, seeks the nullification of two Resolutions of the Commission on
Election (COMELEC) in SPA-01-058. The first one was issued by its Second Division on April 30, 2001, disqualifying
him as a candidate for the position of Congressman in the First District of the Province of Davao del Sur in the last
May 14, 2001 elections, and cancelling his certificate of candidacy; and the second is the en banc Resolution dated
May 10, 2001 denying his motion for reconsideration.

Both petitioner Villaber and respondent Douglas R. Cagas were rival candidates for a congressional seat in the First
District of Davao del Sur during the May 14, 2001 elections. Villaber filed his certificate of candidacy for
Congressman on February 19, 2001,1 while Cagas filed his on February 28, 2001.2

On March 4, 2001, Cagas filed with the Office of the Provincial Election Supervisor, Commission On Elections
(COMELEC), Davao del Sur, a consolidated petition3 to disqualify Villaber and to cancel the latter's certificate of
candidacy. Cagas alleged in the said consolidated petition that on March 2, 1990, Villaber was convicted by the
Regional Trial Court of Manila, Branch 15, in Criminal Case No. 86-46197 for violation of Batas Pambansa Blg. 22
and was sentenced to suffer one (1) year imprisonment. The check that bounced was in the sum of
P100,000.00.4Cagas further alleged that this crime involves moral turpitude; hence, under Section 12 of the
Omnibus Election Code, he is disqualified to run for any public office. On appeal, the Court of Appeals (Tenth
Division), in its Decision dated April23, 1992 in CA-G.R. CR No. 09017,5 affirmed the RTC Decision. Undaunted,
Villaber filed with this Court a petition for review on certiorari assailing the Court of Appeals Decision, docketed as
G. R. No. 106709. However, in its Resolution6 of October 26, 1992, this Court (Third Division) dismissed the
petition. On February 2, 1993, our Resolution became final and executory.7 Cagas also asserted that Villaber made
a false material representation in his certificate of candidacy that he is "Eligible for the office I seek to be elected "
- which false statement is a ground to deny due course or cancel the said certificate pursuant to Section 78 of the
Omnibus Election Code.

In his answers8 to the disqualification suit, Villaber countered mainly that his conviction has not become final and
executory because the affirmed Decision was not remanded to the trial court for promulgation in his
presence.9Furthermore, even if the judgment of conviction was already final and executory, it cannot be the basis
for his disqualification since violation of B.P. Blg. 22 does not involve moral turpitude.
After the opposing parties submitted their respective position papers, the case was forwarded to the COMELEC,
Manila, for resolution.1âwphi1.nêt

On April 30, 2001, the COMELEC (Second Division), finding merit in Cagas' petition, issued the challenged
Resolution10 in SPA A 01-058 declaring Villaber disqualified as "a candidate for and from holding any elective public
office" and canceling his certificate of candidacy. The COMELEC ruled that a conviction for violation of B.P. BIg. 22
involves moral turpitude following the ruling of this Court en banc in the administrative case of People vs. Atty. Fe
Tuanda.11

Villaber fIled a motion for reconsideration but was denied by the COMELEC en banc in a Resolution12 dated May
10, 2001.

Hence, this petition.

The sole issue for our Resolution is whether or not violation of B.P. Blg. 22 involves moral turpitude. The COMELEC
believes it is. In disqualifying petitioner Villaber from being a candidate for Congressman, the COMELEC applied
Section 12 of the Omnibus Election Code which provides:

"Sec. 12. Disqualifications. - Any person who has been declared by competent authority insane or incompetent,
or has been sentenced by final judgment for subversion, insurrection, rebellion, or for any offense for which he
has been sentenced to a penalty of more than eighteen months, or for a crime involving moral turpitude, shall be
disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted
amnesty.

"The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by
competent authority that said insanity or incompetence had been removed or after the expiration of a period of
five years from his service of sentence, unless within the same period he again becomes disqualified." (Emphasis
ours)

As to the meaning of "moral turpitude," we have consistently adopted the definition in Black's Law Dictionary as
"an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in
general, contrary to the accepted and customary rule of right and duty between man and woman, or conduct
contrary to justice, honesty, modesty, or good morals."13

In In re Vinzon,14 the term "moral turpitude" is considered as encompassing "everything which is done contrary to
justice, honesty , or good morals."

We, however, clarified in Dela Torre vs. Commission on Elections15 that "not every criminal act involves moral
turpitude," and that ''as to what crime involves moral turpitude is for the Supreme Court to determine."16 We
further pronounced therein that:

"...in International Rice Research Institute vs. NLRC (221 SCRA 760 [1993]), the Court admitted that it cannot always
be ascertained whether moral turpitude does or does not exist by merely classifying a crime as malum in se or
as malum prohibitum. There are crimes which are mala in se and yet but rarely involve moral turpitude, and there
are crimes which involve moral turpitude and are mala prohibita only. In the final analysis, whether or not a crime
involves moral turpitude is ultimately a question of fact and frequently depends on all the circumstances
surrounding the violation of the statute." (Emphasis ours)

We reiterate here our ruling in Dela Torre17 that the determination of whether a crime involves moral turpitude is
a question of fact and frequently depends on all the circumstances surrounding the violation of the statute.

In the case at bar, petitioner does not assail the facts and circumstances surrounding the commission of the crime.
In effect, he admits all the elements of the crime for which he was convicted. At any rate, the question of whether
or not the crime involves moral turpitude can be resolved by analyzing its elements alone, as we did in Dela
Torrewhich involves the crime of fencing punishable by a special law.18

Petitioner was charged for violating B.P. Blg. 22 under the following Information:

"That on or about February 13, 1986, in the City of Manila, Philippines, the said accused did then and there wilfully,
unlawfully and feloniously make or draw and issue to Efren D. Sawal to apply on account or for value Bank of
Philippine Islands (Plaza Cervantes, Manila) Check No. 958214 dated February 13, 1986 payable to Efren D. Sawal
in the amount of P100,000.00, said accused well knowing that at the time of issue he did not have sufficient
funds in or credit with the drawee bank for payment of such check in full upon its presentment, which check,
when presented for payment within ninety (90) days from the date thereof, was subsequently dishonored by
the drawee bank for insufficiency of funds, and despite receipt of notice of such dishonor, said accused failed to
pay said Efren D. Sawal the amount of said check or to make arrangement for full payment of the same within
five (5) banking days after receiving said notice." (Emphasis ours)

He was convicted for violating Section 1 of B.P. Blg. 22 provides :

"SECTION 1. Checks without sufficient funds. - Any person who makes or draws and issues any check to apply on
account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the
drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored
by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had
not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment
of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double
the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and
imprisonment at the discretion of the court." (Emphasis ours).

The elements of the offense under the above provision are:

1. The accused makes, draws or issues any check to apply to account or for value;

2. The accused knows at the time of the issuance that he or she does not have sufficient funds in, or credit with,
the drawee bank for the payment of the check in full upon its presentment; and

3. The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or it would have
been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop
payment.19

The presence of the second element manifests moral turpitude. In People vs. Atty. Fe Tuanda20 we held that a
conviction for violation of B.P. BIg. 22 "imports deceit" and "certainly relates to and affects the good moral
character of a person.…"21 The effects of the issuance of a worthless check, as we held in the landmark case
of Lozano vs. Martinez,22 through Justice Pedro L. Yap, "transcends the private interests of the parties directly
involved in the transaction and touches the interests of the community at large. The mischief it creates is not only
a wrong to the payee or holder, but also an injury to the public" since the circulation of valueless commercial
papers "can very well pollute the channels of trade and commerce, injure the banking system and eventually hurt
the welfare of society and the public interest."23 Thus, paraphrasing Black's definition, a drawer who issues an
unfunded check deliberately reneges on his private duties he owes his fellow men or society in a manner contrary
to accepted and customary rule of right and duty, justice, honesty or good morals.

Petitioner contends that this Court's pronouncement in People v. Atty. Fe Tuanda,24 insofar as it states that
conviction under B.P. BIg. 22 involves moral turpitude, does not apply to him since he is not a lawyer.

This argument is erroneous.

In that case, the Court of Appeals affirmed Atty. Fe Tuanda's conviction for violation of B.P. BIg. 22 and, in addition,
suspended her from the practice of law pursuant to Sections 27 and 28 of Rule 138 of the Revised Rules of Court.
Her motion seeking the lifting of her suspension was denied by this Court on the ground that the said offense
involves moral turpitude. There we said in part:

"We should add that the crimes of which respondent was convicted also import deceit and violation of her
attorney's oath and the Code of Professional Responsibility, under both of which she was bound to 'obey the laws
of the land.' Conviction of a crime involving moral turpitude might not (as in the instant case, violation of B.P. Blg.
22 does not) relate to the exercise of the profession of a lawyer; however, it certainly relates to and affects the
good moral character of a person convicted of such offense. x x x."25(Emphasis ours)

Clearly, in Tuanda, this Court did not make a distinction whether the offender is a lawyer or a non-lawyer. Nor did
it declare that such offense constitutes moral turpitude when committed by a member of the Bar but is not so
when committed by a non-member.

We cannot go along with petitioner's contention that this Court's ruling in Tuanda has been abandoned or
modified in the recent case of Rosa Lim vs. People of the Philippines,26 which reiterated the ruling in Vaca vs.
Court of Appeals.27 In these two latter cases, the penalty of imprisonment imposed on the accused for violation of
B.P. BIg. 22 was deleted by this Court. Only a fine was imposed. Petitioner insists that with the deletion of the
prison sentence, the offense no longer involves moral turpitude. We made no such pronouncement. This is what
we said in Rosa Lim:

"In Vaca v. Court of Appeals, we held that in determining the penalty to be imposed for violation of B.P. Blg. 22,
the philosophy underlying the Indeterminate Sentence Law applies. The philosophy is to redeem valuable human
material, and to prevent unnecessary deprivation of personal liberty and economic usefulness with due regard to
the protection of the social order. There we deleted the prison sentence imposed on petitioners. We imposed on
them only a fine double the amount of the check issued. We considered the fact that petitioners brought the
appeal, believing in good faith, that no violation of B.P. Blg. 22 was committed, 'otherwise, they would have simply
accepted the judgment of the trial court and applied for probation to evade prison term.' We do the same here.
We believe such would best serve the ends of criminal justice."

In fine, we find no grave abuse of discretion committed by respondent COMELEC in issuing the assailed
Resolutions.

WHEREFORE, the petition is DISMISSED. Costs against petitioner.1âwphi1.nêt

SO ORDERED.

SECTION 12 - Disqualification
A.M. No. 3360 January 30, 1990

PEOPLE OF THE PHILIPPINES, complainant

vs.
ATTY. FE T. TUANDA, respondent.

PER CURIAM:

In a Motion to Lift Order of Suspension dated 12 July 1989, respondent Fe T. Tuanda, a member of the Philippine
Bar, asks this Court to lift the suspension from the practice of law imposed upon her by a decision of the Court of
Appeals dated 17 October 1988 in C.A.-G.R. CR No. 05093.
On 17 December 1983, respondent received from one Herminia A. Marquez several pieces of jewelry, with a total
stated value of P36,000.00, for sale on a commission basis, with the condition that the respondent would turn over
the sales proceeds and return the unsold items to Ms. Marquez on or before 14 February 1984. Sometime in
February 1984, respondent, instead of returning the unsold pieces of jewelry which then amounted to
approximately P26,250.00, issued three checks: (a) a check dated 16 February 1984 for the amount of P5,400.00;
(b) a check dated 23 February 1984 also for the amount of P5,400.00; and (c) a check dated 25 February 1984 for
the amount of P15,450.00. Upon presentment for payment within ninety (90) days after their issuance, all three (3)
checks were dishonored by the drawee bank, Traders Royal Bank, for insufficiency of funds. Notwithstanding
receipt of the notice of dishonor, respondent made no arrangements with the bank concerning the honoring of
checks which had bounced and made no effort to settle her obligations to Ms. Marquez.

Consequently, four (4) informations were filed against respondent with the Regional Trial Court of Manila: (a) one
for estafa, docketed as Criminal Case No. 85-38358; and (b) three (3) for violation of B.P. Blg. 22, docketed
respectively as Criminal Cases Nos. 85-38359, 85-38360 and 85-38361. In due time, after trial, the trial court
rendered a decision dated 25 August 1987 which:

(a) acquitted respondent of the charge of estafa; and

(b) convicted respondent of violation of B.P. Blg. 22 in all three (3) cases, and sentenced respondent to pay a fine
of P6,000.00, with subsidiary imprisonment in case of insolvency and to indemnify the complainant in the amount
of P5,400.00 in Criminal Case No. 8538359;

to pay a fine of P 6,000.00, with subsidiary imprisonment in case of insolvency and to indemnify the complainant in
the amount of P5,400.00, in Criminal Case No. 85-38360; and

to pay a fine of P16,000.00, with subsidiary imprisonment in case of insolvency, and to indemnify the complainant
in the amount of P15,450.00, in Criminal Case No. 85-38361, and to pay the costs in all three (3) cases.

On appeal, the Court of Appeals in C.A.-G.R. CR No. 05093 affirmed in toto the decision of the trial court but, in
addition, suspended respondent Tuanda from the practice of law. The pertinent portion of the decision read as
follows:

For reasons above stated and finding the evidence sufficient to sustain the conviction, the judgment is hereby
AFFIRMED subject to this modification.

It appearing from the records that the accused Fe Tuanda is a member of the Bar, and the offense for (sic) which
she is found guilty involved moral turpitude, she is hereby ordered suspended from the practice of law and shall not
practice her profession until further action from the Supreme Court, in accordance with Sections 27 and 28 of Rule
138 of the Rules of Court. A copy of this decision must be forwarded to the Supreme Court as required by Section 29
of the same Rule.

SO ORDERED. 1

On 16 December 1988, respondent filed a Notice of Appeal with the Court of Appeals. The Court of Appeals, in a
Resolution dated 9 January 1989, noted respondent's Notice of Appeal and advised her "to address her Notice of
Appeal to the Honorable Supreme Court, the proper forum." On 1 February 1989, respondent filed with this Court
a Notice of Appeal.

In a Resolution dated 31 May 1989, the Supreme Court noted without action respondent's Notice of Appeal and
declared that the Court of Appeals' decision of 17 October 1988 had become final and executory upon expiration
of the period for filing a petition for review on certiorari on 16 December 1988. In that Resolution, the Court found
that respondent had lost her right to appeal by certiorari when she posted with this Court a Notice of Appeal
instead of filing a petition for review on certiorari under Section 1, Rule 45 of the Revised Rules of Court within the
reglementary period.

In the instant Motion to Lift Order of Suspension, respondent states:

that suspension from the practice of law is indeed a harsh if not a not painful penalty aggravating the lower court's
penalty of fine considering that accused-appellant's action on the case during the trial on the merits at the lower
court has always been motivated purely by sincere belief that she is innocent of the offense charged nor of the
intention to cause damage to the herein plaintiff-appellee.

We read the above statement as a claim by the respondent that, she had not violated her oath as a member of the
Philippine Bar upon the ground that when she issued the checks which bounced, she did not intend to cause
damage to complainant Ms. Marquez.

The Court affirms the suspension from the practice of law imposed by the Court of Appeals upon respondent
Tuanda. The Court of Appeals correctly ruled that "the offense [of] which she is found guilty involved moral
turpitude." We should add that violation of B.P. Blg. 22 is a serious criminal offense which deleteriously affects
public interest and public order. In Lozano v. Martinez,2 the Court explained the nature of the offense of violation
of B.P. Blg. 22 in the following terms:

xxx xxx xxx

The gravamen of the offense punished by B.P. Blg. 22 is the act of making and issuing a worthless check or a check
that is dishonored upon its presentation for payment. . . . The thrust of the law is to prohibit under pain of penal
sanctions, the making of worthless checks and putting them in circulation. Because of its deleterious effects on the
public interest, the practice is prescribed by the law. The law punishes the act not as an offense against property
but an offense against public order.

xxx xxx xxx

The effects of the issuance of a worthless check transcends the private interests of the parties directly involved in
the transaction and touches the interests of the community at large. The mischief it creates is not only a wrong to
the payee or holder, but also an injury to the public. The harmful practice of putting valueless commercial papers in
circulation, multiplied a thousandfold, can very well pollute the channels of trade and commerce, injure the
banking system and eventually hurt the welfare of society and the public interest. 3(Italics supplied)

Respondent was thus correctly suspended from the practice of law because she had been convicted of crimes
involving moral turpitude. Sections 27 and 28 of Rule 138 of the Revised Rules of Court provide as follows:

Sec. 27. Attorneys renewed or suspended by Supreme Court on what grounds. A member of the bar may be
removed or suspended from his office as attorney by the Supreme Court of any deceit, malpractice, or other gross
misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral
turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a wilful
disobedience of any lawful order of a superior court, or for corruptly or wilfully appearing as an attorney for a
party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either
personally or through paid agents or brokers, constitutes malpractice. (Italics supplied)

Sec. 28. Suspension of attorney by the Court of Appeals or a Court of First Instance. — The Court of Appeals or a
Court of First Instance may suspend an attorney from practice for any of the causes named in the last preceding
section, and after such suspension such attorney shall not practice his profession until further action of the
Supreme Court in the premises. (Italics supplied)
We should add that the crimes of which respondent was convicted also import deceit and violation of her
attorney's oath and the Code of Professional Responsibility under both of which she was bound to "obey the laws
of the land." Conviction of a crime involving moral turpitude might not (as in the instant case, violation of B.P. Blg.
22 does not) relate to the exercise of the profession of a lawyer; however, it certainly relates to and affects the
good moral character of a person convicted of such offense. In Melendrez v. Decena, 4 this Court stressed that:

the nature of the office of an attorney at law requires that she shall be a person of good moral
character.1âwphi1 This qualification is not only a condition precedent to an admission to the practice of law; its
continued possession is also essential for remaining in the practice of law. 5

ACCORDINGLY, the Court Resolved to DENY the Motion to Lift Order of Suspension. Respondent shall remain
suspended from the practice of law until further orders from this Court. A copy of this Resolution shall be forwarded
to the Bar Confidant and to the Integrated Bar of the Philippines and spread on the record of respondent.

SECTION 22 – Special Election

TOLENTINO v. COMELEC
GR 1488334 (01/21/04)
Facts:
 Pres. GMA, after her succession to the presidency in 2001, nominated Senator Guingona as Vice-
President, thus, leaving a vacancy in the Senate. The Senate passed Res. 84 calling on COMELEC to fill
the said vacancy through a special election to be held SIMULTANEOUSLY with the regular elections
on May the same year. 12 senators each with a 6-yr term were to be elected. Res. 84 provided that
the candidate with the 13th highest number of votes shall serve for the unexpired term of former Sen.
Guingona (3 years).
 Gregorio Honasan ranked 13th in the polls. COMELEC issued Res. 01-005 provisionally proclaiming
the 12 senators (with 6-yr terms) and the 13th senator (for the unexpired term).
 Petitioners (Tolentino and Mojica) filed a petition for prohibition against COMELEC, enjoining them
from the final proclamation the 13th senator, and prayed for the nullification of Res. 01-005.
Issues:
1. Procedural: WON petition is actually for quo warrantoi to be decided by the Senate
Electoral tribunal (and not the SC)
2. On the merits: WON the special election was held validly:
a. WON Comelec’s failure to give notice as to the time of the special election negate the
calling of said election
b. WON Comelec’s failure to give notice of office to be filled and the manner of
determining the winner misled voters
c. WON separate canvassing and documentation for the special election was required
Held:
1. No. The petitioner does not seek to determine Honasan’s right in the exercise of his office in the
Senate. What the petitioners allege is COMELEC’s failure to comply with certain requirements
pertaining to the conduct of the special election. Hence, the court has jurisdiction.
2. Yes. Special election was held validly. Hence, petition has no merit.
a. No. Sec. 2 of RA 6645 (which was passed to implement art 6, sec. 9 of the constitution),
EXPRESSLY PROVIDES that in case of a vacancy in the Senate, the special election shall be held
simultaneously with the next succeeding regular election. In a special election, the rule is that if
a statute expressly provides that an election to fill the vacancy shall be held at the next regular
election, the statute FIXES the date, hence, the election is NOT INVALIDATED by the fact that the
body charged by law with the duty (in this case, COMELEC) failed to do so. (as opposed to if the
law does not fix the time and place but empowers some authority to fix those, the statutory
provision on the giving of notice is considered mandatory and failure to do so will make election
 void) The law then charges the voters with knowledge of the statutory notice and COMELEC’s
failure to give additional notice does not negate the election.
b. No. The test in determining the validity of a special election in relation to the failure to give
notice is whether the lack of notice resulted in misleading a sufficient number of voters. The
petitioners were not able to prove that COMELEC’s failure to give the notice misled a sufficient
number of voters as would change the result of the vote.
c. No. No such requirements exist. What is mandatory under RA 6645 is for COMELEC to fix the
date if necessary and state the office/s to be voted for. The method adopted by COMELEC merely
implemented RA No.84 that “the senatorial candidate garnering the 13 th highest number of votes
shall serve only for the unexpired term of former Sen. Guingona” (an amendment introduced by
Sen. Roco)
“WHEREFORE, we DIMISS the petition for lack of merit. So ordered.” (Note however, that SC reminded
COMELEC to comply strictly with all the requirements under applicable laws relative to the conduct of elections)

i
A quo warranto proceeding is one that determines the right of a public officer in the exercise of his office

SECTION 37 – BARANGAY ELECTION (Substitution of Candidate)

PETRONILA S. RULLODA, Petitioner, vs. COMMISSION ON ELECTIONS (COMELEC)and others

G. R. No. 154198 - January 20, 2003
Ponente: YNARES-SANTIAGO, J.

FACTS: In the barangay elections of July 15, 2002, Romeo N. Rulloda and Remegio L. Placido were the contending
candidates for Barangay Chairman of Sto. Tomas, San Jacinto, Pangasinan. On June 22, 2002, Romeo suffered a
heart attack and passed away.

His widow, petitioner Petronila "Betty" wrote a letter to the Commission on Elections seeking permission to run as
candidate for Barangay Chairman. Petitioners request was supported by the Appeal-Petition containing several
signatures of people purporting to be members of the electorate of Barangay Sto. Tomas.

On July 14, 2002, Election Officer Ludivico L. Asuncion issued a directive to the Chairman and Members of the
Barangay Board of Canvassers: read the same as it is written but add the words "NOT COUNTED" like "BETTY NOT
COUNTED" or "RULLODA NOT COUNTED". Petitioner garnered 516 votes while respondent Remegio Placido
received 290 votes. Despite this, the Board of Canvassers proclaimed Placido as the Barangay Chairman.

Petitioner learned that the Commission issued Resolution No. 4801. Section 9 of the same – “There shall be no
substitution of candidates for barangay and sangguniang kabataan officials”. Petitioner filed the instant petition
for certiorari, seeking to annul Section 9 of Resolution No. 4801 and Resolution No. 5217.

ISSUE: WON substitiion is allowed in barangay SK elections.

RULING: the instant petition is GRANTED. The assailed Resolution No. 5217 of the Commission on Elections,
insofar as it denied due course to petitioners certificate of candidacy, is declared NULL and VOID. The
proclamation of respondent Remegio L. Placido as Barangay Chairman is SET ASIDE, and the Board of Canvassers is
ORDERED to proclaim petitioner as the duly elected Barangay Chairman.

RD: Election means the choice or selection of candidates to public office by popular vote; embodiment of the
popular will, the expression of the sovereign power of the people.

Respondents base their argument on Section 77 of the Omnibus Elections Code on Candidates in case of death,
disqualification or withdrawal of another. Private respondent argues that inasmuch as the barangay election is
non-partisan, there can be no substitution because there is no political party from which to designate the
substitute.
However, it is well-settled that in case of doubt, political laws must be so construed as to give life and spirit to the
popular mandate freely expressed through the ballot. Contrary to respondents claim, the absence of a specific
provision governing substitution of candidates in barangay elections can not be inferred as a prohibition against
said substitution.

SECTION 52 – Power and Functions

G.R. No. 186201 October 9, 2009

CARMELINDA C. BARRO, Petitioner,

vs.
THE COMMISSION ON ELECTIONS (FIRST DIVISION); HON. DELIA P. NOEL-BERTULFO, in her capacity as Presiding
Judge of the Municipal Trial Court, Palompon, Leyte; and ELPEDIO P. CONTINEDAS, JR.,Respondents.

DECISION

PERALTA, J.:

This is a petition for certiorari1 alleging that the First Division of the Commission on Elections (COMELEC)
committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the Orders dated
November 25, 2008 and January 9, 2009. The Order 2 dated November 25, 2008 dismissed petitioner’s appeal for
failure to pay the appeal fee prescribed by the COMELEC Rules of Procedure within the reglementary period. The
Order3 dated January 9, 2009 denied petitioner’s motion for reconsideration.

The facts are as follows:

Petitioner Carmelinda C. Barro and private respondent Elpedio P. Continedas, Jr. were candidates for Punong
Barangay of Barangay Plaridel, Palompon, Leyte during the October 29, 2007
synchronized Barangay and Sangguniang Kabataan Elections. Petitioner garnered 150 votes, while respondent
garnered 149 votes. The Barangay Board of Canvassers proclaimed petitioner as the duly elected Punong
Barangay, winning by a margin of only one vote.

On November 5, 2007, private respondent filed an election protest before the Municipal Trial Court of Palompon,
Leyte (trial court), impugning the result of the canvass in two precincts of the barangay.

After the revision of ballots, the trial court found that petitioner and respondent both garnered 151 votes.

In its Decision4 dated May 5, 2008, the trial court held:

In sum, the Protestant is credited with three (3) votes and the Protestee with two (2) votes of the contested votes.

The three (3) credited votes added to the 148 votes of the protestant equals 151 votes. The two (2) credited votes
added to the 149 votes of the protestee equals 151 votes. The protestant and the protestee, therefore, received
the same number of votes.

It appearing that the Protestant and the Protestee received the same number of votes for the position of Barangay
Chairman of Brgy. Plaridel, Palompon, Leyte, there shall be a drawing of lots and the party favored by luck shall be
proclaimed as the duly-elected Barangay Chairman of Barangay Plaridel, Palompon, Leyte.5
On May 13, 2008, petitioner filed a Notice of Appeal6 with the trial court and she stated in her petition that she
also paid the appeal fee required under Section 9, Rule 14 of the Rules of Procedure in Election Contests Before
the Courts Involving Elective Municipal and Barangay Officials (A.M. No. 07-4-15-SC).7 Thereafter, the records of
the case were forwarded to the COMELEC.

On November 25, 2008, the First Division of the COMELEC issued an Order dismissing petitioner’s appeal for failure
to pay the appeal fee, thus:

Pursuant to Sections 3 and 4, Rule 40 of the COMELEC Rules of Procedure which provide for the payment of appeal
fee in the amount of ₱3,000.00 within the period to file the notice of appeal, and Section 9 (a), Rule 22 of the same
Rules, which provides that failure to pay the correct appeal fee is a ground for the dismissal of the appeal, the
Commission (First Division) RESOLVED as it hereby RESOLVES to DISMISS the instant appeal for Protestee-
AppeIlant's failure to pay the appeal fee as prescribed by the Comelec Rules of Procedure within the five (5)-day
reglementary period.8

On December 15, 2008, petitioner filed a Motion for Reconsideration 9 of the Order dated November 25, 2008. On
the same date, she also posted Postal Money Order Nos. A0820039317; B0810040373 and J1350301774 in the
total sum of ₱3,200.00 payable to the Cash Division of the COMELEC to cover the appeal fee.

Petitioner’s motion for reconsideration was denied by the First Division of the COMELEC in its Order dated January
9, 2009, thus:

Protestee-Appellant's "Motion for Reconsideration" filed thru registered mail on 15 December 2008 and received
on 23 December 2008, seeking reconsideration of the Commission's (First Division) Order dated 25 November
2008, is hereby DENIED for failure of the movant to pay the necessary motion fees under Sec. 7 (f), Rule 40 of the
Comelec Rules of Procedure as amended by Comelec Resolution No. 02-0130. The Judicial Records Division-ECAD,
this Commission, is hereby directed to return to the protestee-appellant the Postal Money Order Nos.
A0820039317 in the amount of two thousand pesos (₱2,000.00); B0810040373 in the amount of one thousand
pesos (P1,000.00) and J1350301774 in the amount of two hundred pesos (₱200.00) representing his belated
payment of appeal fee.10

On February 19, 2009, petitioner filed this petition raising the following issues:

1. WHETHER OR NOT THE [FIRST DIVISION OF THE COMELEC] COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DISMISSING THE APPEAL.

2. WHETHER OR NOT THE [FIRST DIVISION OF THE COMELEC] COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DENYING THE MOTION FOR RECONSIDERATION FILED BY
PETITIONER.

3. WHETHER OR NOT THE [FIRST DIVISION OF THE COMELEC] COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ACTING ON THE MOTION FOR RECONSIDERATION WITHOUT
ELEVATING THE SAME TO THE COMELEC EN BANC.11

The first issue is whether or not the First Division of the COMELEC gravely abused its discretion in dismissing
petitioner’s appeal.

Grave abuse of discretion implies a capricious and whimsical exercise of judgment amounting to lack of jurisdiction
or an arbitrary and despotic exercise of power because of passion or personal hostility.12 The grave abuse of
discretion must be so patent and gross as to amount to an evasion or refusal to perform a duty enjoined by law. 13
The Court notes that in petitioner’s Notice of Appeal, 14 she manifested payment of the appeal fees and other
lawful fees required for the appeal per Official Receipt Nos. 7719538 and 7719488. However, the receipts were not
attached to the record of the case. In her Petition, petitioner stated that when she filed her Notice of Appeal on
May 13, 2008, she also paid the appeal fee required under Section 9, Rule 14 of A.M. No. 07-4-15-SC.15 In her
Reply,16petitioner also stated that she relied on the provision of Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-
SC,17 which took effect on May 15, 2007, and that she believed in good faith that the said new Rules of Procedure
repealed the COMELEC Rules.

Based on petitioner’s pleadings and the fact that the trial court gave due course to petitioner’s appeal, it may be
presumed that petitioner paid the appeal fee of ₱1,000.00 to the trial court simultaneously with the filing of the
Notice of Appeal, despite absence of the receipt showing payment of the appeal fee of ₱1,000.00.

Petitioner contends in her Reply18 that the recent case of Jerry B. Aguilar v. Commission on Elections, et
al.,19applies to her case. The Court agrees with petitioner.

In Aguilar, petitioner Aguilar won as barangay chairman in the October 29, 2007 barangay elections. An election
protest was filed against him with the municipal trial court. The municipal trial court found that Aguilar lost by a
margin of one vote; hence, his proclamation was annulled. On April 21, 2008, Aguilar filed a Notice of Appeal and
paid the appeal fee of ₱1,000.00 to the municipal trial court in accordance with A.M. No. 07-4-15-SC. The First
Division of the COMELEC dismissed his appeal pursuant to Section 9 (a), Rule 22 of the COMELEC Rules of
Procedure for non-payment of the appeal fee of ₱3,000.00 as required in Sections 3 and 4, Rule 40 of the same
Rules. His first and second motions for reconsideration were denied by the First Division of the COMELEC. He filed
a petition for certiorari with this Court, which held:

xxxx

With the promulgation of A.M. No. 07-4-15-SC, the previous rule that the appeal is perfected only upon the full
payment of the appeal fee, now pegged at ₱3,200.00, to the COMELEC Cash Division within the period to appeal,
as stated in the COMELEC Rules of Procedure, as amended, no longer applies.

It thus became necessary for the COMELEC to clarify the procedural rules on the payment of appeal fees. For this
purpose, the COMELEC issued on July 15, 2008, Resolution No. 8486, which the Court takes judicial notice of.

xxxx

x x x The appeal to the COMELEC of the trial court's decision in election contests involving municipal and barangay
officials is perfected upon the filing of the notice of appeal and the payment of the ₱1,000.00 appeal fee to the
court that rendered the decision within the five-day reglementary period. The non-payment or the insufficient
payment of the additional appeal fee of ₱3,200.00 to the COMELEC Cash Division, in accordance with Rule 40,
Section 3 of the COMELEC Rules of Procedure, as amended, does not affect the perfection of the appeal and does
not result in outright or ipso facto dismissal of the appeal. Following, Rule 22, Section 9 (a) of the COMELEC Rules,
the appeal may be dismissed. And pursuant to Rule 40, Section 18 of the same rules, if the fees are not paid, the
COMELEC may refuse to take action thereon until they are paid and may dismiss the action or the proceeding. In
such a situation, the COMELEC is merely given the discretion to dismiss the appeal or not.

Accordingly, in the instant case, the COMELEC First Division, may dismiss petitioner's appeal, as it in fact did, for
petitioner's failure to pay the ₱3,200.00 appeal fee.

Be that as it may, the Court still finds that the COMELEC First Division gravely abused its discretion in issuing the
order dismissing petitioner's appeal. The Court notes that the notice of appeal and the ₱1,000.00 appeal fee were,
respectively, filed and paid with the MTC of Kapatagan, Lanao del Norte on April 21, 2008. On that date, the
petitioner's appeal was deemed perfected. COMELEC issued Resolution No. 8486 clarifying the rule on the
payment of appeal fees only on July 15, 2008, or almost three months after the appeal was perfected. Yet, on July
31, 2008, or barely two weeks after the issuance of Resolution No. 8486, the COMELEC First Division dismissed
petitioner's appeal for non-payment to the COMELEC Cash Division of the additional ₱3,200.00 appeal fee.

Considering that petitioner filed his appeal months before the clarificatory resolution on appeal fees, petitioner's
appeal should not be unjustly prejudiced by COMELEC Resolution No. 8486. Fairness and prudence dictate that the
COMELEC First Division should have first directed petitioner to pay the additional appeal fee in accordance with
the clarificatory resolution, and if the latter should refuse to comply, then, and only then, dismiss the appeal.
Instead, the COMELEC First Division hastily dismissed the appeal on the strength of the recently promulgated
clarificatory resolution — which had taken effect only a few days earlier. This unseemly haste is an invitation to
outrage.

In this case, the appeal to the COMELEC was perfected when petitioner filed her Notice of Appeal and paid the
appeal fee of ₱1,000.00 on May 13, 2008, which was two months before the COMELEC issued Resolution No.
8486,20 clarifying the rule on the payment of appeal fees. As stated in Aguilar, fairness and prudence dictate that
the First Division of the COMELEC should have first directed petitioner to pay the additional appeal fee of
₱3,200.00 in accordance with the clarificatory resolution; and if petitioner refused to comply, only then should the
appeal be dismissed. The First Division of the COMELEC should have been more cautious in dismissing petitioner’s
appeal on the mere technicality of non-payment of the additional appeal fee of ₱3,200.00 given the public interest
involved in election cases.21

In view of the foregoing, the Court finds that the First Division of the COMELEC gravely abused its discretion in
issuing the Order dated November 25, 2008, dismissing petitioner’s appeal. The case is remanded to the First
Division of the COMELEC for disposition of the appeal in accordance with this decision, subject to the presentation
by petitioner of the receipt evidencing payment of the appeal fee of ₱1,000.00 as required under Section 9, Rule
14 of A. M. No. 07-4-15-SC.

It must be stated, however, that for notices of appeal filed after the promulgation on July 27, 2009 of Divinagracia
v. Commission on Elections,22 errors in the matter of non-payment or incomplete payment of the two appeal fees
in election cases are no longer excusable.

The second and third issues shall be discussed jointly.

Petitioner contends that the First Division of the COMELEC committed grave abuse of discretion amounting to lack
or excess of jurisdiction in acting on the motion for reconsideration without elevating the same to the COMELEC en
banc, and in denying the motion for reconsideration.

The contention is meritorious.

It is settled that under Section 7, Article IX-A of the Constitution,23 what may be brought to this Court on certiorari
is the decision, order or ruling of the COMELEC en banc. However, this rule should not apply when a division of the
COMELEC arrogates unto itself and deprives the en banc of the authority to rule on a motion for reconsideration,
like in this case.24

Section 3, Article IX-C of the Constitution provides for the procedure for the resolution of election cases by the
COMELEC, thus:

Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of
procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such
election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall
be decided by the Commission en banc.
The constitutional provision is reflected in Sections 5 and 6, Rule 19 of the COMELEC Rules of Procedure as follows:

Sec. 5. How Motion for Reconsideration Disposed of. — Upon the filing of a motion to reconsider a decision,
resolution, order or ruling of a Division, the Clerk of Court concerned shall, within twenty-four (24) hours from the
filing thereof, notify the Presiding Commissioner. The latter shall within two (2) days thereafter certify the case to
the Commission en banc.1avvph!1

Sec. 6. Duty of Clerk of Court of Commission to Calendar Motion for Reconsideration. — The Clerk of Court
concerned shall calendar the motion for reconsideration for the resolution of the Commission en banc within ten
(10) days from the certification thereof.

In this case, the First Division of the COMELEC violated the cited provisions of the Constitution and the COMELEC
Rules of Procedure when it resolved petitioner's motion for reconsideration of its final Order dated November 25,
2008, which dismissed petitioner’s appeal. By arrogating unto itself a power constitutionally lodged in the
Commission en banc, the First Division of the COMELEC exercised judgment in excess of, or without,
jurisdiction.25Hence, the Order issued by the First Division of the COMELEC dated January 9, 2009, denying
petitioner’s motion for reconsideration, is null and void.

Petitioner stated in her Reply26 that on April 1, 2009, the First Division of the COMELEC issued an Order declaring
the Order dated November 25, 2008 as final and executory, and ordering the issuance of an Entry of Judgment. On
April 1, 2009, an Entry of Judgment was issued by the Electoral Contests Adjudication Department.

WHEREFORE, the petition is GRANTED. The Orders dated November 25, 2008 and January 9, 2009 by the First
Division of the COMELEC, and the Entry of Judgment issued on April 1, 2009 by the Electoral Contests Adjudication
Department are ANNULLED and SET ASIDE. The case is REMANDED to the First Division of the Commission on
Elections for disposition in accordance with this Decision.

No costs.

SO ORDERED.

SECTION 52 – Powers and Functions

G.R. No. 181377 April 24, 2009

RODANTE MARCOLETA, SERGIO MANZANA, RENATO CABLING AND MIGUELITO BAJAS, Petitioners,
vs.
COMMISSION ON ELECTIONS AND DIOGENES OSABEL, Respondents.

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

G.R. No. 181726 April 24, 2009

ALAGAD PARTY-LIST, represented by DIOGENES S. OSABEL, president, Petitioner,

vs.
COMMISSION ON ELECTIONS, ALBERTO M. MALVAR, RODANTE D. MARCOLETA, SERGIO C. MANZANA, RENATO
S. CABLING AND MIGUELITO C. BAJAS, Respondents.

DECISION

CARPIO-MORALES, J.:
When the party-list group Alagad first won a seat in the House of Representatives in 1998, Diogenes S. Osabel
(Osabel) sat as the party’s representative in Congress. In 2004, when the party again won one seat, Rodante D.
Marcoleta (Marcoleta) sat as Alagad’s representative.

Due to infighting within Alagad’s ranks, however, Osabel and Marcoleta parted ways, each one claiming to
represent the party’s constituency. For the 2007 National and Local Elections, the warring factions of Osabel and
Marcoleta each filed a separate list of nominees for Alagad at the Commission on Elections (Comelec).

With Alagad again winning a part-list seat in the House of Representatives, the Marcoleta and Osabel blocs
contested the right to represent the party in the 14th Congress. 1 Osabel, purportedly the bona fide president of
Alagad, sought the cancellation of the certificates of nomination of the Marcoleta group. 2

By Omnibus Resolution3 of July 18, 2007, the Comelec’s First Division, then composed of Commissioners
Resurreccion Borra and Romeo Brawner, resolved the dispute in favor of Osabel, disposing as follows:

WHEREFORE, in view of the foregoing, the Commission (First Division) GRANTS the Petition in SPA No. 07-020
finding it imbued with merit. The Certificate of Nomination filed by ALAGAD represented by ALBERTO M. MALVAR
on January 15, 2007 and subject of SPA No. 07-020 is hereby SET ASIDE. The Manifestation of Intent to Participate
in the Party-List System of Representation submitted by ALAGAD represented by its legitimate president
DIOGENES S. OSABEL on January 25, 2007, and subject of SPP No. 07-023 is hereby ADMITTED. The Manifestation
of Intent to Participate in the Party-List System of Representation submitted by ALAGAD represented by ALBERTO
M. MALVAR on January 15, 2007 and subject of SPP No. 07-003 is DENIED DUE COURSE. (Emphasis in the original)

The controversy was then elevated by the Marcoleta group to the Comelec En Banc which, by Resolution 4 of
November 6, 2007, reversed the First Division’s Omnibus Resolution and reinstated the certificates of nomination
of the Marcoleta group. In the voting, however, there were only two (2) commissioners who concurred in the
Resolution while three (3) commissioners dissented.5

For thus failing to muster the required majority voting, the Comelec En Banc ordered a rehearing of the
controversy on November 20, 2007.6

From the records,7 it appears that what was taken up during the scheduled November 20, 2007 hearing was the
issue of "whether the [Comelec] could hear these cases on the rehearing aspect." 8

The First Division’s Omnibus Resolution in favor of Osabel was eventually affirmed by the Comelec En Banc by
Resolution of February 5, 2008, viz:9

During said rehearing, both parties agreed to file their simultaneous memoranda and thereafter to submit these
cases for resolution.

The Commission received their respective memoranda on December 3, 2007. (Emphasis and underscoring
supplied)

x x x x.

It appearing that the votes of the members of the Commission are still the same, or the necessary majority cannot
be had, pursuant to Sec. 6, Rule 18, Comelec Rules of Procedure which reads:

x x x x.

the Resolution of the First Division is hereby AFFIRMED.10 (Emphasis in the original; underscoring supplied)
On February 12, 2008, Marcoleta filed an ex parte motion to rectify 11 the Comelec En Banc February 5, 2008
Resolution, contending that it inadvertently therein mentioned that there was a rehearing undertaken on
November 20, 2007 when in fact there was none as the matter taken up on said date actually delved on the
propriety of a rehearing; and that no memorandum from either of the parties was submitted on December 3,
2007.

By Order of February 12, 2008,12 Commissioner Romeo Brawner, acting in his capacity as acting chairman of the
Comelec, suspended until further orders the implementation of the Comelec First Division February 5, 2008
Omnibus Resolution.

Subsequently, by Order of February 26, 2008,13 the Comelec En Banc acknowledged that no rehearing had yet
been undertaken and reiterated the earlier order of suspension of the February 5, 2009 First Division Omnibus
Resolution. The Comelec En Banc, also therein resolving the prejudicial question raised by Osabel on whether
there was a necessity of a rehearing, held in the affirmative, reasoning that:

x x x x. The voting in the resolution disposing of the motion for reconsideration on the July 18, 2007 resolution of
the First Division which yielded the 2-3 voting resulted in the failure to obtain the required number of votes for the
pronouncement of a decision. Hence, a rehearing should be conducted x x x x.

A rehearing of the controversy between the parties was thereupon calendared for March 4, 2008. From the
records, it appears that the scheduled rehearing did not push through in view of the filing in the interim of the
present petitions by the contending parties.

In the above-captioned G.R. No. 181377 (the petition filed by the Marcoleta group on February 7, 2008),
petitioners fault the Comelec En Banc as follows:

a. The COMELEC en banc committed grave abuse of discretion amounting to lack or excess of jurisdiction when it
issued the February 5, 2008 Order without the benefit of a rehearing, in violation of Section 6, Rule 18 of the
COMELEC Rules of Procedure;

b. The COMELEC en banc committed grave abuse of discretion amounting to lack or excess of jurisdiction when it
affirmed the ruling of its First Division that Private Respondent Osabel did not resign his post as President of
Alagad;

c. The COMELEC en banc committed grave abuse of discretion amounting to lack or excess of jurisdiction when it
gave credence to the Minutes submitted by the Private Respondent, even though it was not approved by the
Secretary-General of the Party;

d. The COMELEC en banc committed grave abuse of discretion amounting to lack or excess of jurisdiction when it
did not consider the provision in the Party’s Constitution and By-Laws that limits the tenure of officers and
members of the Executive Committee to three (3) years.14

Meanwhile, G.R. No. 181726 filed on March 4, 2008 by Alagad, represented by Osabel, assails the suspension of
the effects of the Comelec First Division February 5, 2008 Resolution as well as the February 26, 2008 Order that
called for a rehearing.15

Alagad asserts that the Comelec should not have suspended the effects of the February 5, 2008 Resolution when,
on its face, the ex parte motion to rectify filed by Marcoleta suffered from lack of proof of service on the adverse
party and the requisite notice of hearing; instead, an order to comment on the motion should have been the
proper recourse of the Comelec.16
In further arguing against the rehearing order of the Comelec, petitioner Alagad invites the Court’s attention to the
earlier mentioned En Banc Resolution of November 6, 2007 (reinstating the certificates of nomination of the
Marcoleta group) where it appears that the Osabel group "secured a majority vote of the quorum: three (3) against
two (2) in a quorum of five commissioners, in spite the fact that Osabel is not the movant, and hence, not the party
required to secure a majority to reverse the First Division Omnibus Resolution." 17

By Resolution of March 11, 2008, the Court consolidated both petitions. 18

G.R. No. 181377 was filed on February 7, 2008 by the Marcoleta group before it filed on February 12, 2008 before
the Comelec the ex parte motion to rectify. In light of the filing of said motion as well as the positive action of the
Comelec in its Order of February 26, 2008 for a rehearing of the controversy, the petition had been rendered moot
and academic. More importantly, the extraordinary writ of certiorari, cannot be invoked when there is a plain,
adequate and speedy remedy in the ordinary course of law,19 as shown by petitioner’s recourse.

The Court now proceeds to resolve G.R. No. 181726 filed by Alagad. The twin issues to be determined are whether
the Comelec En Banc committed grave abuse of discretion in ordering a rehearing of the controversy; and in
suspending the implementation of the Order of February 5, 2008 for lack of rehearing.

The petition fails.

While at first impression, the November 6, 2007 Resolution of the Comelec En Banc seems to have affirmed the
First Division’s ruling, the said Resolution merely reflected the manner of voting of the Comelec members.

From the 2-3 voting, it is readily discerned that the Comelec En Banc cannot overturn the First Division on mere
two assenting votes. On the other hand, the same situation obtains in the case of the dissenters, there being a
shortage of one vote to sustain the First Division’s findings.

To break this legal stalemate, Section 6, Rule 18 of the Comelec Rules of Procedure provides that:

Sec. 6. Procedure if Opinion is Equally Divided.—When the Commission en banc is equally divided in opinion, or
the necessary majority cannot be had, the case shall be reheard, and if on rehearing no decision is reached, the
action or proceeding shall be dismissed if originally commenced in the Commission; in appealed cases, the
judgment or order appealed from shall stand affirmed; and in all incidental matters, the petition or motion shall be
denied. (Emphasis, italics and underscoring supplied)

Majority, in this case, means a vote of four members of the Comelec. The Court in Estrella v. Comelec20pronounced
that Section 5 (a)21 of Rule 3 of the Comelec Rules of Procedure and Section 7 of Article IX-A22 of the Constitution
require that a majority vote of all the members of the Comelec, and not only those who participated and took part
in the deliberations, is necessary for the pronouncement of a decision, resolution, order or ruling.

Alagad’s reasoning that a rehearing is unnecessary since it garnered "a majority vote of the quorum" does not thus
impress.

The Comelec, despite the obvious inclination of three commissioners to affirm the Resolution of the First Division,
cannot do away with a rehearing since its Rules clearly provide for such a proceeding for the body to have a
solicitous review of the controversy before it. A rehearing clearly presupposes the participation of the opposing
parties for the purpose of presenting additional evidence, if any, and further clarifying and amplifying their
arguments.23

To reiterate, neither the assenters nor dissenters can claim a majority in the En Banc Resolution of November 6,
2007. The Resolution served no more than a record of votes, lacking in legal effect despite its pronouncement of
reversal of the First Division Resolution. Accordingly, the Comelec did not commit any grave abuse of discretion in
ordering a rehearing.

The propriety of a rehearing now resolved, the issue of whether the Comelec committed grave abuse of discretion
in suspending the effects of its En Banc Order of February 5, 2008 for lack of a rehearing comes to the fore.

From the records as well as the admission of inadvertence on the part of the Comelec, there is likewise nothing
gravely abusive of the Comelec’s assailed action.

A certification24 from the Office of the Clerk of the Commission itself bolsters the assertion that the Comelec
committed an evident oversight, thus:

x x x [T]here is no calendar of hearing with respect to these particular cases between November 21, 2007 and
February 5, 2008.

For the most part, the Comelec was well within its authority to order a re-hearing, it having the inherent power to
amend or control its processes and orders before these become final and executory. 25 It can even proceed to issue
an order motu proprio to reconsider, recall or set aside an earlier resolution which is still under its control.26

The Comelec’s own Rules of Procedure authorize the body to "amend and control its processes and orders so as to
make them conformable to law and justice,"27 and even to suspend said Rules or any portion thereof "in the
interest of justice and in order to obtain speedy disposition of all matters pending before the Commission."28

Thus, the supposed lack of proof of service on the adverse party and lack of notice of hearing of Marcoleta’s ex
parte motion to rectify deserve little consideration in invalidating the Order of February 12, 2008. Moreover, that
Alagad even moved to execute the Comelec’s February 5, 2008 Order on the same day the ex parte motion to
rectify was filed (February 12, 2008)29 all the more justified the Comelec’s action.

The Comelec, confronted with a glaring procedural lapse, lost no time in rectifying its action by suspending the
effects of an earlier resolution and scheduling a mandatory rehearing. To be sure, this negates any indication of
grave abuse of discretion on its part in order to correct a lapse.

WHEREFORE, G.R. No. 181377 is DISMISSED for being moot. G.R. No. 181726 is likewise DISMISSED for lack of
merit.

Let the case be REMANDED to the Comelec En Banc for it to proceed with utmost dispatch with its intended
rehearing and render the appropriate decision on the case at the earliest opportunity.

No costs.

SO ORDERED.

SECTION 63 – RESIDENCY

G.R. No. 161434 March 3, 2004

MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR. vs.COMELEC, FPJ and VICTORINO X. FORNIER,

G.R. No. 161634 March 3, 2004

ZOILO ANTONIO VELEZ vs.FPJ

GR. No. 161824 March 3, 2004

VICTORINO X. FORNIER, vs. HON. COMMISSION ON ELECTIONS and FPJ

Facts:

Petitioners sought for respondent Poe’s disqualification in the presidential elections for having allegedly
misrepresented material facts in his (Poe’s) certificate of candidacy by claiming that he is a natural Filipino citizen
despite his parents both being foreigners. Comelec dismissed the petition, holding that Poe was a Filipino Citizen.
Petitioners assail the jurisdiction of the Comelec, contending that only the Supreme Court may resolve the basic
issue on the case under Article VII, Section 4, paragraph 7, of the 1987 Constitution.

Issue:

Whether or not it is the Supreme Court which had jurisdiction.

Whether or not Comelec committed grave abuse of discretion in holding that Poe was a Filipino citizen.

Ruling:

1.) The Supreme Court had no jurisdiction on questions regarding “qualification of a candidate” for the presidency
or vice-presidency before the elections are held.

“Rules of the Presidential Electoral Tribunal” in connection with Section 4, paragraph 7, of the 1987
Constitution, refers to “contests” relating to the election, returns and qualifications of the “President” or “Vice-
President”, of the Philippines which the Supreme Court may take cognizance, and not of “candidates” for President
or Vice-President before the elections.

2.) Comelec committed no grave abuse of discretion in holding Poe as a Filipino Citizen.

The 1935 Constitution on Citizenship, the prevailing fundamental law on respondent’s birth, provided that among
the citizens of the Philippines are “those whose fathers are citizens of the Philippines.”

Tracing respondent’s paternal lineage, his grandfather Lorenzo, as evidenced by the latter’s death certificate was
identified as a Filipino Citizen. His citizenship was also drawn from the presumption that having died in 1954 at the
age of 84, Lorenzo would have been born in 1870. In the absence of any other evidence, Lorenzo’s place of
residence upon his death in 1954 was presumed to be the place of residence prior his death, such that Lorenzo Pou
would have benefited from the “en masse Filipinization” that the Philippine Bill had effected in 1902. Being so,
Lorenzo’s citizenship would have extended to his son, Allan—respondent’s father.

Respondent, having been acknowledged as Allan’s son to Bessie, though an American citizen, was a Filipino citizen
by virtue of paternal filiation as evidenced by the respondent’s birth certificate. The 1935 Constitution on
citizenship did not make a distinction on the legitimacy or illegitimacy of the child, thus, the allegation of bigamous
marriage and the allegation that respondent was born only before the assailed marriage had no bearing on
respondent’s citizenship in view of the established paternal filiation evidenced by the public documents presented.

But while the totality of the evidence may not establish conclusively that respondent FPJ is a natural-born citizen
of the Philippines, the evidence on hand still would preponderate in his favor enough to hold that he cannot be
held guilty of having made a material misrepresentation in his certificate of candidacy in violation of Section 78, in
relation to Section 74 of the Omnibus Election Code.
SECTION 64 – Qualification for Senators

Romualdez-Marcos vs. COMELEC

FACTS:Imelda, a little over 8 years old, in or about 1938, established her domicile in Tacloban, Leyte where she
studied and graduated high school in the Holy Infant Academy from 1938 to 1949. She then pursued her college
degree, education, in St. Paul’s College now Divine Word University also in Tacloban. Subsequently, she taught in
Leyte Chinese School still in Tacloban. She went to manila during 1952 to work with her cousin, the late speaker
Daniel Romualdez in his office in the House of Representatives. In 1954, she married late President Ferdinand
Marcos when he was still a Congressman of Ilocos Norte and was registered there as a voter. When Pres. Marcos
was elected as Senator in 1959, they lived together in San Juan, Rizal where she registered as a voter. In 1965,
when Marcos won presidency, they lived in Malacanang Palace and registered as a voter in San Miguel Manila.
She served as member of the Batasang Pambansa and Governor of Metro Manila during 1978.

Imelda Romualdez-Marcos was running for the position of Representative of the First District of Leyte for the 1995
Elections. Cirilo Roy Montejo, the incumbent Representative of the First District of Leyte and also a candidate for
the same position, filed a “Petition for Cancellation and Disqualification" with the Commission on Elections alleging
that petitioner did not meet the constitutional requirement for residency. The petitioner, in an honest
misrepresentation, wrote seven months under residency, which she sought to rectify by adding the words "since
childhood" in her Amended/Corrected Certificate of Candidacy filed on March 29, 1995 and that "she has always
maintained Tacloban City as her domicile or residence. She arrived at the seven months residency due to the fact
that she became a resident of the Municipality of Tolosa in said months.

ISSUE: Whether petitioner has satisfied the 1year residency requirement to be eligible in running as representative
of the First District of Leyte.

HELD:Residence is used synonymously with domicile for election purposes. The court are in favor of a conclusion
supporting petitoner’s claim of legal residence or domicile in the First District of Leyte despite her own declaration
of 7 months residency in the district for the following reasons:

1. A minor follows domicile of her parents. Tacloban became Imelda’s domicile of origin by operation of law when
her father brought them to Leyte;

2. Domicile of origin is only lost when there is actual removal or change of domicile, a bona fide intention of
abandoning the former residence and establishing a new one, and acts which correspond with the purpose. In the
absence and concurrence of all these, domicile of origin should be deemed to continue.

3. A wife does not automatically gain the husband’s domicile because the term “residence” in Civil Law does not
mean the same thing in Political Law. When Imelda married late President Marcos in 1954, she kept her domicile
of origin and merely gained a new home and not domicilium necessarium.

4. Assuming that Imelda gained a new domicile after her marriage and acquired right to choose a new one only
after the death of Pres. Marcos, her actions upon returning to the country clearly indicated that she chose
Tacloban, her domicile of origin, as her domicile of choice. To add, petitioner even obtained her residence
certificate in 1992 in Tacloban, Leyte while living in her brother’s house, an act, which supports the domiciliary
intention clearly manifested. She even kept close ties by establishing residences in Tacloban, celebrating her
birthdays and other important milestones.

WHEREFORE, having determined that petitioner possesses the necessary residence qualifications to run for a seat
in the House of Representatives in the First District of Leyte, the COMELEC's questioned Resolutions dated April 24,
May 7, May 11, and May 25, 1995 are hereby SET ASIDE. Respondent COMELEC is hereby directed to order the
Provincial Board of Canvassers to proclaim petitioner as the duly elected Representative of the First District of
Leyte.

Aquino vs. COMELEC G.R. No. 120265, September 18, 1995

Facts: Petitioner Agapito Aquino filed his certificate of candidacy for the position of Representative for
the Second District of Makati City. Private respondents Move Makati, a duly registered political party,
and Mateo Bedon, Chairman of LAKAS-NUCD-UMDP of Brgy. Cembo, Makati City, filed a petition to
disqualify petitioner on the ground that the latter lacked the residence qualification as a candidate for
congressman which, under Sec. 6, Art. VI of the Constitution, should be for a period not less than 1 year
immediately preceding the elections.

Issue: Whether or not the petitioner lacked the residence qualification as a candidate for congressman
as mandated by Sec. 6, Art. VI of the Constitution

Held: In order that petitioner could qualify as a candidate for Representative of the Second District of
Makati City, he must prove that he has established not just residence but domicile of choice.

Petitioner, in his certificate of candidacy for the 1992 elections, indicated not only that he was a resident
of San Jose, Concepcion, Tarlac in 1992 but that he was a resident of the same for 52 years immediately
preceding that elections. At that time, his certificate indicated that he was also a registered voter of the
same district. His birth certificate places Concepcion, Tarlac as the birthplace of his parents. What stands
consistently clear and unassailable is that his domicile of origin of record up to the time of filing of his
most recent certificate of candidacy for the 1995 elections was Concepcion, Tarlac.

The intention not to establish a permanent home in Makati City is evident in his leasing a condominium
unit instead of buying one. While a lease contract may be indicative of petitioner’s intention to reside in
Makati City, it does not engender the kind of permanency required to prove abandonment of one’s
original domicile.

Petitioner’s assertion that he has transferred his domicile from Tarlac to Makati is a bare assertion which
is hardly supported by the facts. To successfully effect a change of domicile, petitioner must prove an
actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of
residence and establishing a new one and definite acts which correspond with the purpose. In the
absence of clear and positive proof, the domicile of origin should be deemed to continue.
JAPSON VS. COMELEC
Facts:

Ø Both petitioner Manuel B. Japzon (Japzon) and private respondent Jaime S. Ty (Ty) were candidates
for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, in the local elections
held on 14 May 2007.

Ø Japzon instituted SPA No. 07-568 by filing before the COMELEC a Petition[5] to disqualify and/or
cancel Ty's Certificate of Candidacy on the ground of material misrepresentation. Japzon averred in his
Petition that Ty was a former natural-born Filipino, having been born on 9 October 1943 in what was
then Pambujan Sur, Hernani Eastern Samar (now the Municipality of General Macarthur, Easter Samar)
to spouses Ang Chim Ty (a Chinese) and Crisanta Aranas Sumiguin (a Filipino).

Ø Ty eventually migrated to the United States of America (USA) and became a citizen thereof. Ty had
been residing in the USA for the last 25 years. When Ty filed his Certificate of Candidacy on 28 March
2007, he falsely represented therein that he was a resident of Barangay6, Poblacion, General Macarthur,
Eastern Samar, for one year before 14 May 2007, and was not a permanent resident or immigrant of any
foreign country.

Ø While Ty may have applied for the reacquisition of his Philippine citizenship, he never actually resided
in Barangay 6, Poblacion, General Macarthur, Eastern Samar, for a period of one year immediately
preceding the date of election as required under Section 39 of Republic Act No. 7160, otherwise known
as the Local Government Code of 1991

Ø Inspite of having reacquisition in his Philippine citizenship, Ty continued to make trips to the USA, the
most recent of which was on 31 October 2006 lasting until 20 January 2007.

Ø Ty already took his Oath of Allegiance to the Republic of the Philippines, he continued to comport
himself as an American citizen as proven by his travel records. He had also failed to renounce his foreign
citizenship as required by Republic Act No. 9225, otherwise known as the Citizenship Retention and
Reacquisition Act of 2003, or related laws.

Ø Japzon prayed for in his Petition that the COMELEC order the disqualification of Ty from running for
public office and the cancellation of the latter's Certificate of Candidacy.

Ø Ty admitted that he was a natural-born Filipino who went to the USA to work and subsequently
became a naturalized American citizen. Ty claimed, however, that prior to filing his Certificate of
Candidacy for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, on 28
March 2007, he already performed the following acts: (1) with the enactment of Republic Act No. 9225,
granting dual citizenship to natural-born Filipinos, Ty filed with the Philippine Consulate General in Los
Angeles, California, USA, an application for the reacquisition of his Philippine citizenship; (2) on 2
October 2005, Ty executed an Oath of Allegiance to the Republic of the Philippines before Noemi T.
Diaz, Vice Consul of the Philippine Consulate General in Los Angeles, California, USA; (3) Ty applied for a
Philippine passport indicating in his application that his residence in the Philippines was at A. Mabini St.,
Barangay 6, Poblacion, General Macarthur, Eastern Samar. Ty's application was approved and he was
issued on 26 October 2005 a Philippine passport; (4) on 8 March 2006, Ty personally secured and signed
his Community Tax Certificate (CTC) from the Municipality of General Macarthur, in which he stated that
his address was at Barangay 6, Poblacion, General Macarthur, Eastern Samar; (5) thereafter, on 17 July
2006, Ty was registered as a voter in Precinct 0013A, Barangay 6, Poblacion, General Macarthur, Eastern
Samar; (6) Ty secured another CTC dated 4 January 2007 again stating therein his address as Barangay 6,
Poblacion, General Macarthur, Eastern Samar; and (7) finally, Ty executed on 19 March 2007 a duly
notarized Renunciation of Foreign Citizenship.

Ø He had reacquired his Philippine citizenship and renounced his American citizenship, and he had been
a resident of the Municipality of General Macarthur, Eastern Samar, for more than one year prior to the
14 May 2007 elections. Therefore, Ty sought the dismissal of Japzon's Petition in SPA No. 07-568.

Ty acquired the highest number of votes and was declared Mayor of the Municipality of General
Macarthur, Eastern Samar, by the Municipal Board of Canvassers on 15 May 2007.[7]

Ø The COMELEC First Division found that Ty complied with the requirements of Sections 3 and 5 of
Republic Act No. 9225 and reacquired his Philippine citizenship, to wit:

Philippine citizenship is an indispensable requirement for holding an elective public office, and the
purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person owing
allegiance to another nation, shall govern our people and our country or a unit of territory thereof.

Ø Evidences revealed that Ty executed an Oath of Allegiance before Noemi T. Diaz, Vice Consul of the
Philippine Consulate General, Los Angeles, California, U.S.A. on October 2, 2005 and executed a
Renunciation of Foreign Citizenship on March 19, 2007 in compliance with R.A. [No.] 9225. Moreover,
neither is Ty a candidate for or occupying public office nor is in active service as commissioned or non-
commissioned officer in the armed forces in the country of which he was naturalized citizen

Ø Ty did not commit material misrepresentation in stating in his Certificate of Candidacy that he was a
resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar, for at least one year before the
elections on 14 May 2007. It reasoned that: Although Ty has lost his domicile in [the] Philippines when
he was naturalized as U.S. citizen in 1969, the reacquisition of his Philippine citizenship and subsequent
acts thereof proved that he has been a resident of Barangay 6, Poblacion, General Macarthur, Eastern
Samar for at least one (1) year before the elections held on 14 May 2007 as he represented in his
certificate of candidacy.

Ø The petition was denied and COMELEC was in favor of the defendant failing to obtain a favorable
resolution from the COMELEC, Japzon proceeded to file the instant Petition for Certiorari, that the
COMELEC had committed grave abuse of discretion and lack of discretion for dismissing the petition.

Ø Japzon prays for the Court to annul and set aside the Resolutions dated 31 July 2007 and 28
September 2007 of the COMELEC First Division and en banc, respectively; to issue a new resolution
denying due course to or canceling Ty's Certificate of Candidacy; and to declare Japzon as the duly
elected Mayor of the Municipality of General Macarthur, Eastern Samar.

Ø Ty sought the dismissal of the present Petition. According to Ty, the COMELEC already found
sufficient evidence to prove that Ty was a resident of the Municipality of General Macarthur, Eastern
Samar, one year prior to the 14 May 2007 local elections. The Court cannot evaluate again the very
same pieces of evidence without violating the well-entrenched rule that findings of fact of the COMELEC
are binding on the Court.

Ø The Office of the Solicitor General (OSG), meanwhile, is of the position that Ty failed to meet the one-
year residency requirement set by law to qualify him to run as a mayoralty candidate in the 14 May
2007 local elections.The Court finds no merit in the Petition at bar.

Ø . On 19 March 2007, he personally executed a Renunciation of Foreign Citizenship before a notary

public. By the time he filed his Certificate of Candidacy for the Office of Mayor of the Municipality of
General Macarthur, Eastern Samar, on 28 March 2007, he had already effectively renounced his
American citizenship, keeping solely his Philippine citizenship.

Ø The Court of Appeals set aside the appealed orders of the COMELEC and the Court of Appeals and
annulled the election of the respondent as Municipal Mayor of Bolinao, Pangasinan on the ground that
respondent's immigration to the United States in 1984 constituted an abandonment of his domicile and
residence in the Philippines. Being a green card holder, which was proof that he was a permanent
resident or immigrant of the United States, and in the absence of any waiver of his status as such before
he ran for election on January 18, 1988, respondent was held to be disqualified under §68 of the
Omnibus Election Code of the Philippines (Batas Pambansa Blg. 881).

ISSUE:

Whether or not the defedant has complied with the residency requirement for elective positions.

RULING:

Yes, the defendant solely complied the residency requirements for elective position.

Ø It bears to point out that Republic Act No. 9225 governs the manner in which a natural-born Filipino
may reacquire or retain[17] his Philippine citizenship despite acquiring a foreign citizenship, and
provides for his rights and liabilities under such circumstances. A close scrutiny of said statute would
reveal that it does not at all touch on the matter of residence of the natural-born Filipino taking
advantage of its provisions. Republic Act No. 9225 imposes no residency requirement for the
reacquisition or retention of Philippine citizenship; nor does it mention any effect of such reacquisition
or retention of Philippine citizenship on the current residence of the concerned natural-born Filipino.
Clearly, Republic Act No. 9225 treats citizenship independently of residence. This is only logical and
consistent with the general intent of the law to allow for dual citizenship.

Ø There is no basis for this Court to require Ty to stay in and never leave at all the Municipality of
General Macarthur, Eastern Samar, for the full one-year period prior to the 14 May 2007 local elections
so that he could be considered a resident thereof. To the contrary, the Court has previously ruled that
absence from residence to pursue studies or practice a profession or registration as a voter other than in
the place where one is elected, does not constitute loss of residence.[24] The Court also notes, that
even with his trips to other countries, Ty was actually present in the Municipality of General Macarthur,
Eastern Samar, Philippines, for at least nine of the 12 months preceding the 14 May 2007 local elections.
Even if length of actual stay in a place is not necessarily determinative of the fact of residence therein, it
does strongly support and is only consistent with Ty's avowed intent in the instant case to establish
residence/domicile in the Municipality of General Macarthur, Eastern Samar.

Ø Japzon repeatedly brings to the attention of this Court that Ty arrived in the Municipality of General
Macarthur, Eastern Samar, on 4 May 2006 only to comply with the one-year residency requirement, so
Ty could run as a mayoralty candidate in the 14 May 2007 elections. In Aquino v. COMELEC,[25] the
Court did not find anything wrong in an individual changing residences so he could run for an elective
post, for as long as he is able to prove with reasonable certainty that he has effected a change of
residence for election law purposes for the period required by law. As this Court already found in the
present case, Ty has proven by substantial evidence that he had established residence/domicile in the
Municipality of General Macarthur, Eastern Samar, by 4 May 2006, a little over a year prior to the 14
May 2007 local elections, in which he ran as a candidate for the Office of the Mayor and in which he
garnered the most number of votes.

Ø To successfully challenge Ty's disqualification, Japzon must clearly demonstrate that Ty's ineligibility is
so patently antagonistic to constitutional and legal principles that overriding such ineligibility and
thereby giving effect to the apparent will of the people would ultimately create greater prejudice to the
very democratic institutions and juristic traditions that our Constitution and laws so zealously protect
and promote. In this case, Japzon failed to substantiate his claim that Ty is ineligible to be Mayor of the
Municipality, the instant Petition for Certiorari is dismiss.

MAYOR JOSE UGDORACION, JR., VS COMMISSION ON ELECTIONS AND EPHRAIM M. TUNGOL

GR NO. 179851, APRIL 18, 2008

Facts:

1. Ugdoracion and Tungol were rival mayoralty candidates in the municipality of Albuquerque province of Bohol.
2. Tungol filed a petition to deny due course or cancel the certificate of candidacy of Ugdoracion, contending that
Ugdoracion's declaration of eligibility for mayor constituted material misrepresentation because he is actually a
green card holder or a permanent resident of USA.
3. He stated in his COC that he resided in Albuquerque for forty one years before May 14, 2007 and he is not a
permanent resident or an immigrant to a foreign country.
4. It appears that Ugdoracion became a permanent resident in USA on September 26, 2001.
5. Ugdoracion alleged that he retained his domicile of origin notwithstanding his ostensible acquisition of
permanent residency in the USA.
6. COMELEC cancelled Ugdoracion's COC - material representation
Issues:

Whether the COMELEC committed grave abuse of discretion in cancelling Ugdoracion's COC for material
representation

Ruling:

No grave abuse of discretion.

Section 74, in relation to section 78 of the omnibus election code, requires that the facts stated In the COC must be
true, and any false representation therein of a material fact shall be a ground for cancellation thereof. A material
fact refers to a candidate's qualification for elective office such as one's citizenship and residence. It is the
deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible.

Caasi vs Court of Appeals - that a Filipino citizen's acquisition of a permanent resident status abroad constitutes an
abandonment of his domicile and residence in the Philippines. A green card status in the USA is a renunciation of
one's status as a resident of the Philippines.

Residence, In contemplation of election laws, is synonymous to domicile. Domicile is the place where one actually
or constructively has his permanent home, where he, no matter where he may be found at any given time,
eventually intends to return (animus revertendi ) and remain (animus manendi). It consists not only in the
intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such
intention.

Domicile is classified into

1. Domicile of origin - acquired by every person at birth

2. Domicile of choice - acquired upon abandonment of the domicile of origin
3. Domicile by operation of law - which the law attributes to a person independently of his residence or
intention.
Three basic rules
1. A man must have a residence or domicile somewhere
2. Domicile, once established, remains until a new one is validly acquired
3. A man can have but one residence or domicile at any given time.
The general rule is that domicile of origin is not easily lost, it is only when there is actual removal or change of
domicile, Nona dude intention of abandoning the former residence and establishing a new one, and acts which
correspond with such purpose. In the instant case however Ugdoracion's acquisition of lawful permanent resident
status in the USA amounted to an abandonment and renunciation of his status as a resident of the Philippines.

REPRESENTATIVE DANILO RAMON S. FERNANDEZ vs. HRET

G. R. No. 187478 December 21, 2009

SUMMARY OF FACTS:

Petitioner filed for candidacy as Representative of the First Legislative District of the Province of Laguna in the May
14, 2007 elections. In his Certificate of Candidacy (COC), he indicated his complete/exact address as “No. 13
Maharlika St., Villa Toledo Subdivision, Barangay Balibago, Sta. Rosa City, Laguna” (alleged Sta. Rosa residence).

Private respondent Jesus L. Vicente (private respondent) filed a “Petition to Deny Due Course to and/or Cancel
Certificate of Candidacy and Petition for Disqualification but the COMELEC (First Division) dismissed said petition
for lack of merit.

Petitioner was proclaimed as the duly elected Representative of the First District of Laguna on June 27, 2007,
having garnered a total of 95,927 votes, winning by a margin of 35,000 votes over the nearest candidate.

On July 5, 2007, private respondent filed a petition for quo warranto before the HRET citing as main ground for the
quo warranto petition that petitioner lacked the required one-year residency requirement provided under Article
VI, Section 6 of the 1987 Constitution. Since the HRET ruled in favor of private respondent, petitioner ran to the
Supreme Court for legal succour.
STATEMENT OF RELEVANT ISSUES:

The issues for determination are: (1) whether the HRET had jurisdiction over the case; and (2) whether petitioner
sufficiently complied with the one-year residency requirement to be a Member of the House of Representatives, as
provided in the 1987 Constitution.

SUPREME COURT’S RULING:

The SC did not agree. The 1987 Constitution explicitly provides under Article VI, Section 17 thereof that the HRET
and the Senate Electoral Tribunal (SET) shall be the sole judges of all contests relating to the election, returns, and
qualifications of their respective members. The authority conferred upon the Electoral Tribunal is full, clear and
complete. The use of the word sole emphasizes the exclusivity of the jurisdiction of these Tribunals,[33] which is
conferred upon the HRET and the SET after elections and the proclamation of the winning candidates. A candidate
who has not been proclaimed and who has not taken his oath of office cannot be said to be a member of the
House of Representatives. [34]

Thus, private respondent correctly pointed out that a petition for quo warranto is within the exclusive jurisdiction
of the HRET, and cannot be considered forum shopping even if, as in this case, the COMELEC had already passed
upon in administrative or quasi-judicial proceedings the issue of the qualification of the Member of the House of
Representatives while the latter was still a candidate.

SECTION 64 – Natural Born Citizen

Mercado v. Manzano Case Digest [G.R. No. 135083. May 26, 1999]
FACTS:

Petitioner Ernesto Mercado and Eduardo Manzano were both candidates for Vice-Mayor of Makati in the May 11,
1998 elections.

Based on the results of the election, Manzano garnered the highest number of votes. However, his proclamation
was suspended due to the pending petition for disqualification filed by Ernesto Mercado on the ground that he
was not a citizen of the Philippines but of the United States.

From the facts presented, it appears that Manzano is both a Filipino and a US citizen.

The Commission on Elections declared Manzano disqualified as candidate for said elective position.

However, in a subsequent resolution of the COMELEC en banc, the disqualification of the respondent was
reversed. Respondent was held to have renounced his US citizenship when he attained the age of majority and
registered himself as a voter in the elections of 1992, 1995 and 1998.

Manzano was eventually proclaimed as the Vice-Mayor of Makati City on August 31, 1998.

Thus the present petition.

ISSUE:
Whether or not a dual citizen is disqualified to hold public elective office in the philippines.

RULING:

The court ruled that the phrase "dual citizenship" in R.A. 7160 Sec. 40 (d) and R.A. 7854 Sec. 20 must be
understood as referring to dual allegiance. Dual citizenship is different from dual allegiance. The former arises
when, as a result of the application of the different laws of two or more states, a person is simultaneously
considered a national by the said states. Dual allegiance on the other hand, refers to a situation in which a person
simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual
allegiance is a result of an individual's volition. Article IV Sec. 5 of the Constitution provides "Dual allegiance of
citizens is inimical to the national interest and shall be dealt with by law."

Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual
allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for
candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect
Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is
the unavoidable consequence of conflicting laws of different states.

By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of
which they are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of
view of the foreign state and of its laws, such an individual has not effectively renounced his foreign citizenship.
That is of no moment.

When a person applying for citizenship by naturalization takes an oath that he renounces his loyalty to any other
country or government and solemnly declares that he owes his allegiance to the Republic of the Philippines, the
condition imposed by law is satisfied and complied with. The determination whether such renunciation is valid or
fully complies with the provisions of our Naturalization Law lies within the province and is an exclusive prerogative
of our courts. The latter should apply the law duly enacted by the legislative department of the Republic. No
foreign law may or should interfere with its operation and application.

The court ruled that the filing of certificate of candidacy of respondent sufficed to renounce his American
citizenship, effectively removing any disqualification he might have as a dual citizen. By declaring in his certificate
of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of another country; that
he will defend and support the Constitution of the Philippines and bear true faith and allegiance thereto and that
he does so without mental reservation, private respondent has, as far as the laws of this country are concerned,
effectively repudiated his American citizenship and anything which he may have said before as a dual citizen.

On the other hand, private respondent’s oath of allegiance to the Philippines, when considered with the fact that
he has spent his youth and adulthood, received his education, practiced his profession as an artist, and taken part
in past elections in this country, leaves no doubt of his election of Philippine citizenship.

His declarations will be taken upon the faith that he will fulfill his undertaking made under oath. Should he betray
that trust, there are enough sanctions for declaring the loss of his Philippine citizenship through expatriation in
appropriate proceedings. In Yu v. Defensor-Santiago, the court sustained the denial of entry into the country of
petitioner on the ground that, after taking his oath as a naturalized citizen, he applied for the renewal of his
Portuguese passport and declared in commercial documents executed abroad that he was a Portuguese national.
A similar sanction can be taken against any one who, in electing Philippine citizenship, renounces his foreign
nationality, but subsequently does some act constituting renunciation of his Philippine citizenship.
The petition for certiorari is DISMISSED for lack of merit

Jacot v. Comelec
G.R. No. 179848 November 27, 2008

Facts:

Petitioner Jacot assails Comelec Resolution affirming his disqualification from running for the position of Vice-
Mayor for failure to comply the citizenship requirement. Petitioner was a natural born citizen of the Philippines,
who became a naturalized U.S citizen. Petitioner sought to reacquire his Philippine citizenship under R.A No. 9225.
Six months after, petitioner filed his Certificate of Candidacy. Respondent Dal filed a Petition for
Disqualification before the COMELEC against petitioner arguing that the latter failed to renounce his US citizenship,
as required under Section 5(2) of Republic Act No. 9225 for holding such public office as required by the
Constitution and existing laws. When the local and national elections were held petitioner garnered the highest
number of votes for the position of Vice Mayor. Thereafter, COMELEC finally issued its Resolution disqualifying the
petitioner. Petitioner filed a Motion for Reconsideration which was dismissed for lack of merit.

Issue:

Whether or not petitioner has validly comply the citizenship requirement as required by law for persons seeking
public office.

Ruling:

No. R.A 9225 requires that natural-born citizens of the Philippines, who are already naturalized citizens of a foreign
country, must take the following oath of allegiance to the Republic of the Philippines to reacquire or retain their
Philippine citizenship. It specifically provides that public office in the Philippines should meet the Constitutional
requirements and existing laws. At the time of the filing of the certificate of candidacy, make a personal and sworn
renunciation of any and all foreign citizenship before any public officer authorized to administer an oath. Filipinos
reacquiring or retaining their Philippine citizenship under Republic Act No. 9225 should not only take their oath of
allegiance to the Republic of the Philippines, but also to explicitly renounce their foreign citizenship if they wish to
run for elective posts in the Philippines. A candidate in Philippine elections must only have one citizenship, that is,
Philippine citizenship. This the petitioner fails to do.

A candidate who failed to comply with the election requirements applicable to dual citizens and received the
highest number of votes for an elective position does not dispense with, or amount to a waiver of, the citizenship
requirement. The will of the people as expressed through the ballot cannot cure the ineligibility, especially if they
mistakenly believed that the candidate was qualified. The rules on citizenship qualifications of a candidate must be
strictly applied. The application of the constitutional and statutory provisions on disqualification is not a matter of
popularity. The appeal was DISMISSED. Comelec Resolution was AFFIRMED and petitioner was DISQUALIFIED
CORDORA V. COMELEC (2009)
Facts:

Tambunting ran for a public local office which was opposed by Cordora. The latter alleged that Tambunting was
not eligible to run for local public office because Tambunting lacked the required citizenship and residency
requirements. In lieu with this, Cordora seeks to prosecute Tambunting for knowingly making untruthful
statements in his certificates of candidacy. Tambunting, on the other hand, maintained that he did not make any
misrepresentation in his certificates of candidacy. Tambunting further denied that he was naturalized as an
American citizen. The certificate of citizenship conferred by the US government after Tambunting's father
petitioned him through INS Form I-130 (Petition for Relative) merely confirmed Tambunting's citizenship which he
acquired at birth. Tambunting's possession of an American passport did not mean that Tambunting is not a Filipino
citizen. Tambunting also took an oath of allegiance on 18 November 2003 pursuant to Republic Act No. 9225 (R.A.
No. 9225), or the Citizenship Retention and Reacquisition Act of 2003.Tambunting further stated that he has
resided in the Philippines since birth. Tambunting has imbibed the Filipino culture, has spoken the Filipino
language, and has been educated in Filipino schools. Tambunting maintained that proof of his loyalty and devotion
to the Philippines was shown by his service as councilor of Parañaque.

The COMELEC En Banc was convinced and affirmed the findings and the resolution of the COMELEC Law
Department that Cordora failed to support his accusation against Tambunting by sufficient and convincing
evidence.

Issues:

1. WON the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction on its
ruling.
2. WON Tambunting was qualified to hold a local public office.

Held:

1. There was no grave abuse of discretion in the COMELEC En Banc's ruling that there is no sufficient and
convincing evidence to support a finding of probable cause to hold Tambunting for trial for violation of Section 74
in relation to Section 262 of the Omnibus Election Code.
Probable cause constitutes those facts and circumstances which would lead a reasonably discreet and prudent
man to believe that an offense has been committed. Determining probable cause is an intellectual activity
premised on the prior physical presentation or submission of documentary or testimonial proofs either confirming,
negating or qualifying the allegations in the complaint.

2. Tambunting possesses dual citizenship. Because of the circumstances of his birth, it was no longer necessary
for Tambunting to undergo the naturalization process to acquire American citizenship. The process involved in INS
Form I-130 only served to confirm the American citizenship which Tambunting acquired at birth. Clearly,
Tambunting possessed dual citizenship prior to the filing of his certificate of candidacy before the 2001 elections.
The fact that Tambunting had dual citizenship did not disqualify him from running for public office.

Dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application
of the different laws of two or more states, a person is simultaneously considered a national by the said states. For
instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the
principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and
without any voluntary act on his part, is concurrently considered a citizen of both states.
Suffice it to say, that the twin requirements in R.A. No. 9225 (Oath of Allegiance and an execution of Renunciation
of Foreign Citizenship) do not apply to Tambunting for the reason that he is natural-born Filipino. The twin
requirements apply only when a Filipino who becomes a naturalized citizen of another country is allowed to retain
his Filipino citizenship by swearing to the supreme authority of the Republic of the Philippines. The act of taking an
oath of allegiance is an implicit renunciation of a naturalized citizen's foreign citizenship.

The present petition filed by Cordora was dismissed.

DE GUZMAN VS COMELEC
G.R. NO. 180048 JUNE 19, 2009

FACTS:

This is a petition for certiorari with prayer for preliminary injunction and temporary restraining order assails the
June 15, 2007 Resolution of the First Division of COMELEC, disqualifying ROSELLER DE GUZMAN from running as
vice-mayor in the May 14, 2007 elections.

Petitioner was a naturalized American. However, on January 25, 2006, he applied for dual citizenship under RA

9225. Upon approval of his application, he took his oath of allegiance to the Republic of the Philippines on
September 6, 2006. Having reacquired Philippine citizenship, he is entitled to exercise full civil and political rights.
As such, qualified to run as vice-mayor of Guimba, Nueva Ecija.

ISSUE:

Whether or not petitioner is disqualified from running for vice-mayor of Guimba, Nueva Ecija in the May 14, 2007
elections for having failed to renounce his American Citizenship in accordance with RA 9225.

HELD:

We find that petitioner is disqualified from running for public office in view of his failure to renounce his American
citizenship. RA 9225 was enacted to allow reacquisition and retention of Philippine citizenship for:

1. Natural born citizens who have lost their Philippine citizenship by reason of their naturalization as citizens
of a foreign country;

2. Natural born citizens of the Philippines who after the effectivity of the law, becomes citizens of a foreign
country.

The law provides that they are not deemed to have reacquired or retained their Philippine citizenship upon taking
the oath of allegiance.

Petitioner’s oath of allegiance and certificate of candidacy did not comply with section(5)2 of RA 9225 which
further requires those seeking elective public office in the Philippines to make a personal and sworn renunciation
of foreign citizenship. Petitioner failed to renounce his American citizenship; as such, he is disqualified from
running for vice mayor.
 SECTION 64 – TERM LIMIT
Socrates vs COMELEC
(Local Government, Recall Election: Exception to the 3 term limit)

Facts: COMELEC gave due course to the Recall Resolution against Mayor Socrates of the City of Puerto Princesa,
and scheduled the recall election on September 7, 2002.

On August 23, 2002, Hagedorn filed his COC for mayor in the recall election.

Different petitioners filed their respective petitions, which were consolidated seeking the disqualification of
Hagedorn to run for the recall election and the cancellation of his COC on the ground that the latter is disqualified
from running for a fourth consecutive term, having been elected and having served as mayor of the city for three
(3) consecutive full terms in 1992, 1995 and 1998 immediately prior to the instant recall election for the same
post.

COMELEC’s First Division dismissed in a resolution the petitioner for lack of merit. And COMELEC declared
Hagedorn qualified to run in the recall election.

Issue: WON one who has been elected and served for 3 consecutive full terms is qualified to run for mayor in the
recall election.

Held: Yes. The three-term limit rule for elective local officials is found in Section 8, Article X of the Constitution,
which states:

“Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by
law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected.”

This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as the Local Government
Code, which provides:

“Section 43. Term of Office. – (a) x x x

(b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary
renunciation of the office for any length of time shall not be considered as an interruption in the continuity of
service for the full term for which the elective official was elected.”

The first part provides that an elective local official cannot serve for more than three consecutive terms. The clear
intent is that only consecutive terms count in determining the three-term limit rule. The second part states that
voluntary renunciation of office for any length of time does not interrupt the continuity of service. The clear intent
is that involuntary severance from office for any length of time interrupts continuity of service and prevents the
service before and after the interruption from being joined together to form a continuous service or consecutive
terms.

After three consecutive terms, an elective local official cannot seek immediate re-election for a fourth term. The
prohibited election refers to the next regular election for the same office following the end of the third
consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two
reasons. First, a subsequent election like a recall election is no longer an immediate re-election after three
consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of
service.

Based from the deliberations of a Constitutional Commission, what the Constitution prohibits is an immediate re-
election for a fourth term following three consecutive terms. The Constitution, however, does not prohibit a
subsequent re-election for a fourth term as long as the re-election is not immediately after the end of the third
consecutive term. A recall election mid-way in the term following the third consecutive term is a subsequent
election but not an immediate re-election after the third term.

Neither does the Constitution prohibit one barred from seeking immediate re-election to run in any other
subsequent election involving the same term of office. What the Constitution prohibits is a consecutive fourth
term.

In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not an immediate re-election
after his third consecutive term which ended on June 30, 2001. The immediate re-election that the Constitution
barred Hagedorn from seeking referred to the regular elections in 2001.

Latasa vs. Comelec

Facts:

Petitioner Latasa, was elected mayor of the Municipality of Digos, Davao del Sur in the elections of 1992, 1995, and
1998. In February 2001, he filed his certificate of candidacy for city mayor for the 2001 elections. He stated therein
that he is eligible therefor, and likewise disclosed that he had already served for three consecutive terms as mayor
of the Municipality of Digos and is now running for the first time for the position of city mayor.

Sunga, also a candidate for city mayor in the said elections, filed before the COMELEC a petition to deny
petitioner's candidacy since the latter had already been elected and served for three consecutive terms. Petitioner
countered that this fact does not bar him from filing a certificate of candidacy for the 2001 elections since this will
be the first time that he will be running for the post of city mayor.

The Comelec’s First Division denied petitioner's certificate of candidacy. However, his motion for reconsideration
was not acted upon by the Comelec en banc before election day and he was proclaimed winner. Only after the
proclamation did the Comelec en banc issue a resolution that declared him disqualified from running for mayor of
Digos City, and ordered that all votes cast in his favor should not be counted.

Petitioner appealed, contending that when Digos was converted from a municipality to a city, it attained a
different juridical personality separate from the municipality of Digos. So when he filed his certificate of candidacy
for city mayor, it should not be construed as vying for the same local government post

Issue:

Is petitioner Latasa eligible to run as candidate for the position of mayor of the newly-created City of Digos
immediately after he served for three consecutive terms as mayor of the Municipality of Digos?

Held:

As a rule, in a representative democracy, the people should be allowed freely to choose those who will govern
them. Article X, Section 8 of the Constitution is an exception to this rule, in that it limits the range of choice of the
people.
Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law,
shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation
of the office for any length of time shall not be considered as an interruption in the continuity of his service for the
full term for which he was elected.

An elective local official, therefore, is not barred from running again in for same local government post, unless two
conditions concur: 1.) that the official concerned has been elected for three consecutive terms to the same local
government post, and 2.) that he has fully served three consecutive terms.

True, the new city acquired a new corporate existence separate and distinct from that of the municipality. This
does not mean, however, that for the purpose of applying the subject Constitutional provision, the office of the
municipal mayor would now be construed as a different local government post as that of the office of the city
mayor. As stated earlier, the territorial jurisdiction of the City of Digos is the same as that of the municipality.
Consequently, the inhabitants of the municipality are the same as those in the city. These inhabitants are the same
group of voters who elected petitioner Latasa to be their municipal mayor for three consecutive terms. These are
also the same inhabitants over whom he held power and authority as their chief executive for nine years.

The framers of the Constitution specifically included an exception to the peoples freedom to choose those who will
govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial
jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of
city mayor after having served for three consecutive terms as a municipal mayor would obviously defeat the very
intent of the framers when they wrote this exception. Should he be allowed another three consecutive terms as
mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same
territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to
be avoided by the Constitution, if not abhorred by it.(Latasa vs. Comelec, G.R. No. 154829, 10 December 2003)

Note:

● It cannot be denied that the Court has previously held in Mamba-Perez v. COMELEC that after an elective official
has been proclaimed as winner of the elections, the COMELEC has no jurisdiction to pass upon his qualifications.
An opposing party's remedies after proclamation would be to file a petition for quo warranto within ten days after
the proclamation. Time and again, this Court has held that rules of procedure are only tools designed to facilitate
the attainment of justice, such that when rigid application of the rules tend to frustrate rather than promote
substantial justice, this Court is empowered to suspend their operation. We will not hesitate to set aside
technicalities in favor of what is fair and just.

Dizon vs. Comelec

Facts:

Roberto L. Dizon, a resident and taxpayer of Mabalacat, Pampanga, filed a case with the COMELEC to disqualify
Marino P. Morales, the incumbent mayor of Mabalacat on the ground that the latter was elected and had fully
served three previous consecutive terms in violation of Section 43 of the Local Government Code. Dizon alleged
that Morales was municipal mayor in 1995, 1998, 2001 and 2004. Thus, Morales should not have been allowed to
have filed his Certificate of Candidacy on March 2007 for the same position and same municipality.

Morales, on the other hand, contended that he is still eligible and qualified to run as mayor of Mabalacat because
he was not elected for the said position in the 1998 elections. He averred that the COMELEC en banc affirmed the
decision of the RTC declaring Anthony D. Dee as the duly elected Mayor of Mabalacat in the 1998 elections. Thus,
he was not elected for the said position in the 1998 elections. His term should be reckoned from 2001. He added
that his election in 2004 is only for his second term.

COMELEC Second Division ruled in favor of Morales and denied the petition. It took judicial notice of SC’s ruling in
the Rivera case promulgated on May 9, 2007 where it was held that Morales was elected as mayor of Mabalacat in
1995, 1998 and 2001 (notwithstanding the RTC Decision in an electoral protest case that the then proclamation of
Morales was void). The SC ruled in that case that Morales violated the three-term limit under Section 43 of the
LGC. Hence, Morales was considered not a candidate in the 2004 elections, and this failure to qualify for the 2004
elections is a gap and allows him to run again for the same position in 2007 elections.

Issues:

1. WON the period served by Morales in the 2004-2007 term (although he was ousted from his office as Mayor on
May16, 2007) should be considered his fourth term

2. WON the 2007-2010 term of Morales is his 5th term

Held:

1. NO. In our decision promulgated on 9 May 2007, this Court unseated Morales during his fourth term. We
cancelled his Certificate of Candidacy dated 30 December 2003. This cancellation disqualified Morales from being a
candidate in the May 2004 elections. The votes cast for Morales were considered stray votes.

Both Article X, Section 8 of the Constitution and Section 43(b) of the Local Government Code state that the term of
office of elective local officials, except barangay officials, shall be three years, and no such official shall serve for
more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was elected.

There should be a concurrence of two conditions for the application of the disqualification: (1) that the official
concerned has been elected for three consecutive terms in the same local government post and (2) that he has
fully served three consecutive terms.

In the Rivera case, we found that Morales was elected as mayor of Mabalacat for four consecutive terms: 1995-
1998, 1998-2001, 2001-2004, and 2004-2007. We disqualified Morales from his candidacy in the May 2004
elections because of the three-term limit. Although the trial court previously ruled that Morales’ proclamation for
the 1998-2001 term was void, there was no interruption of the continuity of Morales’ service with respect to the
1998-2001 term because the trial court’s ruling was promulgated only on 4 July 2001, or after the expiry of the
1998-2001 term.

Our ruling in the Rivera case served as Morales’ involuntary severance from office with respect to the 2004-2007
term. Involuntary severance from office for any length of time short of the full term provided by law amounts to an
interruption of continuity of service. Our decision in the Rivera case was promulgated on 9 May 2007 and was
effective immediately. The next day, Morales notified the vice mayor’s office of our decision. The vice mayor
assumed the office of the mayor from 17 May 2007 up to 30 June 2007. The assumption by the vice mayor of the
office of the mayor, no matter how short it may seem to Dizon, interrupted Morales’ continuity of service. Thus,
Morales did not hold office for the full term of 1 July 2004 to 30 June 2007. (4th term)

2. Dizon claims that the 2007-2010 term is Morales’ fifth term in office. NO. Morales occupied the position of
mayor of Mabalacat for the following periods:

1995-1998

1998-2001
2001-2004

2004-2007.

However, because of his disqualification, Morales was not the duly elected mayor for the 2004-2007 term. Neither
did Morales hold the position of mayor of Mabalacat for the full term. Morales cannot be deemed to have served
the full term of 2004-2007 because he was ordered to vacate his post before the expiration of the term. Morales’
occupancy of the position of mayor of Mabalacat from 2004-2007 cannot be counted as a term for purposes of
computing the three-term limit. Indeed, the period from 17 May 2007 to 30 June 2007 served as a gap for
purposes of the three-term limit rule. Thus, the present 1 July 2007 to 30 June 2010 term is effectively Morales’
first term for purposes of the three-term limit rule. (Dizon v. Comelec, G.R. No. 182088, January 30, 2009)

Montebon vs. Comelec

Facts:

Montebon had been elected for three consecutive terms as municipal councilor of Tuburan, Cebu in 1998, 2001,
and 2004 elections. However, in January 2004, or during his second term, he succeeded and assumed the position
of vice-mayor of Tuburan when the incumbent vice-mayor retired. When he filed his certificate of candidacy again
as municipal councilor for 2007 elections, a petition for disqualification was filed against him based on the three-
term limit rule. In his answer, Montebon argued that he cannot be disqualified on the ground of the 3-term limit
rule because his second term was interrupted when he assumed the position of vice-mayor due to the retirement
of elected vicemayor Petronilo Mendoza. Petitioners maintained that Montebon's assumption of office as vice-
mayor in January 2004 should not be considered an interruption in the service of his second term since it was a
voluntary renunciation of his office as municipal councilor.

Issue:

Was Montebon's assumption to the vice-mayoralty position considered an involuntary severance or interruption?

Held:

Yes. Succession in local government offices is by operation of law. Section 44 of Republic Act No. 7160, provides
that if a permanent vacancy occurs in the office of the vice mayor, the highest ranking sanggunian member shall
become vice mayor.

The legal successor is not given any option under the law on whether to accept the vacated post or not. Section 44
of the Local Government Code makes no exception. Only if the highest-ranking councilor is permanently unable to
succeed to the post does the law speak of alternate succession. Under no circumstances can simple refusal of the
official concerned be considered as permanent inability within the contemplation of law. Essentially therefore, the
successor cannot refuse to assume the office that he is mandated to occupy by virtue of succession. He can only do
so if for some reason he is permanently unable to succeed and occupy the post vacated.

Thus, succession by law to a vacated government office is characteristically not voluntary since it involves the
performance of a public duty by a government official, the non-performance of which exposes said official to
possible administrative and criminal charges of dereliction of duty and neglect in the performance of public
functions. It is therefore more compulsory and obligatory rather than voluntary.

In this case, a permanent vacancy occurred in the office of the vice-mayor due to the retirement of Vice Mayor
Mendoza. Montebon, being the highest ranking municipal councilor, succeeded him in accordance with law.
Thus, Montebon's assumption of office as vice-mayor in January 2004 was an involuntary severance from his office
as municipal councilor, resulting in an interruption in the service of his 2001-2004 term. It cannot be deemed to
have been by reason of voluntary renunciation because it was by operation of law. (Montebon vs. Comelec, G.R.
No. 180444. April 9, 2008)

Note:

● Since the law no less allowed Montebon to vacate his post as councilor in order to assume office as vicemayor,
his occupation of the higher office cannot, without more, be deemed as a voluntary renunciation of his position as
councilor.

Aldovino VS COMELEC
FACTS:

Lucena City councilor Wilfredo F. Asilo was elected to the said office for three consecutive terms: 1998-2001, 2001-
2004, and 2004-2007. In September 2005, during his third term of office, the Sandiganbayan issued an order of 90-
day preventive suspension against him in relation to a criminal case. The said suspension order was subsequently
lifted by the Court, and Asilo resumed the performance of the functions of his office.

Asilo then filed his certificate of candidacy for the same position in 2007. His disqualification was sought by herein
petitioners on the ground that he had been elected and had served for three consecutive terms, in violation of the
three-term Constitutional limit.

ISSUE:

WON the suspensive condition interrupts the three-term limitation rule of COMELEC?

RULING:

NO. The preventive suspension of public officials does not interrupt their term for purposes of the three-term limit
rule under the Constitution and the Local Government Code (RA 7160).

The candidacy of Lucena City Councilor Wilfredo F. Asilo for a fourth term in the 2007 elections was in
contravention of the three-term limit rule of Art. X, sec. 8 of the Constitution since his 2004-2007 term was not
interrupted by the preventive suspension imposed on him, the SC granted the petition of Simon B. Aldovino,
Danilo B. Faller, and Ferdinand N. Talabong seeking Asilo’s disqualification.

“Preventive suspension, by its nature, does not involve an effective interruption of service within a term and
should therefore not be a reason to avoid the three-term limitation,” held the Court. It noted that preventive
suspension can pose as a threat “more potent” than the voluntary renunciation that the Constitution itself
disallows to evade the three-term limit as it is easier to undertake and merely requires an easily fabricated
administrative charge that can be dismissed soon after a preventive suspension has been imposed

Adormeo vs Comelec
Recall, Term of Office, Three-Term Limit, Voluntary Renunciation
Facts:
Ramon Talaga, Jr. served as mayor of Lucena City during terms 1992-1995 and 1995-1998. During the 1998
elections, Talaga lost to Bernard G. Tagarao. However, before Tagarao’s 1998-2001 term ended, a recall election
was conducted in May 2000 wherein Talaga won and served the unexpired term of Tagarao until June 2001. When
Talaga ran for mayor in 2001, his candidacy was challenged on the ground that he had already served as mayor for
three consecutive terms in violation of the three term-limit rule. Comelec found Talaga disqualified to run for
mayor. Talaga filed a motion for reconsideration which Comelec granted. Talaga was then elected Mayor.

Issue:

Whether Talaga was disqualified to run as mayor given that he had already served two full terms and he won in
the 2000 recall elections.

Held:

The term limit for elective local officials must be taken to refer to the right to be elected as well as the right to
serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive
terms in an elective local office, he must also have been elected to the same position for the same number of
times before the disqualification can apply.

For nearly two years Talaga was a private citizen. The continuity of his mayorship was disruptedby his defeat in the
1998 elections. The time between his second term and the recall election is sufficient interruption. Thus, there was
no three consecutive terms as contemplated in the disqualifications in the LGC.

Talaga only served two consecutive full terms. There was a disruption when he was defeated in the 1998 elections.
His election during the 2000 recall election is not a continuation of his two previous terms which could constitute
his third term thereby barring him for running for a fourth term. Victory in the 2000 recall election is not the
“voluntary renunciation” contemplated by the law. (Adormeo vs Comelec, G.R. No. 147927, February 4, 2002)

SECTION 66 – DEEM RESIGNED

QUINTO and TOLENTINO, JR., vs. COMELEC
G.R. No. 189698 December 1, 2009 Equal Protection Clause, Appointed Officials

NOVEMBER 23, 2017

FACTS:

Before the Court is a petition for prohibition and certiorari, with prayer for the issuance of a temporary
restraining order and a writ of preliminary injunction, assailing Section 4(a) of Resolution No. 8678 of the
Commission on Elections (COMELEC). They contend that the COMELEC gravely abused its discretion when it issued
the assailed Resolution. They aver that the advance filing of CoCs for the 2010 elections is intended merely for the
purpose of early printing of the official ballots in order to cope with time limitations. Such advance filing does not
automatically make the person who filed the CoC a candidate at the moment of filing. Petitioners further posit that
the provision considering them as ipso facto resigned from office upon the filing of their CoCs is discriminatory and
violates the equal protection clause in the Constitution.

ISSUE:
Are appointed officials considered resigned upon filing of their certificates of candidacy? Is Section 13 of RA 9369
violative of the equal protection clause?

RULING:

No to the first question and yes to the second. “ANY PERSON WHO FILES HIS CERTIFICATE OF CANDIDACY WITHIN
THIS PERIOD SHALL ONLY BE CONSIDERED AS A CANDIDATE AT THE START OF THE CAMPAIGN PERIOD FOR WHICH
HE FILED HIS COC.” The said proviso seems to mitigate the situation of disadvantage afflicting appointive officials
by considering persons who filed their CoCs as candidates only at the start of the campaign period, thereby,
conveying the tacit intent that persons holding appointive positions will only be considered as resigned at the start
of the campaign period when they are already treated by law as candidates.

In considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their
CoCs, but not considering as resigned all other civil servants, specifically the elective ones, the law unduly
discriminates against the first class. The fact alone that there is substantial distinction between those who hold
appointive positions and those occupying elective posts, does not justify such differential treatment.

Applying the four requisites to the instant case, the Court finds that the differential treatment of persons holding
appointive offices as opposed to those holding elective ones is not germane to the purposes of the law. There is
thus no valid justification to treat appointive officials differently from the elective ones. The classification simply
fails to meet the test that it should be germane to the purposes of the law. The measure encapsulated in the
second proviso of the third paragraph of Section 13 of R.A. No. 9369 and in Section 66 of the OEC violates the
equal protection clause.

SECTION 68
EN BANC

[ G.R. No. 180164, June 17, 2008 ]

FLORENTINO P. BLANCO, PETITIONER, VS. THE COMMISSION ON ELECTIONS AND EDUARDO A. ALARILLA,
RESPONDENTS

DECISION

AZCUNA, J.:

This is a petition for certiorari[1] alleging that the Commission on Elections (COMELEC), Second Division, acted with
grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the Resolution dated August 28,
2007 disqualifying petitioner from running for an elective office in the May 14, 2007 National and Local Elections.

The facts are as follows:

Petitioner Florentino P. Blanco was the mayor of Meycauayan, Bulacan from 1987 up to 1992.

During the May 8, 1995 elections, petition ran as a candidate for the same mayoralty position and won during the
canvassing by more than 6,000 votes over private respondent Eduardo A. Alarilla. Private respondent filed a
petition for the disqualification of petitioner on the ground of vote-buying which resulted in the suspension of
petitioner's proclamation.

On August 15, 1995, public respondent issued a resolution disqualifying petitioner as candidate for the said
position due to violation of Sec. 261 (a) of the Omnibus Election Code. This Court affirmed the disqualification
under Sec. 68 of the Omnibus Election Code in Blanco v. COMELEC, [2] G.R. No. 122258, which was promulgated on
July 21, 1997.

During the 1998 elections, petitioner again ran as a mayoralty candidate. Domiciano G. Ruiz, a voter of
Meycauayan, Bulacan, sought to disqualify him on the basis of the Court's ruling in G.R. No. 122258.

On April 30, 1998, the COMELEC, Second Division, issued a resolution in SPA No. 98-043 dismissing the petition for
disqualification on the ground that petitioner was not disqualified under Sec. 68 of the Omnibus Election Code as
his previous disqualification in the May 8, 1995 elections attached only during that particular election.

Moreover, the COMELEC stated that "no criminal action was instituted against [petitioner], much less a judgment
of conviction for vote-buying under Sec. 261 (a) of the Omnibus Election Code has been rendered against
[petitioner] in order that Section 264 of the same [Code] providing for the accessory penalty of disqualification
from holding public office may attach to [petitioner]."

During the May 14, 2001 elections, petitioner again ran for a mayoralty position, but private respondent sought
petitioner's disqualification based on the Court's ruling in G.R. No. 122258.

On May 11, 2001, the COMELEC, Second Division, issued a resolution in SPA No. 01-050, this time disqualifying
petitioner from running for a mayoralty position in the May 14, 2001 elections under Sec. 40 (b) of the Local
Government Code for having been removed from office through an administrative case. It denied petitioner's
motion for reconsideration for having been filed beyond the 5-day reglementary period.

During the May 10, 2004 elections, petitioner again ran as a mayoralty candidate, but private respondent sought to
disqualify him based on the Court's ruling in G.R. No. 122258. Petitioner withdrew his certificate of candidacy, so
the petition for disqualification was dismissed for being moot.

Apprehensive that he would encounter another petition for disqualification in succeeding elections, petitioner filed
a petition for declaratory relief before the Regional Trial Court (RTC) of Malolos, Bulacan, for the issuance of a
judgment declaring him eligible to run for public office in contemplation of Sec. 40 (b) of the Local Government
Code and Secs. 68, 261(a) and 264 of the Omnibus Election Code.

In a Decision dated November 6, 2005, the RTC declared petitioner eligible to run for an elective office.

During the May 14, 2007 elections, petitioner ran anew for a mayoralty position. Again, private respondent sought
the disqualification of petitioner based on the Court's ruling in G.R. No. 122258 and the COMELEC Resolution dated
May 11, 2001 in SPA No. 01-050.

On August 28, 2007, the COMELEC, Second Division, issued a resolution in SPA Case No. 07-410 disqualifying
petitioner from running in the May 14, 2007 elections on the ground that Blanco v. COMELEC, G.R. No. 122258,
affirmed its disqualification of petitioner in the May 8, 1995 elections, and that the COMELEC Resolution in SPA No.
01-050 also disqualified petitioner under Sec. 40 (b) of the Local Government Code. The COMELEC stated that since
petitioner failed to show that he had been bestowed a presidential pardon, amnesty or other form of executive
clemency, there is no reason to disturb its findings in SPA No. 01-050.
Hence, this petition praying that the COMELEC Resolution dated August 28, 2007 be reversed and set aside, and
that petitioner be declared as eligible to run for public office.

Petitioner raised these issues:

I.

Whether or not the COMELEC, Second Division, gravely abused its discretion in ruling that petitioner is disqualified
to run for an elective office by reason of the Court's ruling in Blanco v. COMELEC, G.R. No. 122258, as well as the
Resolution of the COMELEC in SPA No. 01-050.

II.

Whether or not the COMELEC, Second Division, gravely abused its discretion in ruling that petitioner is disqualified
to run for an elective office since he has not been bestowed a presidential pardon, amnesty or any form of
executive clemency.[3]

The initial issue that has to be determined is whether the Court can take cognizance of this case since petitioner
did not file a motion for reconsideration of the Resolution of the COMELEC, Second Division before the
COMELEC en banc as he went directly to this Court by filing this petition "in accordance with Sec. 7 of Article IX-A
of the Constitution," which provides:

Section 7. Each commission shall decide by a majority vote of all its members any case or matter brought before it
within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted
for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the
commission or by the commission itself. Unless otherwise provided by this constitution or by law, any decision,
order, or ruling of each commission may be brought to the Supreme Court on certiorari by the aggrieved party
within thirty days from receipt of a copy thereof.

Soriano v. COMELEC[4] and Repol v. COMELEC[5] gave the Court's interpretation of Sec. 7, Article IX-A of the
Constitution, thus:

We have interpreted this constitutional provision to mean final orders, rulings and decisions of the COMELEC
rendered in the exercise of its adjudicatory or quasi-judicial powers. The decision must be a final decision or
resolution of the COMELEC en banc. The Supreme Court has no power to review via certiorari an interlocutory
order or even a final resolution of a Division of the COMELEC. Failure to abide by this procedural requirement
constitutes a ground for dismissal of the petition.

However, this rule is not ironclad. In ABS-CBN Broadcasting Corporation v. COMELEC, we stated -

This Court, however, has ruled in the past that this procedural requirement [of filing a motion for reconsideration]
may be glossed over to prevent a miscarriage of justice, when the issue involves the principle of social justice or
the protection of labor, when the decision or resolution sought to be set aside is a nullity, or when the need for
relief is extremely urgent and certiorari is the only adequate and speedy remedy available.[6]

The Court holds that direct resort to this Court through a special civil action for certiorari is justified in this case
since the Resolution sought to be set aside is a nullity. The holding of periodic elections is a basic feature of our
democratic government.[7] Setting aside the resolution of the issue will only postpone a task that could well crop
up again in future elections.[8]
In this case, petitioner contends that in Blanco v. COMELEC, G.R. No. 122258, he was found only administratively
liable for vote-buying in the 1995 elections and was disqualified under Sec. 68 of the Omnibus Election Code, and
that he was not disqualified under Sec. 261(a) and Sec. 264 of the Omnibus Election Code since no criminal action
was filed against him. He submits that his disqualification was limited only to the 1995 elections and that it did not
bar him from running for public office in the succeeding elections.

Petitioner's contention is meritorious.

The Court notes that the Office of the Solicitor General, in its Comment, found this petition meritorious.

Petitioner's disqualification in 1995 in Blanco v. COMELEC, G.R. No. 122258, was based on Sec. 68 of the Omnibus
Election Code, although the COMELEC, Second Division, pronounced that petitioner violated 261 (a) of the
Omnibus Election Code.

Sec. 68 and Sec. 261 (a) of the Omnibus Election Code provide:

Sec. 68. Disqualifications. -- Any candidate who, in an action or protest in which he was a party is declared by final
decision of a competent court guilty of, or found by the Commission of having (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of
that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97
and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall
be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person
who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective
office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign
country in accordance with the residence requirement provided for in the election laws. [9]

Sec. 261. Prohibited Acts. -- The following shall be guilty of an election offense:

(a) Vote-buying and vote-selling. -- (1) Any person who gives, offers or promises money or anything of value, gives
or promises any office or employment, franchise or grant, public or private, or makes or offers to make an
expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation,
entity, or community in order to induce anyone or the public in general to vote for or against any candidate or
withhold his vote in the election, or to vote for or against any aspirant for the nomination or choice of a candidate
in a convention or similar selection process of a political party.

In Blanco v. COMELEC, G.R. No. 122258, the Court held:

...Vote-buying has its criminal and electoral aspects. Its criminal aspect to determine the guilt or innocence of the
accused cannot be the subject of summary hearing. However, its electoral aspect to ascertain whether the
offender should be disqualified from office can be determined in an administrative proceeding that is summary in
character. [10]

In Lanot v. COMELEC,[11] the Court further explained:

...The electoral aspect of a disqualification case determines whether the offender should be disqualified from
being a candidate or from holding office. Proceedings are summary in character and require only clear
preponderance of evidence. An erring candidate may be disqualified even without prior determination of probable
cause in a preliminary investigation. The electoral aspect may proceed independently of the criminal aspect,
and vice versa.
The criminal aspect of a disqualification case determines whether there is probable cause to charge a candidate for
an election offense. The prosecutor is the COMELEC, through its Law Department, which determines whether
probable cause exists. If there is probable cause, the COMELEC, through its Law Department, files the criminal
information before the proper court. Proceedings before the proper court demand a full-blown hearing and
require proof beyond reasonable doubt to convict. A criminal conviction shall result in the disqualification of the
offender, which may even include disqualification from holding a future public office. [12]

Petitioner's disqualification in 1995 was resolved by the COMELEC in a summary proceeding. The COMELEC only
determined the electoral aspect of whether petitioner should be disqualified as a candidate. It resolved "to
DISQUALIFY [petitioner] Florentino P. Blanco as a candidate for the Office of Mayor of Meycauayan, Bulacan in the
May 8, 1995 elections for having violated Section 261 (a) of the Omnibus Election Code." This Court, in G.R. No.
122258, affirmed only the electoral aspect of the disqualification made by COMELEC, which falls under Sec. 68 of
the Omnibus Election Code:

Sec. 68. Disqualifications. -- Any candidate who, in an action or protest in which he was a party is declared by final
decision of a competent court guilty of, or found by the Commission of having (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials performing electoral functions x x
x shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office.

Hence, in G.R. No. 122258, petitioner was disqualified from continuing as a candidate only in the May 8, 1995
elections.

Relevant to this case is Codilla v. De Venecia,[13] which held that the jurisdiction of the COMELEC to disqualify
candidates is limited to those enumerated in Sec. 68 of the Omnibus Election Code, thus:

...[T]he jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in section 68 of the
Omnibus Election Code. All other election offenses are beyond the ambit of COMELEC jurisdiction. They are
criminal and not administrative in nature. Pursuant to sections 265 and 268 of the Omnibus Election Code, the
power of the COMELEC is confined to the conduct of preliminary investigation on the alleged election offenses for
the purpose of prosecuting the alleged offenders before the regular courts of justice, viz:

Section 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the exclusive
power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute
the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided,
however, That in the event that the Commission fails to act on any complaint within four months from its filing, the
complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper
investigation and prosecution, if warranted.

xxx

Section 268. Jurisdiction of courts. - The regional trial court shall have the exclusive original jurisdiction to try and
decide any criminal action or proceeding for violation of this Code, except those relating to the offense of failure to
register or failure to vote which shall be under the jurisdictions of metropolitan or municipal trial courts. From the
decision of the courts, appeal will lie as in other criminal cases.[14]

The records did not show that a criminal complaint was filed against petitioner for the election offense of vote-
buying under Sec. 261 (a) of the Omnibus Election Code. There was also no evidence that the accessory penalty of
disqualification to hold public office under Sec. 264[15] of the same Code was imposed on petitioner by the proper
court as a consequence of conviction for an election offense.
Since there is no proof that petitioner was convicted of an election offense under the Omnibus Election Code and
sentenced to suffer disqualification to hold public office, the COMELEC, Second Division, committed grave abuse of
discretion in pronouncing that absent any showing that petitioner had been bestowed a
presidential pardon, amnesty or any other form of executive clemency, petitioner's disqualification from being a
candidate for an elective position remains.

In view of the above ruling, the second issue raised by petitioner regarding the necessity of a
presidential pardon in order for him to be able to run for an elective office need not be discussed.

Petitioner also contends that the COMELEC gravely abused its discretion in ruling that he was disqualified from
running for a mayoralty position under Sec. 40 (b) of the Local Government Code[16] for having been removed from
office as a result of an administrative case.

Petitioner's contention is meritorious.

Removal from office entails the ouster of an incumbent before the expiration of his term. [17] In G.R No. 122258,
petitioner was disqualified from continuing as a candidate for the mayoralty position in the May 8, 1995 elections.
The suspension of his proclamation was made permanent, so petitioner never held office from which he could be
removed.

In fine, therefore, the COMELEC, Second Division, committed grave abuse of discretion in disqualifying petitioner
from running for an elective position under Sec. 40 (b) of the Local Government Code in its Resolutions in SPA No.
01-050 dated May 11, 2001 and in SPA No. 07-410 dated August 28, 2007. The grave abuse of discretion attending
the Resolution in this case is tantamount to lack of jurisdiction and thus renders it a nullity, thereby allowing this
Court to grant this petition directly against the Resolution of the COMELEC's Second Division.[18]

WHEREFORE, the petition is GRANTED. The Resolution of the COMELEC, Second Division, in SPA Case No. 07-410,
promulgated on August 28, 2007, is declared NULL and SET ASIDE, and petitioner Florentino P. Blanco is held
eligible to run for an elective office.

No costs.

SO ORDERED.

NOLASCO vs. COMELEC

275 SCRA 762

Facts: Florentino P. Blanco and Eduado A. Alarilla both vied for the mayoral position of Meycauayan, Bulacan
during the election held 8 May 1995. Blanco garnered the highest number of votes. Edgardo Nolasco was elected
vice-mayor. On 9 May, Alarilla filed with the Comelec a petition to disqualify Blanco on grounds that the latter
committed acts in violation of Section 68 of the Omnibus Election Code, i.e. for giving money to influence, induce
or corrupt the voters or public officials performing election functions; for committing acts of terrorism to enhance
his candidacy; and for spending in his election campaign an amount in excess of that allowed by the Election Code
(P10 million against 97,000 registered voters). On 15 August, the Comelec disqualified Blanco on the ground of
vote-buying and ordered the Board of Canvassers of Meycauayan, Bulacan to reconvene and to determine the
winner out of the remaining qualified candidates who shall be immediately proclaimed. Blanco moved for
reconsideration while Nolasco, as vice mayor, intervened in the proceedings. Nolasco urged that as vice-mayor he
should be declared mayor in the event Blanco was finally disqualified. Both motions were denied. Hence, the
petition for certiorari.

Issue: Whether the disqualification of the mayor-elect warrants the declaration of any of the remaining qualified
mayoral candidates, upon the canvassing of votes, as mayor.

Held: In a mayoralty election, the candidate who obtained the second highest number of votes cannot be
proclaimed winner in case the winning candidate is disqualified. Permanent vacancies (i.e. 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) in the Offices of the
Governor, Vice Governor, Mayor, and Vice Mayor are governed by Section 44, Chapter 2 of the Local Government
Code of 1991 and Article 38 of the Rules and Regulations implementing the Local Government Code of 1991. Vice-
Mayor Edgardo C. Nolasco was adjudged as Mayor of Meycauayan, Bulacan in view of the disqualification of
mayor-elect Florentino P. Blanco.

SECTION 69 - Nuisance
CELESTINO A. MARTINEZ III vs. HOUSE REPRESENTATIVE ELECTORAL TRIBUNAL and BENHUR SALIMBANGON G.R.
No. 189034, January 11, 2010 Villarama, Jr., J.:

Facts: In the May 14, 2007 elections, petitioner Martinez and private respondent Salimbangon were among the
candidates for Representative in the Fourth Legislative District of Cebu Province. On March 29, 2007, Edilito C.
Martinez, a resident of Barangay Tambongon, Daan-Bantayan, Cebu, filed his certificate of candidacy for the same
position.

On April 3, 2007, Martinez filed a petition to declare Edilito C. Martinez a nuisance candidate. However, the
Commission on Elections Second Division issued its Resolution declaring Edilito C. Martinez a nuisance candidate
only on June 12, 2007 or almost one (1) month after the elections.

On July 9, 2007, Salimbangon was proclaimed winner in the congressional elections for the Fourth Legislative
District of Cebu on the basis of official results showing that he garnered sixty-seven thousand two hundred
seventy-seven (67,277) votes as against Martinez who garnered sixty-seven thousand one hundred seventy-three
(67,173) votes, or a difference of one hundred four (104) votes.

Martinez filed an election protest before the HRET based on the 300 ballots more or less with only “MARTINEZ” or
“C. MARTINEZ” written on the line for Representative which the Board of Election Inspectors did not count for
Martinez on the ground that there was another congressional candidate (Edilito C. Martinez) who had the same
surname. In its decision dated May 28, 2009, the HRET sustained the BEI in considering the ballots as stray in
accordance with Sec. 211 (1) of the Omnibus Election Code. Since the name of Edilito C. Martinez was still included
in the official list of candidates on election day (May 14, 2007), the HRET held that five thousand four hundred one
(5,401) ballots with “MARTINEZ” or “C. MARTINEZ” only written on the line for Representative were properly
denied on the ground that there was no way of determining the real intention of the voter. The HRET dismissed
the election protest, affirmed the proclamation of Salimbangon and declared him to be the duly elected
Representative of the Fourth Legislative District of Cebu, having won by a plurality margin of 453 votes. Martinez
moved for reconsideration of the Decision, but the HRET denied it by Resolution dated July 30, 2009. Hence, this
petition for certiorari under Rule 65 which seeks to nullify the decision of HRET dismissing the election protest
declaring private respondent as the duly elected Representative of the Fourth Legislative District of Cebu, and the
Resolution dated July 30, 2009 denying petitioner’s motion for reconsideration thereof.

Issue:

1. What is the legal effect of declaring a nuisance candidate as such in a final judgment after the elections?

2. Should ballots containing only the similar surname of two (2) candidates be considered as stray votes or
counted in favor of the bona fide candidate?

Held: The court finds the petition meritorious.

1. Ensconced in our jurisprudence is the well-founded rule that laws and statutes governing election
contests especially appreciation of ballots must be liberally construed to the end that the will of the
electorate in the choice of public officials may not be defeated by technical infirmities. An election
protest is imbued with public interest so much so that the need to dispel uncertainties which becloud the
real choice of the people is imperative. The prohibition against nuisance candidates is aimed precisely at
preventing uncertainty and confusion in ascertaining the true will of the electorate. Thus, in certain
situations as in the case at bar, final judgments declaring a nuisance candidate should effectively cancel
the certificate of candidacy filed by such candidate as of election day. Otherwise, potential nuisance
candidates will continue to put the electoral process into mockery by filing certificates of candidacy at the
last minute and delaying resolution of any petition to declare them as nuisance candidates until elections
are held and the votes counted and canvassed.

2. Ballots indicating only the similar surname of two (2) candidates for the same position may, in appropriate
cases, be counted in favor of the bona fide candidate and not considered stray, even if the other
candidate was declared a nuisance candidate by final judgment after the elections.

BAUTISTA vs. COMELEC

296 SCRA 480, 1998

Facts: Petitioner Cipriano “Efren” Bautista was a duly registered candidate for the position of Mayor of Navotas,
Metro Manila in the May 11, 1998 elections. A certain Edwin “Efren” Bautista also filed a certificate of candidacy
for the same position. Petitioner filed a petitioner praying that Edwin Bautista be declared nuisance candidate.
Comelec, in a resolution dated April 30, 1998, declared Edwin Bautista as a nuisance candidate and accordingly, his
name was not included in the list of candidates for mayor. Edwin Bautista filed a motion for reconsideration, which
was still pending at the date of election. During the counting of votes, separate tallies of ballots on which were
written “Efren Bautista”, “Efren”, “E. Bautista”, and “Bautista” were made by the Board of Election Inspectors. The
municipal board of canvassers refused to canvass as part of the valid votes of petitioner theses separate tallies.

Issue: Whether or not these votes should have been included to those cast for petitioner.

Held: It must be emphasized that the instant case involves a ground for disqualification which clearly affects the
voters’ will and causes confusion that frustrates the same. This is precisely what election laws are trying to protect.
They give effect to, rather than frustrate, the will of the voter. Thus, extreme caution should be observed before
any ballot is invalidated. Further, in the appreciation of ballots, doubts are resolved in favor of their validity.
A stray vote is invalidated because there is no way of determining the real intention of the voter. This is, however,
not the situation in the case at bar. Significantly, it has also been established that by virtue of newspaper releases
and other forms of notifications, the voters were informed of the Comelec’s decision to declare Edwin Bautista as a
nuisance candidate.

It is improper and strained to limit petitioner’s votes to the ballots which only indicate the name “Cipriano” when it
is of public knowledge that petitioner is also known by the appellation and nickname “Efren” which he in fact
registered as his nickname.

SECTION 72 – Effect of Disqualification

CAYAT V. COMELEC G.R. No. 163776 April 24, 2007

FACTS:

Fr.Nardo Cayat and Thomas Palileng are the only mayoralty candidates for the May 2004 elections in Buguias
Benguet.

Palileng filed a petition for cancellation of the COC of Cayat on the ground of misrepresentation. Palileng argues
that Cayat misrepresents himself when he declared in his COC that he is eligible to run as mayor when in fact he is
not because he is serving probation after being convicted for the offense of acts of lasciviousness.

Comelec, granted the petition of Palileng and Cayat filed a motion for reconsideration. Such, MR was denied
because Cayat failed to pay the filing fee and hence, it was declared final and executory.

Despite this decision, Cayat was still proclaimed as the winner and Palileng filed a petition for annulment of
proclamation. Comelec declared Palileng as the duly elected mayor and Feliseo Bayacsan as the duly elected vice
mayor.

Bayacsan argues that he should be declared as mayor because of the doctrine of rejection of second placer.

ISSUE:

WON the rejection of second placer doctrine is applicable.

HELD:

The doctrine cannot be applied in this case because the disqualification of Cayat became final and executory
before the elections and hence, there is only one candidate to speak of.

The law expressly declares that a candidate disqualified by final judgment before an election cannot be voted for,
and votes cast for him shall not be counted. As such, Palileng is the only candidate and the duly elected mayor.

The doctrine will apply in Bayacsan’s favor, regardless of his intervention in the present case, if two conditions
concur: (1) the decision on Cayat’s disqualification remained pending on election day, 10 May 2004, resulting in
the presence of two mayoralty candidates for Buguias, Benguet in the elections; and (2) the decision on Cayat’s
disqualification became final only after the elections.
Ramon Labo, Jr. vs COMELEC [211 SCRA 297;GR 105111, July
3, 1992]
Posted by Pius Morados on November 6, 2011

(Municipal Corporation, Disqualification, 2nd Highest Number of Votes)

Facts: For the second time around, believing that he is a Filipino ctizen, Ramon Labo, Jr filed his COC for mayor of
Baguio City on March 23, 1992 for the May 11, 1992 elections. Petitioner Roberto Ortega on other hand, also filed
his COC for the same office on March 25, 1992.

On March 26, 1992, petitioner Ortega filed a disqualification proceeding against Labo before the COMELEC on the
ground that Labo is not a Filipino citizen.

On May 9, 1992, respondent Comelec issued the assailed resolution denying Labo’s COC.

On May 10, 1992, respondent Comelec issued an Order which reads: Acting on the “Urgent Ex-Parte Motion for
Clarification”, filed by respondent (Labo) on May 9, 1992, the Commission resolves that the decision promulgated
on May 9, 1992 disqualifying respondent Ramon L. Labo, Jr., shall become final and executory only after five (5)
days from promulgation pursuant to Rule 18, Section 13, Paragraph (b) of the Comelec Rules of Procedure.

Accordingly, respondent (Labo) may still continue to be voted upon as candidate for City Mayor of Baguio City on
May 11, 1992 subject to the final outcome of this case in the event the issue is elevated to the Supreme Court
either on appeal or certiorari.

On May 13, 1992, respondent Comelec resolved, motu proprio to suspend the proclamation of Labo in the event
he wins in the elections for the City Mayor of Baguio.

On May 15, 1992, petitioner Labo filed the instant petition for review with prayer, among others, for the issuance
of a temporary restraining order to set aside the May 9, 1992 resolution of respondent Comelec; to render
judgment declaring him as a Filipino citizen; and to direct respondent Comelec to proceed with his proclamation in
the event he wins in the contested elections.

Petitioner Ortega argues that respondent Comelec committed grave abuse of discretion when it refused to
implement its May 9, 1992 resolution notwithstanding the fact that said resolution disqualifying Labo has already
become final and executory.

Petitioner Ortega submits that since this Court did not issue a temporary restraining order as regards the May 9,
1992 resolution of respondent Comelec cancelling Labo’s certificate of candidacy, said resolution has already
become final and executory. Ortega further posits the view that as a result of such finality, the candidate receiving
the next highest number of votes should be declared Mayor of Baguio City.

Sec. 78 of the Omnibus Election Code provides: Petition to deny due course or to cancel a certificate of candidacy
—

(e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt of a copy thereof by the
parties, be final and executory unless stayed by the Supreme Court.

Issue:

1. WON Petitioner Labo who had the highest number of votes is qualified to assume as Mayor of Baguio
City.
 2. WON disqualification of petitioner Labo entitles the candidate (Ortega) receiving the next highest number
of votes to be proclaimed as the winning candidate for mayor of Baguio City.

Held:

First Issue:

No. At the time petitioner Labo filed his petition on May 15, 1992, the May 9, 1992 resolution of respondent
Comelec cancelling his (Labo’s) certificate of candidacy had already become final and executory a day earlier, or on
May 14, 1992, said resolution having been received by petitioner Labo on the same day it was promulgated, i.e.,
May 9, 1992 and in the interim no restraining order was issued by this Court.

The resolution cancelling Labo’s certificate of candidacy on the ground that he is not a Filipino citizen having
acquired finality on May 14, 1992 constrains the SC to rule against his proclamation as Mayor of Baguio City.

Sec. 39 of the LGC provides that an elective local official must be a citizen of the Philippines. Undoubtedly,
petitioner Labo, not being a Filipino citizen, lacks the fundamental qualification for the contested office. Philippine
citizenship is an indispensable requirement for holding an elective office. The fact that he was elected by the
majority of the electorate is of no moment.

Second Issue:

No. The disqualification of petitioner Labo does not necessarily entitle petitioner Ortega as the candidate with the
next highest number of votes to proclamation as the Mayor of Baguio City.

While Ortega may have garnered the second highest number of votes for the office of city mayor, the fact remains
that he was not the choice of the sovereign will. Petitioner Labo was overwhelmingly voted by the electorate for
the office of mayor in the belief that he was then qualified to serve the people of Baguio City and his subsequent
disqualification does not make respondent Ortega the mayor-elect.

Petitioner Ortega lost in the election. He was repudiated by the electorate. He was obviously not the choice of the
people of Baguio City.

Thus, while respondent Ortega (GR No. 105111) originally filed a disqualification case with the Comelec (docketed
as SPA-92-029) seeking to deny due course to petitioner’s (Labo’s) candidacy, the same did not deter the people of
Baguio City from voting for petitioner Labo, who, by then, was allowed by the respondent Comelec to be voted
upon, the resolution for his disqualification having yet to attain the degree of finality (Sec. 78. Omnibus Election
Code).

The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible
candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate
cannot be deemed elected to the office.

Note: It’s useless to file for disqualification when the decision comes out after the election
Pablo Ocampo vs House of Representatives Electoral Tribunal
432 SCRA 144 – Political Law – Election Law – Second Placer Cannot Be Declared the Winner

In May 2001, Mario Crespo, also known as Mark Jimenez, was declared as the elected Congressman of the
6th District of Manila. Pablo Ocampo was the rival candidate who filed an electoral protest in the House of
Representatives Electoral Tribunal (HRET) alleging that Crespo’s win was due to election fraud and vote buying.
In March 2003, Crespo was declared by the HRET as ineligible for office due to lack of residence in the said district
of Manila. Due to such declaration, Ocampo then requested the HRET to declare him as the winner of the election
done in 2001 pursuant to Republic Act No. 6646 which provides that “Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted…” Ocampo
argued that the votes for Crespo should then be considered as stray votes. And that being the fact that Ocampo
received the second highest number of vote (next to Crespo, with just a margin of 768 votes), he should be
declared as the winner of the said election. The HRET denied Ocampo’s petition.

ISSUE: Whether or not Ocampo should be declared as the winner.

HELD: No. Jurisprudence has long established the doctrine that a second placer cannot be proclaimed the first
among the remaining qualified candidates in the event that the highest earner of votes is disqualified. The fact
that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for
the office to which he was elected does not necessarily give the candidate who obtained the second highest
number of votes the right to be declared the winner of the elective office. Further, Section 6 of R.A. No. 6646 and
section 72 of the Omnibus Election Code require a final judgment before the election for the votes of a disqualified
candidate to be considered “stray.” Hence, when a candidate has not yet been disqualified by final judgment
during the Election Day and was voted for, the votes cast in his favor cannot be declared stray. To do so would
amount to disenfranchising the electorate in whom sovereignty resides. The obvious rationale behind the
foregoing ruling is that in voting for a candidate who has not been disqualified by final judgment during the
election day, the people voted for him bona fide, without any intention to misapply their franchise, and in the
honest belief that the candidate was then qualified to be the person to whom they would entrust the exercise of
the powers of government.

Kare vs COMELEC
SUMMARY Moll and Ceriola were candidates for mayor. Kare was the
elected Vice Mayor. Ceriola had Moll disqualified and Comelec held
the former to be the rightful winner of the elections after
disqualifying the latter on the ground of final conviction of a crime
with imprisonment of more than 1 year. Moll argues that the
judgment wasn’t final yet since he filed a MR. Court said that his MR
didn’t suspend the period of appeal since it wasn’t directed against
the judgment of conviction. This being the case, he was disqualified
properly. When a mayoral candidate who gathered the highest
number of votes is disqualified after the election’s held, a permanent
vacancy is created, and the vice mayor succeeds to the position.
FACTS

 Moll and Ceriola were candidates for mayor of the Municipality of Malinao Albay (May 14, 2001
Elections). Moll won and Ceriola was the 2nd placer (vote difference: 987). Kare was the elected vice
mayor of the said election.

 May 17 2001: Ceriola filed a Petition to Confirm the Disqualification and/or Ineligibility of Moll to Run for
Any Elective Position on the ground that Moll had been sentenced to 6 mos of arresto mayor to 1 year
and 9 mos of prision correccional for Usurpation of Authority or Official functions (RPC 177)

 Comelec 1st Div dismissed said petition

 On reconsideration, COMELEC En Banc issued Mar 19 2003 Resolution which affirmed Moll’s
disqualification (as recommended by the provincial election supervisor of Albay) and proclaimed Ceriola
as the mayor-elect. COMELEC ruled that:

o Moll had been disqualified from being a mayoral candidae in the 2001 local election and that his
subsequent proclamation as mayor was void ab initio. He was thus disqualified from holding
office

o TC’s final judgment disqualified Moll from filing his certificate of candidacy and continued to
disqualify him from holding office. Accordingly, votes case in his favor were stray or invalid votes,
and Ceriola was adjudged the winner.

 Before Ceriola’s actual proclamation, Kare filed a petition before the SC for a Status Quo order, which was
granted.

 GR 157526: Kare seeks the nullification of the Mar 19 resolution wrt Ceriola being held as winner.

 GR 157527: Moll wants to annul the entire resolution. Cases were consolidated.

ISSUES & RATIO.

1. Should Moll be disqualified from running/holding the position of mayor? YES

Moll argues that he cannot be disqualified from running for mayor since his judgment of conviction (the basis of
his disqualification) has allegedly not attained finality. While he did not appeal the said judgment (promulgated on
May 11 1999) by filing a notice of appeal, he still filed an MR on May 28 1999 within the reglementary period.

SC: The period for perfecting an appeal is interrupted when a MR of Motion for New Trial is filed (Sec 6, Rule 122).
Moll makes it appear that his filing of an MR should have stayed the running of the period for filing an appeal.
However, what he did file was a Motion to Quash the Information; and when it was denied, he filed an MR.
Neither the Motion to Quash nor his MR was directed at the judgment of conviction. Rather, they both attacked a
matter extraneous to the judgment. Hence, they cannot affect the period of appeal granted by the ROC in relation
to the conviction. Further, Moll admitted that no regular appeal was filed. He also filed the MTQ belatedly (filed it
on day of promulgation instead of any time before entering a plea).

Since no appeal of conviction was seasonably filed by Moll, judgment against him has become final. COMELEC en
banc correctly ruled that he was disqualified from running for mayor under Sec. 40 (a) LGC i. Moll was sentenced to
suffer the penalty of 6 mos of arresto mayor to 1 year and 9 mos of prison correccional, a penalty that clearly
disqualified him from running for any elective local position.

Moll argues that the promulgation of judgment was not valid because it was done in his absence.
SC: As correctly contended by the OSG, Moll received a notice of his promulgation, in fact his counsel was present
on the day of his promulgation- to file a motion to quash. Because of his unexplained absence, promulgation of
judgment can be validly made by recording the judgment in the criminal docket and serving him a copy thereof to
his last known address or thru counsel as per Sec 6, Rule 120 of ROC.

2. If yes, who should become mayor? Ceriola or Kare? Kare.

In allowing Ceriola to be proclaimed mayor-elect, the COMELEC applied Sec. 211(24) OECi. It interpreted the
phrase “disqualified by final judgment” to mean “disqualification by a final judgment of conviction. SC has ruled in
a long line of cases that the COMELEC cannot proclaim as winner the candidate who obtained the second highest
number of votes should the winning candidate be declared ineligible or disqualified. However, COMELEC asserts
that this case falls under the exception in Sunga vs. COMELEC. Court held therein that “in the absence of a statute
which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere
belief that the candidate was qualified, they should not be treated as stray, void, or meaningless” (italics supplied).
According to the COMELEC, Sec. 211(24) OEC is a clear legislative policy contrary to the rule that the second placer
cannot be declared winner. Thus, votes cast in Cerilo’s favor are stray or invalid as per Sec. 211(24) OEC and Moll
thus obtained the highest number of valid votes.

SC: COMELEC misconstrued Sec. 211(24) by limiting it only to disqualification by conviction in a final judgment.
Read together with other provisions in the OECi , any vote cast in favor of a candidate, whose disqualification has
already been declared final regardless of the ground therefor, shall be considered stray.

More importantly, the electorate were under the belief that Moll was qualified when they voted for him
as mayor on May 2001 because it was only on March 19 2003 that the Comelec en banc resolved to disqualify Moll
from running as a mayoral candidate. There is no presumption that they agreed to the subsequent invalidation of
their votes as stray votes, in case of his disqualification. COMELEC’s finding that Moll was ineligible cannot retroact
to the date of the election and invalidate the votes.

Also, Moll was not notoriously known to the public as an ineligible candidate. Thus, there is a
presumption that the votes of those who voted for him were cast with a sincere belief that he was a qualified
candidate, and without any intention to misapply their franchise. Their votes cannot be treated as stray, void or
meaningless.

The Court pronounced that to allow the defeated and repudiated candidate to take over the mayoralty
despite his rejection by the electorate is to disenfranchise them through no fault on their part, and to undermine
the importance and the meaning of democracy and the right of the people to elect officials of their choice.

Theoeretically, the second placer could just receive one vote. It would then be absurd to proclaim the totally
repudiated candidate as the voters choice. In situations when the votes of the second placer is not numerically
insignificant and the equation changes because of the disqualification of an ineligible candidate, voters’
preferences would be so volatile and unpredictable that the results for qualified candidates would not be self-
evident.

Sec. 44 of RA7169 on permanent vacancies in the offices of the governor, vice-governor, mayor, and vice mayor
would them apply. When Moll was adjudged to be disqualified, a permanent vacancy was created for failure of the
elected mayor to qualify. In such eventuality, the duly elected vice mayor shall succeed as provided by Sec. 44

Decision: Moll’s petition denied. Kare’s petition granted.

Maquiling vs. COMELEC
Facts:

Respondent Arnado is a natural born Filipino citizen. However, as a consequence of his subsequent
naturalization as a citizen of USA, he lost his Filipino citizenship. Arnado applied for repatriation under R.A. No.
9225 before the Consulate General of the Philippines in San Francisco, USA and took the Oath of Allegianceto the
RP on 10 July 2008. On the same day an order of approval of his citizenship retention and re-acquisition was issued
in his favour. In 2009, Arnado again took his Oath of Allegiance to RP and executed an affidavit of renunciation of
his foreign citizenship. On 30 November 2009, Arnado filed his certificate of candidacy for Mayor of Kauswagan,
Lanao Del Norte. Respondent Linog Balua, another mayoralty candidate, filed a petition to disqualify Arnado and
presented a record indicating that Arnado has been using his US Passport in entering and departing the
Philippines.

COMELEC issued an order requiring the respondent to personally file his answer. After Arnado failed to answer the
petition, Balua moved to declare him in default. In 2010 election, Arnado garnered the highest number of votes
and was subsequently proclaimed as the winning candidate for Mayor. It was only after his proclamation that
Arnado filed his answer.

COMELEC first division ruled for his disqualification. Petitioner Maquiling, another candidate for mayor of
Kausawagan, and who garnered the second highest number of votes, intervened in the case and filed before the
COMELEC En Banc a motion for reconsideration claiming that the cancellation of Arnado’s candidacy and the
nullification of his proclamation, him, as the legitimate candidate who obtained the highest lawful votes should be
proclaimed as the winner. COMELEC En Banc held that it shall continue with the trial and hearing. However, it
reversed and set aside the ruling of first division and granted Arnado’s MR.

Maquiling filed the instant petition questioning the propriety of declaring Arnado qualified to run for public office
despite his continued use of a US passport, and praying that he be proclaimed as the winner in the 2010 mayoralty
race.

Issue:

Whether or not the use of a foreign passport after renouncing foreign citizenship amount to undoing a
renunciation earlier made.

Held:

Yes. The Supreme Court ruled that the use of foreign passport after renouncing one’s foreign citizenship is a
positive and voluntary act of representation as to one’s nationality and citizenship; it does not divest Filipino
citizenship regained by repatriation but it recants the Oath of Renunciation required to qualify one to run for an
elective position.

Section 5(2) of The Citizenship Retention and Re-acquisition Act of 2003 provides:

Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be
subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the
following conditions:

xxxx
(2)Those seeking elective public in the Philippines shall meet the qualification for holding such public office as
required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign before any public officer authorized to administer an oath.

xxx

Rommel Arnado took all the necessary steps to qualify to run for a public office. He took the Oath of Allegiance and
renounced his foreign citizenship. There is no question that after performing these twin requirements required
under Section 5(2) of R.A. No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003, he became eligible
to run for public office. By renouncing his foreign citizenship, he was deemed to be solely a Filipino citizen,
regardless of the effect of such renunciation under the laws of the foreign country.

However, this legal presumption does not operate permanently and is open to attack when, after renouncing the
foreign citizenship, the citizen performs positive acts showing his continued possession of a foreign citizenship.
Arnado himself subjected the issue of his citizenship to attack when, after renouncing his foreign citizenship, he
continued to use his US passport to travel in and out of the country before filing his certificate of candidacy on 30
November 2009. The pivotal question to determine is whether he was solely and exclusively a Filipino citizen at the
time he filed his certificate of candidacy, thereby rendering him eligible to run for public office.

Between 03 April 2009, the date he renounced his foreign citizenship, and 30 November 2009, the date he filed his
COC, he used his US passport four times, actions that run counter to the affidavit of renunciation he had earlier
executed. By using his foreign passport, Arnado positively and voluntarily represented himself as an American, in
effect declaring before immigration authorities of both countries that he is an American citizen, with all attendant
rights and privileges granted by the United States of America. The renunciation of foreign citizenship is not a
hollow oath that can simply be professed at any time, only to be violated the next day. It requires an absolute
and perpetual renunciation of the foreign citizenship and a full divestment of all civil and political rights
granted by the foreign country which granted the citizenship. While the act of using a foreign passport is not one
of the acts enumerated in Commonwealth Act No. 63 constituting renunciation and loss of Philippine
citizenship, it is nevertheless an act which repudiates the very oath of renunciation required for a former
Filipino citizen who is also a citizen of another country to be qualified to run for a local elective position.

When Arnado used his US passport on 14 April 2009, or just eleven days after he renounced his
American citizenship, he recanted his Oath of Renunciation that he "absolutely and perpetually renounce(s) all
allegiance and fidelity to the UNITED STATES OF AMERICA" and that he "divest(s) himself of full employment of all
civil and political rights and privileges of the United States of America."

We agree with the COMELEC En Banc that such act of using a foreign passport does not divest Arnado of his

Filipino citizenship, which he acquired by repatriation. However, by representing himself as an American citizen,
Arnado voluntarily and effectively reverted to his earlier status as a dual citizen. Such reversion was not
retroactive; it took place the instant Arnado represented himself as an American citizen by using his US passport.
This act of using a foreign passport after renouncing one’s foreign citizenship is fatal to Arnado’s bid for public
office, as it effectively imposed on him a disqualification to run for an elective local position.

The citizenship requirement for elective public office is a continuing one. It must be possessed not just at the time
of the renunciation of the foreign citizenship but continuously. Any act which violates the oath of renunciation
opens the citizenship issue to attack.

Citizenship is not a matter of convenience. It is a badge of identity that comes with attendant civil and political
rights accorded by the state to its citizens. It likewise demands the concomitant duty to maintain allegiance to
one’s flag and country. While those who acquire dual citizenship by choice are afforded the right of suffrage, those
who seek election or appointment to public office are required to renounce their foreign citizenship to be
deserving of the public trust. Holding public office demands full and undivided allegiance to the Republic and to no
other.

We therefore hold that Arnado, by using his US passport after renouncing his American citizenship, has recanted
the same Oath of Renunciation he took. Section 40(d) of the Local Government Code applies to his situation. He is
disqualified not only from holding the public office but even from becoming a candidate in the May 2010 elections.

With Arnado being barred from even becoming a candidate, his certificate of candidacy is thus rendered void from
the beginning. It could not have produced any other legal effect except that Arnado rendered it impossible to
effect his disqualification prior to the elections because he filed his answer to the petition when the
elections were conducted already and he was already proclaimed the winner.

Arnado being a non-candidate, the votes cast in his favor should not have been counted. This leaves Maquiling as
the qualified candidate who obtained the highest number of votes. Therefore, the rule on succession under the
Local Government Code will not apply.

SECTION 76
Cipriano v. COMELEC
Substantial

Issue: WON Resolution 5363 is valid

Petitioner: Deprived of due process—resolution intended to oust her from her position as SK Chairman without
any appropriate action and proceedings

Respondent:

 Invoked administrative power to enforce and administer election laws.

o COMELEC may motu proprio deny or cancel CoCs to be unqualified for the position

 Publication of Resolution 4801 governing the conduct of brgy and SK elections in 2 newspapers of general
circulation sufficient notice to candidates

Held: Resolution 5363, together with Resolution 5781, not valid

Ratio:

 As an independent constutional commission, COMELEC is clothed with 3 powers of gov’t—executive,

legislative and quasi-judicial powers.

o Aside from the powers vested by the Constitution, it also exercises other powers expressly
provided in the Omnibus Election Code (OEC), one of which is the authority to deny due course
to or cancel Certificate of Candidacy (CoC)—exercise, however, must be in accordance with
conditions set by law

 COMELEC may not, by itself, without proper proceedings, deny due course to or cancel a CoC filed in due
form. It is the duty of COMELEC to give due course to CoCs filed in due form is ministerial in character.
 o Sec. 76, OEC—ministerial duty of COMELEC to receive and acknowledge receipt

 Sec. 78, OEC allows any person to file before COMELEC a petition to deny due course to or cancel CoC on
the ground that any material representation therein is false.

o Rule 23, COMELEC Rules of Procedure—petition shall be heard summarily after due notice

 Candidate must be notified of the petition against him and should be given opportunity to present
evidence—due process requirement

 Summary proceedings—submission of position papers together with affidavits, counter-

affidavitss, and other documentary evidence in lieu of oral testimony

 When there is a need for clarification—COMELEC may allow cross-examination of

affiants

 Denial of due course or cancellation—not administrative but quasi-judicial—power rests in judgment or

discretion

o Determination of whether material representation is false or not, or determination of whether

candidate is eligible involves determination of fact—both parties must be allowed to adduce
evidence

o Must be notified of the proceedings and opportunity to refute allegations

o Not sufficient that candidate be notified of the COMELEC’s inquiry into the veracity of the
contents of his CoC, but he must also be allowed to present his own evidence to prove that he
possesses the qualifications for the office he seeks.

EDUARDO T. SAYA-ANG v. COMELEC

AZCUNA, J.:

Petitioners herein, Eduardo T. Saya-ang, Sr. and Ricardo T. Lara, were candidates for the Office of Barangay Captain
of Barangays Congan and New Aklan respectively for the July 15, 2002 Synchronized Sangguniang Kabataan (SK)
and Barangay Elections. Petitioner Saya-ang filed his certificate of candidacy in Barangay Congan on June 6, 2002.
On the other hand, petitioner Lara filed his own certificate of candidacy in Barangay New Aklan on June 8, 2002.
On July 19, 2002, a letter-report was submitted by Acting Election Officer Alim to the Law Department of the
Comelec which stated that petitioners herein are not residents of the barangays they wish to be elected in. In turn,
the Law Department of the Commission on Elections (Comelec) submitted its study to the Comelec en banc on July
9, 2002 recommending the denial of due course to the certificates of candidacy of petitioners. On the day of the
elections or on July 15, 2002, the Comelec, issued En Banc Resolution No. 5393, which essentially denied due
course to the certificates of candidacy of petitioners herein.

The pertinent portion of the assailed Resolution states:

Considering the foregoing, the Commission RESOLVED, as it hereby RESOLVES, to approve the recommendation of
the Law Department as follows:
 1. To deny due course to the Certificates of Candidacy of Romeo P. Sumayog, Sandigan Damie, James Ceasar
I. Young, Eduardo T. Saya-ang, Sr., and Ricardo L. Lara; and

2. To direct the Election Officer of Glan, Sarangani to delete their names from the Certified List of Candidates
for Barangay Kagawad and Punong Barangay of Barangays E. Alegado, Baliton, Cross, Congan, and New
Aklan, respectively.

Without prejudice to the filing of criminal cases against them as the evidence so warrants under the
circumstances.

Let the Law Department implement this resolution.

SO ORDERED.

Despite the abovementioned Resolution, petitioners were still proclaimed as winners on July 16, 2002, having
garnered the most number of votes in their respective barangays. On July 31, 2002, petitioners took their oath of
office before Alfredo L. Barcelona, Jr., the First Assistant Provincial Prosecutor of Sarangani Province.

On August 9, 2002, Pio Jose S. Joson, Deputy Executive Director for Operations of the Comelec, issued a
Memorandum for all Regional Election Directors, Provincial Election Supervisors and City/Municipal Election
Officers. This memorandum directed all election officers to delete the names of those candidates whose
certificates of candidacy were denied due course despite the fact that said denial did not arrive on time. It also
ordered the candidates concerned to desist from taking their oaths and from assuming the positions to which they
have been elected, unless the Supreme Court issued a temporary restraining order. Lastly, the said memorandum
ordered the Board of Canvassers to reconvene for the purpose of proclaiming the duly-elected candidates and
correcting the certificates of canvass and proclamation.

On August 10, 2002, the Comelec en banc promulgated Resolution No. 5584, entitled "In the Matter of the Policy
of the Commission on Proclaimed Candidates Found to be Ineligible for Being Not Registered Voters in the Place
Where They Were Elected and on the Failure/ Omission of the Board of Canvassers to Include Certain Election
Returns in the Canvass." [1]

On August 14, 2002, Acting Election Officer Alim, invoking and acting pursuant to Comelec Resolution No. 5393
and Resolution No. 5584, issued a directive commanding petitioners to cease and desist from taking their oath of
office and from assuming the position to which they were elected. He also directed the Barangay Board of
Canvassers for Barangays Congan and New Aklan to reconvene immediately and proclaim the duly-elected
candidates and to correct the certificates of canvass and proclamation.

Petitioners received the aforementioned directive on August 19, 2002. On August 21, 2002, the Comelec en
banc promulgated Resolution No. 5666 amending its Resolution No. 5584 on the basis of the approved
recommendations of Commissioner Sadain. Pertinent portions of the amended resolution state:

I.

ON PROCLAIMED CANDIDATES FOUND TO BE INELIGIBLE FOR BEING NOT REGISTERED VOTERS IN THE PLACE
WHERE THEY WERE ELECTED
xxx

For both (a) and (b), in the event that the disqualified candidate is proclaimed the winner despite his
disqualification or despite the pending disqualification case filed before his proclamation, but which is
subsequently resolved against him, the proclamation of said disqualified candidate is hereby declared
(d)
void from the beginning, with notice to the candidate concerned, even if the dispositive portion of the
resolution disqualifying him or cancelling his certificate of candidacy does not provide for such an
annulment.[2]

On September 4, 2002, Acting Election Officer Alim, using as his basis Comelec en banc Resolution No. 5666 issued
a memorandum directing the Board of Canvassers of Barangay Congan, Glan, Sarangani Province to reconvene at
his office on September 13, 2002.

Hence, the instant petition anchored on the sole assignment of error:

THAT THE PROMULGATION OF THE EN BANC RESOLUTION NO. 5393, DATED 15 JULY 2002, BY RESPONDENT
HONORABLE COMMISSION ON ELECTIONS IS PATENTLY ERRONEOUS BEING WITHOUT BASIS IN FACT AND IN LAW
AND THE ISSUANCE OF WHICH IS IN GRAVE ABUSE OF DISCRETION AMOUNTING EVEN AS IT DOES TO LACK OR
EXCESS OF JURISDICTION.[3]

At the very outset, it must be made clear that the Comelec has jurisdiction to deny due course to or cancel a
certificate of candidacy.[4]Such jurisdiction continues even after the elections, if for any reason no final judgment of
disqualification is rendered before the elections, and the candidate facing disqualification is voted for and receives
the highest number of votes, and provided further that the winning candidate has not been proclaimed or taken
his oath of office. [5] Furthermore, a decision by the Comelec to disqualify a candidate shall become final and
executory only after a period of five days:

Sec. 3. Decisions After Five Days.--- Decisions in pre- proclamation cases and petitions to deny due course to or
cancel certificates of candidacy, to declare a candidate as nuisance candidate or to disqualify a candidate, and to
postpone or suspend elections shall become final and executory after the lapse of five (5) days from their
promulgation, unless restrained by the Supreme Court.[6]

In the present case, the assailed Resolution denying due course to petitioners' certificates of candidacy was
promulgated on June 15, 2002, or on the very day of the elections. On that day, therefore, the decision of the
Comelec had not yet become final and executory since petitioners still had until June 20, 2002 to file their motion
for reconsideration. The Barangay Board of Canvassers rightly retained petitioners' names in the list of qualified
candidates and could not be faulted from counting the votes cast in favor of the petitioners. Petitioners were,
therefore, validly proclaimed as winners of the elections on June 16, 2002, having garnered the most number of
votes. On the day of the elections or on June 15, 2002, petitioners, for all intents and purposes, were still in the
running. The Resolution of respondent Comelec ordering their names to be deleted from the list of qualified
candidates only became final and executory on June 20, 2002, or five days from the promulgation thereof.

Petitioners also maintain that they were never served a copy of the assailed Resolution and were never given the
chance to present their evidence. They claim that they only knew about Resolution 5393 on August 19, 2002, when
they were served a copy of the directive issued by Acting Election Officer Alim ordering them to cease and desist
from taking their oath of office and from assuming the position to which they are elected. This allegation was not
disproved by respondent Comelec. Instead, it cites Resolution No. 4801, which was published in the Manila
Standard and Manila Bulletin on May 25, 2002, wherein it was stated that the administrative inquiry of the
Comelec on the eligibility of candidates starts from the time they filed their certificates of candidacy. The Comelec
maintains, therefore, that by virtue of the said resolution, all candidates are deemed to have constructive notice of
any administrative inquiry against them. Also, it asserts that by virtue of its administrative powers, it may motu
proprio deny or cancel, without any kind of hearing whatsoever, the certificates of candidacy of those who are
found not to be registered voters in the place where they seek to run for public office.

It is clear, however, that under Section 3, Rule 23 of the Comelec Rules of Procedure, a petition to cancel a
certificate of candidacy shall be heard summarily after due notice. The same rules also provide that when the
proceedings are authorized to be summary, in lieu of oral testimonies, the parties may, after due notice, be
required to submit their position papers together with affidavits, counter-affidavits and other documentary
evidence; and when there is a need for clarification of certain matters, at the discretion of the Commission en
banc or the Division, the parties may be allowed to cross-examine the affiants.[7]

The rules providing for the abovementioned summary hearing were mandated to accord due process of law to
candidates during elections. The right to due process is a cardinal and primary right which must be respected in all
proceedings.[8] It is the embodiment of the sporting idea of fair play, [9] the cornerstone of every democratic
society. In any proceeding, the essence of procedural due process is embodied in the basic requirement of notice
and a real opportunity to be heard.[10] Respondent Comelec's argument that petitioners have already been
constructively notified of the inquiry against them cannot be given merit. Petitioners herein were not even
informed of the administrative inquiry against them, nor were they called upon to adduce their own evidence and
to meet and refute the evidence against them. Petitioners certainly cannot read the minds of those tasked to look
into their certificates of candidacy, nor did they have any way of knowing that a proceeding had already been
instituted against them and that they were entitled to present evidence on their behalf.

Finally, the Court notes again that petitioners have already been proclaimed as the winners in the elections. They
have already taken their oaths of office and are, at present, serving their constituents in their respective
barangays. In Lambonao v. Tero, [11] the Court held that defects in the certificates of candidacy should have been
questioned on or before the election and not after the will of the people has been expressed through the ballots. It
was further held in the said case that while provisions relating to certificates of candidacy are mandatory in terms,
it is an established rule of interpretation as regards election laws, that mandatory provisions requiring certain
steps before elections will be construed as directory after the elections, to give effect to the will of the electorate.
The rationale for this principle was explained in Lino Luna v. Rodriguez,[12] where the Court said that these various
and numerous provisions were adopted to assist the voters in their participation in the affairs of the government
and not to defeat that object. When voters have honestly cast their ballots, the same should not be nullified simply
because the officers tasked under the law to direct the elections and guard the purity of the ballot did not do their
duty.

WHEREFORE, the instant petition is GRANTED. Resolution No. 5393 of the respondent Commission on Elections en
banc is SET ASIDE. No pronouncement as to costs.

SECTION 78

SALCEDO VS. COMELEC

VICTORINO SALCEDO II vs. COMMISSION ON ELECTIONS and ERMELITA CACAO SALCEDO
August 16, 1999

Facts:
This is a petition for Certiorari filed by petitioner Victorino Salcedo II seeking to reverse the earlier Resolution
issued by its Second Division on August 12, 1998.

Neptali P. Salcedo married Agnes Celiz, which marriage was evidenced by a certified true copy of the marriage
contract issued by the Municipal Civil Registrar of Ajuy, Iloilo. Without his first marriage having been dissolved,
Neptali P. Salcedo married private respondent Ermelita Cacao in a civil ceremony. Two days later, Ermelita Cacao
contracted another marriage with a certain Jesus Aguirre, as shown by a marriage certificate filed with the Office
of the Civil Registrar.

Petitioner Victorino Salcedo II and private respondent Ermelita Cacao Salcedo both ran for the position of mayor of
the municipality of Sara, Iloilo in the May 11, 1998 elections, both of them having filed their respective certificates
of candidacy However, petitioner filed with the Comelec a petition seeking the cancellation of private respondent's
certificate of candidacy on the ground that she had made a false representation therein by stating that her
surname was "Salcedo." Petitioner contended that private respondent had no right to use said surname because
she was not legally married to Neptali Salcedo. Private respondent was proclaimed as the duly elected mayor of
Sara, Iloilo.

In her answer, private respondent claimed that she had no information or knowledge at the time she married
Neptali Salcedo that he was in fact already married; that, upon learning of his existing marriage, she encouraged
her husband to take steps to annul his marriage with Agnes Celiz because the latter had abandoned their marital
home. Neptali Salcedo filed a petition for declaration of presumptive death which was granted by the court that
Neptali Salcedo and Jesus Aguirre are one and the same person; and that since 1986 up to the present she has
been using the surname "Salcedo" in all her personal, commercial and public transactions.

Comelec's Second Division ruled that since there is an existing valid marriage between Neptali Salcedo and Agnes
Celiz, the subsequent marriage of the former with private respondent is null and void. Consequently, the use by
private respondent of the surname "Salcedo" constitutes material misrepresentation and is a ground for the
cancellation of her certificate of candidacy.

However, in its en banc Resolution, the Comelec overturned its previous resolution, ruling that private
respondent's certificate of candidacy did not contain any material misrepresentation. A Motion for
Reconsideration filed by the petitioner was affirmed by the division which gives rise to the petition to review such
promulgation.

Issue:

1.Whether or not the use by respondent of the surname "Salcedo" in her certificate of candidacy constitutes
material misrepresentation under Section 78 in relation to Section 74 of the Omnibus Election Code.

Held:

Private respondent did not commit any material misrepresentation by the use of the surname "Salcedo" in her
certificate of candidacy.

A false representation under section 78 must consist of a "deliberate attempt to mislead, misinform, or hide a fact
which would otherwise render a candidate ineligible." It must be made with an intention to deceive the electorate
as to one's qualifications for public office. The use of a surname, when not intended to mislead or deceive the
public as to one's identity, is not within the scope of the provision. There is absolutely no showing that the
inhabitants of Sara, Iloilo were deceived by the use of such surname by private respondent. Petitioner does not
allege that the electorate did not know who they were voting for when they cast their ballots in favor of "Ermelita
Cacao Salcedo" or that they were fooled into voting for someone else by the use of such name.

The Court AFFIRMS the en banc Resolution of the Commission on Elections denying the petition to cancel private
respondent's certificate of candidacy.

MARUHOM vs. COMELEC G.R. No. 179430 July 27, 2009

NOVEMBER 23, 2017

FACTS:

Petitioner Jamela Salic Maruhom was a mayoralty candidate in the Municipality of Marantao, Lanao del Sur.Her
opponent, re-electionist Mayor Abinal filed before the COMELEC a Petition for Disqualification against Maruhom,
which alleged that she was a double registrant.

The COMELEC First Division found that Maruhom had two subsisting registrations, one in Marawi, and another in
Marantao and subsequently ordered the deletion of Maruhom’s name from the list of official candidates for
municipal mayor of Marantao. Aggrieved, Maruhom filed the instant Petition for Certiorari, under Rule 64 of the
Revised Rules of Court; imputing grave abuse of discretion on the part of COMELEC, for the Comelec had no
jurisdiction to declare null and void her registration as a registered voter of Marantao, Lanao el Sur and to declare
her as a double registrant.

ISSUE:

Is the challenge on Maruhom’s registration, an issue on the right to vote and, thus, beyond the COMELEC’s
jurisdiction?

RULING:

No. The Court held that present case is not about her being denied her right to register as a voter, but is all about
her making false material representations in her COC, which would warrant the cancellation of the same.

COMELEC has laid down the rule that while the first registration of any voter subsists, any subsequent registration
thereto is void ab initio. Following this, Maruhom’s earlier registration in Marawi is deemed valid, while her
subsequent registration in Marantao is void ab initio. Accordingly, Maruhom cannot be considered a registered
voter in Marantao and, thus, she made a false representation in her COC when she claimed to be one.

It must be underscored that in addition to the express jurisdiction of COMELEC over petitions for cancellation of
COCs, on the ground of false material representations, under Section 78 of the OEC, the Constitution also extends
to COMELEC all the necessary and incidental powers for it to achieve the holding of free, orderly, honest, peaceful,
and credible elections. The determination, therefore, made by the COMELEC that Maruhom’s Marawi registration
is valid, while her Marantao registration is void, is only in accord with its explicit jurisdiction, or at the very least, its
residual powers.

The Resolution of the COMELEC en banc merely defeated Maruhom’s intent to run for elective office, but it did not
deprive her of her right to vote. Although Maruhom’s registration in Marantao is void, her registration in Marawi
still subsists. She may be barred from voting or running for mayor in the former, but she may still exercise her right
to vote, or even run for an elective post, in the latter.
Coquilla vs COMELEC [385 SCRA 607; GR 151914, September 17, 2002]
(Municipal Corporation, Qualifications – Residence)

Facts: Petitioner Coquilla was born of Filipino parents in Oras, Eastern Samar, where he grew up and resided.

In 1965, he joined the US Navy and subsequently naturalized as a US citizen.

On October 15, 1998, petitioner came to the Philippines and took out a residence certificate, albeit continued
making several trips to the US.

On November 10, 2000, he took his oath as a citizen of the Philippines subsequently after his application for
repatriation was approved.

On November 21, 2000, he applied for registration as a voter of Butunga, Oras, Eastern Samar.

On February 27, 2001, he filed his COC stating therein that he has been a resident of Oras, Eastern Samar for 2
years.

On March 5, 2001, respondent incumbent mayor of Oras who was running for re-election, sought the cancellation
of petitioner’s COC on the ground that the latter had resided in Oras for only about 6 months since when he took
his oath as a citizen of the Philippines.

On May 14, 2001, petitioner garnered the highest number of votes and was subsequently proclaimed mayor of
Oras.

Issue: WON petitioner satisfied the residency requirement for the position of mayor.

Held: No. Par. 39, Chapter 1, Title 2 of the Local Government Code (RA 7160) provides that an elective official must
be a “…resident therein (barangay, municipality, city or province) for at least 1 year immediately preceeding the
day of the election…”

The term “residence” is to be understood not in its common acceptation as referring to “dwelling” or “habitation,”
but rather to “domicile” or legal residence, that is, “the place where a party actually or constructively has his
permanent home, where he, no matter where he may be found at any given time, eventually intends to return and
remain (animus manendi). A domicile of origin is acquired by every person at birth. It is usually the place where the
child’s parents reside and continues until the same is abandoned by acquisition of a new domicile (domicile of
choice).

In the case at bar, petitioner lost his domicile of origin in Oras by becoming a US citizen after enlisting in the US
Navy in 1965. From then on and until November 10, 2000, when he reacquired Philippine citizenship, he was an
alien.

LLUZ v. COMELEC G.R. No. 172840; June 7, 2007

FACTS:

Private respondent was a candidate for the post of punong barangay of Barangay 2, Poblacion, Catubig, Samar in
the 15 July 2002 Synchronized Barangay and Sangguniang Kabataan Elections. In his certificate of candidacy,
private respondent misrepresented himself as a certified public accountant (CPA) as his profession or occupation.
Private respondent won in the elections. Thus, he was charged for an election offense before the COMELEC. In his
Answer, private respondent argued that he could not be held liable for an election offense because his alleged
misrepresentation of profession was not material to his eligibility as a candidate.

ISSUE:

Is an alleged misrepresentation of profession or occupation on a certificate of candidacy punishable as an election

offense under Section 262 in relation to Section 74 of B.P. 881?

HELD:

No elective office, not even the office of the President of the Republic of the Philippines, requires a certain
profession or occupation as a qualification. For local elective offices including that of punong barangay, Republic
Act No. 7160 (R.A. 7160) or the Local Government Code of 1991 prescribes only qualifications pertaining to
citizenship, registration as a voter, residence, and language. Section 39 of R.A. 7160 states: x x x x Profession or
occupation not being a qualification for elective office, misrepresentation of such does not constitute a material
misrepresentation. Certainly, in a situation where a candidate misrepresents his or her profession or occupation in
the certificate of candidacy, the candidate may not be disqualified from running for office under Section 78 as his
or her certificate of candidacy cannot be denied due course or canceled on such ground.

PRISCILA JUSTIMBASTE v. COMMISSION ON ELECTIONS and RUSTICO B.

BALDERIAN 572 SCRA 736 (2008)
Priscila R. Justimbaste (Priscila) filed with the Leyte Provincial Election Supervisora petition to disqualify
respondent Rustico B. Balderian (Rustico) as a candidate for mayor of Tabontabon, Leyte for falsification and
misinterpretation in his applicationfor candidacy. Rustico denied Priscila‘s allegations. Rustico won and was
proclaimed as mayor. The Second Division of the Commission on Elections (COMELEC) denied the petition
for disqualification. Priscila then filed a Motion for Reconsideration to the COMELEC En Banc which subsequently
denied the same.

ISSUE:

Whether or not Rustico committed material misrepresentation and falsification in his certificate of candidacy.

HELD:

Material misrepresentation as a ground to deny due course or cancel a certificate of candidacy refers to the falsity
of a statement required to be entered therein, as enumerated in Section 74 of the Omnibus Election Code.
Concurrent with materiality is a deliberate intention to deceive the electorate as to one‘s qualifications. Priscila
asserts that private Balderian committed material misrepresentation when he stated in his certificate of candidacy
that he is a Filipino citizen and that his name is Rustico Besa Balderian, instead of Chu Teck Siao. At all events, the
use of a name other than that stated in the certificate of birth is not a material misrepresentation, as
“material misrepresentation” under Section 78 of the Omnibus Election Code refers to “qualifications for elective
office.” It need not be emphasized that there is no showing that there was intent to deceive the electorate as to
private respondent‘s identity, nor that by using his Filipino name the voting public was thereby deceived. Priscila is
reminded that a petition for disqualification based on material misrepresentation in the certificate of candidacy is
different from an election protest. The purpose of an election protest is to ascertain whether the
candidate proclaimed elected by the board of canvassers is really the lawful choice of the electorate.
 SECTION 79

PENERA VS. COMELEC

(motion for consideration)
Facts:

On 11 September 2009, the Supreme Court affirmed the COMELEC’s decision to

disqualify petitioner Rosalinda Penera (Penera) as mayoralty candidate in Sta. Monica, Surigao del Norte, for
engaging in election campaign outside the campaign period, in violation of Section 80 of Batas Pambansa Blg. 881
(the Omnibus Election Code).

Penera moved for reconsideration, arguing that she was not yet a candidate at the time of the supposed
premature campaigning, since under Section 15 of Republic Act No. 8436 (the law authorizing the COMELEC to use
an automated election system for the process of voting, counting of votes, and canvassing/consolidating the
results of the national and local elections), as amended by Republic Act No. 9369, one is not officially a candidate
until the start of the campaign period.

Issue:

Whether or not Penera’s disqualification for engaging in premature campaigning should be reconsidered.

Holding:

Granting Penera’s motion for reconsideration, the Supreme Court En Banc held that
Penera did not engage in premature campaigning and should, thus, not be disqualified as a mayoralty candidate.
The Court said –

(A) The Court’s 11 September 2009 Decision (or “the assailed Decision”) considered a
person who files a certificate of candidacy already a “candidate” even before the start of the campaign period. This
is contrary to the clear intent and letter of Section 15 of Republic Act 8436, as amended, which states that a person
who files his certificate of candidacy will only be considered a candidate at the start of the campaign period, and
unlawful acts or omissions applicable to a candidate shall take effect only upon the start of such campaign period.

Thus, applying said law:

(1) The effective date when partisan political acts become unlawful as to a
candidate is when the campaign period starts. Before the start of the campaign
period, the same partisan political acts are lawful.

(2) Accordingly, a candidate is liable for an election offense only for

acts done during the campaign period, not before. In other words, election
offenses can be committed by a candidate only upon the start of the campaign
period. Before the start of the campaign period, such election offenses cannot be
so committed. Since the law is clear, the Court has no recourse but to apply it. The forum for examining the
wisdom of the law, and enacting remedial measures, is not the Court but the Legislature.

(B) Contrary to the assailed Decision, Section 15 of R.A. 8436, as amended, does not
provide that partisan political acts done by a candidate before the campaign period are unlawful, but may be
prosecuted only upon the start of the campaign period. Neither does the law state that partisan political acts done
by a candidate before the campaign period are temporarily lawful, but becomes unlawful upon the start of the
campaign period. Besides, such a law as envisioned in the Decision, which defines a criminal act and curtails
freedom of expression and speech, would be void for vagueness.

(C) That Section 15 of R.A. 8436 does not expressly state that campaigning before the start of the campaign period
is lawful, as the assailed Decision asserted, is of no moment. It is a basic principle of law that any act is lawful
unless expressly declared unlawful by law. The mere fact that the law does not declare an act unlawful ipso facto
means that the act is lawful. Thus, there is no need for Congress to declare in Section 15 of R.A. 8436 that partisan
political activities before the start of the campaign period are lawful. It is sufficient for Congress to state that “any
unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period.”
The only inescapable and logical result is that the same acts, if done before the start of the campaign period, are
lawful.

(D) The Court’s 11 September 2009 Decision also reversed Lanot vs. COMELEC (G.R.
No. 164858; 16 November 2006). Lanot was decided on the ground that one who files a
certificate of candidacy is not a candidate until the start of the campaign period. This ground was based on the
deliberations of the legislators who explained that the early deadline for filing certificates of candidacy under R.A.
8436 was set only to afford time to prepare the machine-readable ballots, and they intended to preserve the
existing election periods, such that one who files his certificate of candidacy to meet the early deadline will still not
be considered as a candidate.
When Congress amended R.A. 8436, Congress decided to expressly incorporate the
Lanot doctrine into law, thus, the provision in Section 15 of R.A. 8436 that a person who files his certificate of
candidacy shall be considered a candidate only at the start of the campaign period. Congress wanted to insure that
no person filing a certificate of candidacy under the early deadline required by the automated election system
would be disqualified or penalized for any partisan political act done before the start of the campaign period. This
provision cannot be annulled by the Court except on the sole ground of its unconstitutionality.
The assailed Decision, however, did not claim that this provision is unconstitutional. In fact, the assailed Decision
considered the entire Section 15 good law. Thus, the Decision was self-contradictory — reversing Lanot but
maintaining the constitutionality of the said provision.

Lanot v. COMELEC
GR No. 164858 November 16, 2006

FACTS:

Henry Lanot, Vener Obispo, Roberto Peralta, Reynaldo dela Paz, Edilberto Yamat and Ram Alan Cruz, filed a
petition for disqualification against Vicente Eusebio before the COMELEC. Petitioners alleged that Eusebio engaged
in various forms on various occasions premature campaigning.

Regional Director Ladra recommended to the COMELEC the disqualification of Eusebio. The COMELEC Fist Division
adopted the findings and recommendation of the Regional Director and ordered the disqualification of Eusebio.
The resolution is immediately executory unless restrained by the Commission en banc.
On May 9, 2004, Eusebio filed a motion for reconsideration. On election day itself, Chairman Abalos enjoined
Director Ladra from implementing the resolution of the COMELEC First Division due to the motion for
reconsideration filed by Eusebio.

On May 11, 2004, the day after the elections, petitioners filed before the COMELEC en banc a motion to suspend
the counting and canvassing of votes. The COMELEC en banc partially denied the motion. It ordered the
suspension, until further orders of the Commission, the proclamation of Eusebio in the event he receives the
winning number of votes.

On May 21, 2004, the Commission en banc lifted and set aside the suspension of proclamation. Eusebio was
proclaimed City Mayor of Pasig. The Commission also annulled the order of the COMELEC First Division.

ISSUE:

Whether or not petitioner Lanot can be proclaimed and allowed to sit as mayor-elect in case of disqualification of
Eusebio.

RULING:

No. The disqualification of the elected candidate does not entitle the candidate who obtained the second highest
number of votes to occupy the office vacated. Votes cast in favor of the candidate who obtained the highest
number of votes are presumed to have been cast in the belief that he is qualified.

However, there is an exception which rests on two assumptions: that the one who obtained the highest number of
votes is disqualified and that the voters nonetheless voted for him despite knowing that he is disqualified. The
petitioners failed to prove the applicability of the exception to this case. The rule on succession shall apply. The
Vice Mayor shall be the Mayor.

SECTION 221
G.R. No. 157007 March 17, 2004

RASMIA ROMATO SALIC, petitioner,

vs.
THE COMMISSION ON ELECTIONS, and DIMNATANG L. PANSAR, respondents.

G.R. No. 157019 March 17, 2004

PAULI DIMNATANG DITUAL, A.B.M., petitioner,

vs.
THE COMMISSION ON ELECTIONS, MONABANTOG KIRAM, RASMIA SALIC, DIMNATANG PANSAR and MESUG
PALAWAN, respondents.

DECISION

TINGA, J.:

In the 2001 local elections in Butig, Lanao del Sur, two Municipal Boards of Canvassers ("MBC"), with varying
members participating, proclaimed different sets of municipal candidates as winners. The Commission on Elections
nullified the conflicting proclamations of the two boards and ordered the constitution of a new MBC.
The COMELEC action is before this Court through two consolidated petitions. The first petition, docketed as G.R.
No. 157007, is a Petition for Certiorari with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of
Preliminary Injunction1 filed by Rasmia Romato Salic ("Salic"), a candidate for municipal mayor of Butig. The second
petition, docketed as G.R. No. 157019, is likewise a Petition for Certiorari,2 filed by Pauli Dimnatang Ditual A.B.M.
("Ditual"), a candidate for municipal vice-mayor of the same town. Both petitions seek to set aside
the Resolution3 of the COMELEC Second Division ("Second Division") 4 dated 5 July 2002, which annulled the
proclamations of Salic and Ditual, as well as the Resolution5 of the COMELEC en banc6 affirming the Second
Division's Resolution.

The mayorship of Butig was contested by, among others, Salic and private respondent Dimnatang L. Pansar
("Pansar"), while the candidates for vice-mayor included Ditual and private respondent Monabantog Kiram
("Kiram"). Pursuant to COMELEC Resolution No. 4307, 7 the counting and canvassing of votes cast in Butig were, like
those in other municipalities of the province, transferred to the Provincial Capitol Complex in Marawi City.

As mandated by law,8 the canvass of municipal election returns was conducted by the MBC of Butig. However, the
proper composition of the board is a matter of controversy. The parties do not contest the designation of Musa
Macabayao ("Macabayao") and Mesug Palawan ("Palawan") as Chairman and Vice-Chairman of the board,
respectively. The dispute refers to who really was the lawful Third Member of the board. The petitioners claim that
Catambac Mimbantas ("Mimbantas") legally served as the Third Member, while private respondents insist that it
was Ismael Magarang9 ("Magarang") instead.

On 10 June 2001, Salic was proclaimed by the MBC as the duly-elected mayor of Butig, in a Certificate of Canvass
and Proclamation ("COC") signed by Chairman Macabayao and Mimbantas as Third Member. The Macabayao-
Mimbantas canvassing board also proclaimed Ditual as vice-mayor, and a set of duly-elected councilors.10 The COC
signed by Macabayao and Mimbantas was submitted to the Election Records and Statistics Division ("ERSD") of the
COMELEC on 13 June 2001 by Macabayao, in his purported capacity as Acting Election Officer of Butig. 11 This COC
was based on the returns from only thirty-six (36) out of the forty (40) precincts in Butig. The Macabayao-
Mimbantas board, on Salic's motion, excluded the returns from the other four (4) precincts. The precincts and the
grounds for the disallowance of the returns therefrom, according to the rulings of the Macabayao-Mimbantas
MBC, are as follows:

Precinct No. 1A/2A – Election return is false and obviously manufactured, the return being accomplished by a
biased Board of Election Inspectors as shown by the evidence and as it appears on said return, whose pages 1 and
2 for Local Positions have the serial number of 68090057, pages 3 and 4 have Serial Number 68090035, and page 5
with Serial Number 68090036.12

Precinct No. 7A/8A – Election return is false and obviously manufactured, the return being accomplished by a
biased Board of Election Inspectors as shown by the evidence and as it appears on said return, whose page 1 for
Local Positions have the serial number of 68090033, pages 2 and 3 have Serial Number 68090036, and page 4 with
Serial Number 68090014.13

Precinct No. 9A/10A – Election return is false and obviously manufactured, the return being accomplished by a
biased Board of Election Inspectors as shown by the evidence and as it appears on said return, whose page 1 for
Local Positions have the serial number of 68090026, pages 2 and 3 and 4 have Serial Number 68090032.14

Precinct No. 11A/12A – Election return is false, and "obviously manufactured return being accomplished by a
biased Board of Election Inspectors on the basis of ballots which are not legible being all soaked in and marred by
ink, and as show (sic) also by the evidence on records and as it appears on the said returns." 15

According to Pansar, however, the Macabayao-Mimbantas board acted without authority. He claims that at the
start of the municipal canvass on 7 June 2001, all three - Macabayao, Palawan and Magarang – sat and performed
their duties as members of the board .16 On 10 June 2001, after canvassing all the forty (40) election returns,
Macabayao declared a recess and announced the reconvening of the board on the following day. As he left,
Macabayao took with him all the election paraphernalia needed to proclaim the winners. But he did not show up
on the following day when the board met to reconvene. Upon the instruction of Datusalangit Macalaba, PES in-
charge, Palawan and Magarang continued the canvass proceedings.

On 17 June 2001, the Palawan-Magarang board issued a second COC proclaiming Pansar as the elected mayor and
a set of municipal councilors as winners different from those proclaimed by the Mambuyao-Mimbantas
board.17Inexplicably, the Palawan-Macarang board did not proclaim the winner for the position of vice-mayor. The
Palawan-Macarang COC was based on the canvass of the returns from all forty (40) precincts, including the four (4)
returns excluded by the Mambuyao-Mimbantas board. The Palawan-Macarang COC was transmitted to the
COMELEC on the same day it was issued, with the transmittal letter signed by both Palawan and Magarang.18

On 25 June 2001, Salic filed with the COMELEC a Petition,19 docketed as SPC No. 01-337, praying that the Palawan-
Magarang COC be stricken from the records for being void ab initio. Salic alleged, among others, that Mimbantas
and not Magarang was the legitimate Third Member and that the signature of Palawan in the 17 June 2001 COC
was forged.

To ascertain the true facts, the COMELEC en banc, issued Resolution No. 01-1029 on 12 July 2001,20 constituting
an Ad Hoc Committee21 "to evaluate/study and to submit comment/recommendation" relative to the election.
Thereafter, the Ad Hoc Committee issued a subpoena directing "all parties concerned" to submit their respective
position papers.22 The Committee also received several pertinent documents and memoranda which were
submitted to the COMELEC Law Department and the COMELEC ERSD pursuant to the Resolution. It conducted a
hearing which only Magarang and Mimbantas attended together with their respective counsels. 23 On 1 October
2001, the Committee submitted its findings to the COMELEC, and the matter was referred to the Second Division. 24

In the meantime, vice-mayoral candidate Kiram filed a Petition25 with the COMELEC, docketed as SPC No. 01-273,
against Ditual, the MBC and the Board of Election Inspectors (BEI), but it was dismissed by the Second Division in
an Order dated 20 September 2001.26 The Second Division noted that what Kiram had filed was a pre-proclamation
controversy and it was mooted by the proclamation of Ditual as vice-mayor. Undaunted, Kiram filed instead on 15
February 2002 a Motion for Leave to Intervene and/or to Admit Petition in Intervention (with attached Petition in
Intervention) in SPC No. 01-337.27 He sought the reconvening of the MBC to tabulate the results from all precincts,
including the returns from the four (4) controverted precincts, and thereafter proclaim the winning candidate for
vice-mayor.

On 5 July 2002, the Second Division promulgated the assailed Resolution28, which declared as a "sham" the
Macabayao-Mimbantas COC, thus nullifying the proclamations of Salic, Ditual and the eight (8) councilors who
were proclaimed therein. At the same time, the Second Division ordered the exclusion of the returns from three
(3) clustered precincts, namely Precincts No. 1A/2A, 7A/8A, and 9A/10A in the canvass of the election results for
the positions of mayor and vice-mayor, thereby nullifying and declaring illegal the Palawan-Magarang board's
proclamation of Pansar as mayor.29 The Second Division gave credence to the findings of the Ad Hoc Committee
which declared, among others, that it was Magarang, not Mimbantas, who was the duly-designated Third Member
of the MBC. Accordingly, only the Palawan-Magarang board had the authority to act as the authorized MBC. 30

The Second Division reversed the Ad Hoc Committee's recommendation and voided the Palawan-Magarang
board's proclamation of Pansar as mayor. It cited as an uncontested fact that the election returns from Precincts
No. 1A/2A, 7A/8A, and 9A/10A had varying serial numbers on the pages of the set of returns for each
precinct.31 Following Section 212 of the Omnibus Election Code, the Second Division ruled that the duly authorized
MBC should have automatically excluded the returns from the precincts in the absence of a COMELEC order to the
country. The COMELEC did not issue any such countervailing order since there was no explanation for the variance
of the serial numbers on the pages of the returns supplied by the municipal treasurer who was Palawan himself.
The MBC thus did not have any discretion but to exclude from canvass the returns with varying serial numbers.

Accordingly, the Second Division ordered that a new MBC composed of three COMELEC lawyers be constituted. 32 It
directed the new MBC to complete the Butig canvass by resorting to and canvassing the ballot box copies of the
returns from Precincts No. 1A/2A, 7A/8A, and 9A/10A, satisfying itself of the integrity of the ballot boxes prior to
opening them. Should the ballot box copies of the returns that emerged be likewise irregular for having varying
serial numbers or they are otherwise missing, the Second Division further directed the new MBC to conduct a
recount of the votes cast for mayor and vice-mayor in the controverted precincts.33

Salic filed a Motion for Reconsideration of the Second Division's Resolution but the COMELEC en banc denied it per
its Resolution of 6 February 2003, adopting in toto the dispositive portion of the Second
Division's Resolution.34Undaunted, Salic filed the present petition with this Court.

On the other hand, Ditual also felt aggrieved by the Second Division Resolution notwithstanding her claim that she
was not a party to S.P. No. 01-273. But according to the records, she filed with the COMELEC the following: (a) on 5
July 2002, a Motion with Leave of Court to Admit Motion for Reconsideration of the Resolution dated July 5
2002;35(b) on 23 July 2002, a Motion with Leave of Court to Admit Answer on the Petition for Intervention Filed by
Monabantog D. Kiram;36 and (c) on 1 October 2002, a Motion to Exclude Vice Mayor Pauli Ditual from the Effects of
the July 5, 2002 Resolution.37 Only in the last mentioned motion did she argue that jurisdiction was not acquired
over her person, stressing she was not summoned to answer the petition-in-intervention filed by Kiram.

As previously mentioned, the COMELEC en banc affirmed in toto the Second Division Resolution on 6 February
2003, merely noting therein the various pleadings filed by Ditual. Hence, she filed her own Petition for
Certiorari38with this Court, docketed as G.R. No. 157019. On 10 June 2003, the Court resolved to consolidate the
separate petitions filed by Salic and Ditual.39 Both Salic and Ditual also prayed in their respective petitions for the
issuance of a temporary restraining order (TRO) enjoining the COMELEC from enforcing its assailed resolutions.
The Court has chosen not to issue a TRO.

All the respondents in the consolidated cases, except for Palawan, filed their respective comments on the
petitions. The last pleading was filed on 14 August 2003. Given the issues, the disposal of the petitions entailed a
close examination of the records, more particularly the originals or certified photocopies of relevant documents
such as the contested election returns and the certificates of canvass. However, the records were not promptly
transmitted to the Court, and the delay prompted the Court to issue a Resolution dated 13 January 2004, directing
the COMELEC to transmit the complete records of SPC No. 01-337 within ten (10) days from receipt. The
voluminous records, consisting of sixteen (16) folders which in turn contain the total of two thousand four hundred
sixty-seven (2,467) pages, were finally transmitted to the Court on 26 January 2004. The transmitted records
include mere photocopies of the questioned election returns. The transmittal of the records was calendared in the
Court's agenda of 10 February 2004.

The issue presented by Salic's petition is whether the COMELEC committed grave abuse of discretion amounting to
lack of jurisdiction in annulling Salic's proclamation as mayor, in ordering the recount of ballots in the three (3)
excluded precincts, and in failing to exclude the returns from Precincts No. 11A/12A. On the other hand, Ditual's
petition asserts that the COMELEC had no jurisdiction to annul her proclamation as vice-mayor, as she had never
been served summons by the poll body.

We shall first resolve Salic's petition. To determine who were the legitimate members of the MBC, we refer to
Republic Act No. 6646.40 Section 20 thereof delineates the qualifications of the members of the municipal board of
canvassers, to wit:
Sec. 20. Board of Canvassers. – There shall be a board of canvassers for each province, city and municipality as
follows:

(c) Municipal Board of Canvassers. – The municipal board of canvassers shall be composed of the election registrar
or a representative of the Commission, as chairman, the municipal treasurer, as vice-chairman, and the most
senior district school supervisor or in his absence a principal of the school district or the elementary school, as
members. (emphasis supplied)

It is undisputed that the most senior district school supervisor, DECS District Head Babaino P. Macadato, had
inhibited himself from serving on the MBC by reason of his relationship to some local candidates. 41 Thus, the
question arose as to whom Macadato had designated in his stead, Mimbantas or Magarang? The law explicitly
prescribes the minimum qualifications of who may sit as the substitute Third Member of the MBC in the absence
of the most senior school district supervisor. The substitute must be a principal of the school district or the
elementary school. The assailed Resolution made a factual finding that Mimbantas was not a principal, but an
ordinary elementary public school teacher.

As admitted by Mimbantas herself in her testimony before the Ad Hoc Committee, she is not a principal of the
school district or the elementary school but an Elementary Public School Teacher I. Thus, her designation by the
District In-Charge to the Butig MBC, though unrebutted, is null and void. 42

Salic does not refute the finding and there is no compelling reason for the Court to overturn it. Clearly then,
Mimbantas was not qualified to sit on the MBC, even assuming she was designated by the DECS District-In-Charge.
The personality of the designating authority is not even relevant in the case of Mimbantas, as she does not possess
the minimum qualifications as defined by law. If the law prescribes qualifications for appointment to a public
office, the appointee must possess such statutory qualifications to make the appointment valid. 43

Consequently, the Macabayao-Mimbintas COC proclaiming Salic as mayor is void. The only valid signature thereon
is that of Chairman Macabayao's, but he alone cannot bind or speak for the entire MBC. 44

On the other hand, the COMELEC found that Magarang was the Acting Principal of Nanagun National High School,
a position which made him qualified under the law to sit in the MBC.45 Further, as found by the Ad Hoc Committee,
a memorandum from Macadato dated 9 May 2001 explicitly directed Magarang to sit in the MBC. 46 Again, Salic
does not dispute Magarang's appointment. She claims though that Magarang had signed an Indorsement dated 7
May 2001 wherein he disqualified himself from sitting in the MBC since his cousins were candidates for the
municipal council.47 Magarang denied ever having signed such indorsement, claiming his signature therein was
forged.48Neither the Ad Hoc Committee nor the COMELEC commented on this particular allegation. But suffice it to
note that they separately concluded that Magarang was qualified to sit in the MBC, as he indeed in fact performed
the duties of a member of the MBC. Thus, there is dearth of factual basis to support the petitioners' submission
that the COMELEC committed grave abuse of discretion in finding that Magarang was the lawful MBC Third
Member.

The Court likewise cannot ignore the submission of the Ad Hoc Committee imputing serious irregularities on the
part of the Macabayao-Mimbantas board. The Committee made the following observations on the Statement of
Votes (SOV), thus:

The attention of the Honorable Commission En Banc is respectfully invited to the Statement of Votes (SOV) signed
and submitted by E.O. Musa Macabayao and Catambac Mimbantas particularly to the alleged winning candidates
for Sangguniang Bayan members, namely: Palala Saman B., Coasain Senaida M., Hasim Gubar, Anawal Mustapha,
and Datu Kunung Namraida and which were included in the Certificate of Canvass and Proclamation of Rasmia
Romato Salic as they all contained erasures indicative of tampering to make it appear that they won in the election
but candidates Canacan Cali Casimun Caseron and Panolong Taha D., who garnered votes of 670 and 613,
respectively, and whose votes are higher than candidates Hashim Gubar, Anawal Mustapha and Datu Kunug
Namraida, whose votes are 583, 544 and 535 respectively, were not included in the Certificate of Canvass and
Proclamation of the Winning Candidates in the COC of Rasmia Romato Salic. It is crystal clear as the water that E.O.
Musa Macabayao and Catambac Mimbantas tampered the Statement of Votes (SOV) which should be disregarded
by the Honorable Commission and should be treated as a mere scrap of paper. 49

The Court examined the SOV adverted to and the observations of the Committee are indeed borne out by the
document, at it contains several superimpositions and erasures that taint the veracity of the document.

The COMELEC, however, nullified the proclamation of Pansar as mayor on the ground that the Palawan-Magarang
COC failed to exclude the election returns from Precincts No. 1A/2A, 7A/8A, and 9A/10A. The individual pages of
the set of returns for each of the precincts contain varying serial numbers. For that reason, the COMELEC ruled
that they should have not been canvassed as mandated by Section 212 of the Election Code. Accordingly, the poll
body ordered the constitution of a new MBC, composed of COMELEC lawyers, as well as the use of the ballot box
copies of the returns in the canvass by the new board.

Salic agrees with the COMELEC on the exclusion of the returns from Precincts No. 1A/2A, 7A/8A and 9A/10A on the
ground that they bear varying serial numbers in contravention of Section 212 of the Omnibus Election Code.
However, she does not agree that recount of the ballots is the proper remedy, insinuating that not just the returns
but the ballots themselves are tainted because members of the BEI participated in the perpetration of the
electoral irregularities in the precincts. She further claims that the returns from Precincts No. 11A/12A should also
be excluded because of the irregularities committed by the BEI.50 Pansar, for his part, maintains that the returns
should not be excluded but submits at the same time that a recount is the most definitive mode of ascertaining the
true results.51

Based on the SOV signed by the Palawan-Magarang board, it is apparent that the exclusion of the returns from the
four (4) contested precincts would greatly benefit Salic. The vote tallies reveal that Salic received a
disproportionately low number of votes in the precincts, compared to Pansar.52 But this fact alone does not
conclusively establish the commission of irregularities, much more provide legal basis for excluding the returns
from the precincts. Indeed, there could be a plausible explanation for her receiving relatively fewer votes in the
precincts. Hence, there must be a legal justification for excluding the returns from the precincts.

Such legal justification exists for the exclusion of the returns from Precincts No. 1A/2A, 7A/8A and 9A/10A. Section
212 of the Omnibus Election Code is clear and specific on how the returns such as those from the three (3)
precincts should be treated. The penultimate paragraph of the Section is pointedly instructive, viz:

Any election return with a separately printed serial number or which bears a different serial number from that
assigned to the particular polling place concerned shall not be canvassed. This is to be determined by the board of
canvassers prior to its canvassing on the basis of the certification of the provincial, city or municipal treasurer as to
the serial number of the election return assigned to the said voting precinct, unless the Commission shall order in
writing for its canvassing, stating the reason for the variance in serial numbers.

The COMELEC states the reason for the rule in the assailed Order:

Where the law outrightly (sic) and explicitly DIRECTS the board of canvassers to EXCLUDE election returns when
the serial number appearing in the election return is different from that assigned to the precinct concerned, and
necessarily, when there is a variance in the serial numbers of the pages of one set of election returns, the
presumption of regularity in the due execution and preparation of the election return is entirely demolished, such
that the reverse is the evidentiary norm, i.e., said election returns are presumed MANUFACTURED and therefore
treated as falsified documents unless proven otherwise through an explanation of the legal custodian and
distributor of the election returns.53
The exclusion of the election returns from the three (3) precincts is warranted and, more importantly,
uncontroverted. None of the parties has posed any objection to the move. Salic, however, maintains that the
return from Precincts No. 11A/12A should be excluded as well, alleging that the BEI members of the precinct
participated in illegal substitute voting in the precinct. Surprisingly, the Solicitor General, as counsel for the
COMELEC, agrees with Salic also on the exclusion of the return from Precincts No. 11A/12A.54 The Court, however,
is unable to agree that the COMELEC committed grave abuse of discretion in ordering the inclusion of the return
from Precincts No. 11A/12A in the canvass.

The evidence presented by Salic for the exclusion of the return from Precincts No. 11A/12A consists of a
"certification" purportedly signed by Election Officer Taha Casidar, and a handwritten "certification" allegedly
executed by the members of the Board of Election Inspectors for Precincts No. 11A/12A. The COMELEC, and before
it, the Ad Hoc Committee chose not to consider the "certifications," and the Court cannot fault them for having
done so. On their faces, the "certifications" appear as unauthenticated. Assuming that they are genuine writings
issued by public officers, the rule is that public documents do not constitute prima facie evidence of the facts
therein stated, unless they are evidenced by an official publication thereof or by a copy attested by the officer
having the legal custody of the record or by his deputy.55 There is no such proof of official record; thus, the
"certifications" must be considered private and not public documents. 56 No evidentiary value can be accorded
private documents in the absence of collateral proof of due execution and genuineness thereof. 57 Not being a trier
of facts, the Court has to accord great respect to the factual findings of the COMELEC, including its appreciation of
evidence before it.58

The only basis for excluding the four (4) questioned election returns is the discrepancy in the serial numbers on the
pages thereof and not, as Salic claims, the alleged participation of the BEI members in the commission of election
frauds. The claim is unproven and thus bereft of merit. The very case59 Salic cites in her petition provides the
unequivocal standard that there must be "unrebutted clear and convincing evidence before the COMELEC that not
only did the inspectors not comply with the duty required of them by law but that serious defects shown by the
voting records amounting to falsification thereof could not have happened without the active participation of the
inspectors themselves."60 There is no such "unrebutted clear and convincing evidence" in this case.

The COMELEC directed the utilization of the ballot box copies of the election returns from the contested precincts
for the purpose of completing the canvass and, as an alternative, the recount of the votes cast in the precincts in
the event the pages of the returns are likewise found to be have varying serial numbers. This is the procedure laid
down in Section 235 of the Omnibus Election Code in situations where the election returns appear to be tampered
with or falsified.61 As the COMELEC First Division noted, Section 212 of the Omnibus Election Code does not
explicitly provide for a remedy where the pages of the election returns contain varying serial numbers which is the
situation governed by the Section. But the silence of the Section does not signify any legislative intent to
disenfranchise the voters of the precincts in question. The procedure laid down in Section 235 may also apply to
the returns whose pages bear dissimilar numbers since such returns also appear to be unauthentic, such as those
with varying serial numbers.

In all, Salic's petition must fail as it is unable to demonstrate any grave abuse of discretion on the part of the
COMELEC.

On the other hand, Ditual's position assumes a different thrust. She argues that the COMELEC's nullification of her
proclamation as vice-mayor violated her rights to due process and equal protection, stressing that she was not a
party to COMELEC SPC No. 01-337, wherein the Second Division issued the assailed resolution annulling the
canvassing board's proclamation of her as the winning vice-mayoral candidate. The mere filing by opposing
candidate Kiram of a motion to intervene in SPC No. 01-337, Ditual points out, did not ipso facto compel her to file
a responsive pleading before the COMELEC. Under the COMELEC Rules of Procedure, 62 the allowance of a motion
for intervention always depends upon the discretion of the COMELEC whose task is to evaluate first whether
intervention is proper. Certainly, it is only after the COMELEC grants the motion to intervene that it may acquire
jurisdiction over the party-intervenor. The fact that Ditual was served a copy of the Petition for Intervention by
Kiram's counsel is inconsequential considering that the COMELEC has not acted upon, much more granted, the
motion to intervene.

However, jurisdiction over the person may be waived either expressly or impliedly. 63 In filing a Motion With Leave
of Court (sic) To Admit Answer on the Petition for Intervention filed by Monabantog D. Kiram, on 23 July 2002,
Ditual placed herself under the COMELEC's jurisdiction. That is the logical consequence of her plea before the poll
body to admit her Answer to Kiram's Petition for Intervention. It is of no moment that, as Ditual claims, she caused
the filing of that pleading "in sheer panic," or through another lawyer. 64 The filing of the motion evinces Ditual's
clear intention to submit himself to the jurisdiction of the COMELEC. Now, she is estopped from claiming
otherwise.

There is another compelling reason for the affirmance of the COMELEC's annulment of Ditual's proclamation.
Ditual draws her supposed right to public office from her proclamation by the Macabayao-Mimbantas board. But
as, we declared earlier, it was illegally constituted and as such its acts and declarations are null and void. As
Ditual's claim to the vice-mayoralty has emanated from an illegal source, evidently it cannot be sustained.65

One final note. For no apparent reason, the Palawan-Magarang board refused to proclaim a winning vice-mayoral
candidate. Worse, the parties and even the COMELEC seem to ignore that fact, as if the issue would fade away by
pretending the anomaly had not existed. While the Macabayao-Mimbantas board canvassed the returns for vice-
mayor and proclaimed a winning candidate, its acts however are void. On the other hand, a perusal of the SOV
prepared by the Palawan-Magarang board reveals that it crossed out all the entries of votes cast for all the vice-
mayoral candidates. Even curiouser is the fact that the Palawan-Magarang board tabulated the votes cast for
Ditual in only half of the forty (40) precincts, not bothering to write down the number of votes cast for Ditual in the
other twenty (20) precincts. Apart from per se smacking of irregularity, the acts reveal a deliberate intent on the
Palawan-Magarang board's part to frustrate the will of the Butig electorate. The proclamation of all the winning
candidates in the municipal elections is a ministerial duty 66 of the canvassing board.

As the body mandated by the Constitution to enforce and administer all laws relative to the conduct of elections is
the bounden duty of the COMELEC to ensure that the will of the electorate prevails. However, as of now there is
no basis for the proclamation of the winning candidate for vice-mayor. The COMELEC decided to limit the canvass
of the election returns from the four (4) contested precincts. In order to determine the winning vice-mayoral
candidate, however, it is necessary and proper for the new Butig MBC to recanvass the returns for vice-mayor in all
the forty (40) precincts of the municipality.67

WHEREFORE, the consolidated Petitions are DISMISSED. The assailed COMELEC Resolutions are AFFIRMED with the
MODIFICATION that the newly-constituted Municipal Board of Canvassers of Butig, Lanao del Sur, is ordered to
conduct also a recanvass of the election returns from all the forty (40) precincts of the Municipality with respect to
the position of vice-mayor, complete the same and the canvass of the returns for the position of mayor, and
proclaim the duly elected mayor and vice-mayor of Butig, Lanao del Sur, within five (5) days from receipt hereof.

This Decision is declared final and immediately executory.

SO ORDERED.
 SECTION 241

G.R. No. 150799 February 3, 2003

IN THE MATTER OF THE PETITION TO EXCLUDE ELECTION RETURNS CONTAINED IN NINE (9) BALLOT BOXES, ETC.

AMELITA S. NAVARRO, petitioner,

vs.
COMMISSION ON ELECTIONS, CITY BOARD OF CANVASSERS OF SANTIAGO CITY,
ISABEL and JOSE C. MIRANDA, respondents.
x--------------------------x

AMELITA S. NAVARRO, petitioner,

vs.
THE MEMBERS OF THE TASK FORCE, NAMELY: ATTY. ARMANDO C. VELASCO, ATTY. JULIUS TORRES And ATTY.
CESAR M. TORRADO, and THE NEW MEMBERS OF THE BOARD OF CANVASSERS NAMELY: ATTY. JOSSLYN DE
MESA (Chairman), ATTY. WANDA TALOSIG (Member), ATTY. NELIA AUREUS (Member), as constituted Under
Resolution No. 4990 promulgated On 28 June 2001, respondents.

DECISION

CARPIO-MORALES, J.:

Before this Court is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court which seeks
to set aside the Commission on Elections (COMELEC) En Banc Resolution 1 denying petitioner’s petition for
exclusion of election returns.

The antecedent facts of the case are as follows:

Amelita S. Navarro (petitioner) and Jose C. Miranda (private respondent) were candidates for mayor of Santiago
City, Isabela in the May 14, 2001 elections.2

On May 15, 2001, the City Board of Canvassers (BOC) convened for the canvassing of the election returns. 3 Upon
opening of the envelope containing the first return, counsel for petitioner objected on the ground that the return
was not properly sealed in accordance with the Omnibus Election Code. 4 Also alleging that in fact 95% of the
returns in the first ballot box was not properly sealed, petitioner objected to the inclusion thereof. 5

The following day or on May 16, 2001, petitioner filed before the BOC a petition 6 to exclude the election returns
contained in 9 ballot boxes on the ground that they were not secured with the required 3 padlocks. 7 On account of
the filing of such petition, the BOC suspended the canvassing.8

By Decision of May 19, 2001,9 the BOC denied the petition to exclude the election returns contained in the
questioned 9 ballot boxes.

Petitioner appealed10 to the COMELEC the BOC Resolution denying her petition for exclusion of election returns
contained in the contested ballot boxes.
In the meantime, the BOC declared the formal adjournment of the canvassing proceedings. The winning
candidates for local positions, however, were not proclaimed in view of the pending appeal of petitioner with the
COMELEC.11

By Resolution of June 6, 2001,12 the COMELEC En Banc ordered the BOC to complete the canvassing of election
returns and proclaim all winning local candidates in Santiago City before June 30, 2001. Pursuant to said
resolution, the BOC proclaimed on July 4, 2001 the winning local candidates of Santiago City including herein
respondent Miranda who was proclaimed city mayor.13

By Resolution of July 9, 2001,14 the COMELEC Second Division, finding that "the allegations of the appeal [of
petitioner from the BOC Resolution denying the exclusion of the election returns contained in the contested ballot
boxes] do . . . not raise a genuine pre-proclamation controversy" as she was questioning "the condition of the
ballot boxes", denied petitioner’s appeal. Her motion for reconsideration was likewise denied by the COMELEC En
Banc.

Hence, the present petition, petitioner alleging that:

"THE RESPONDENT COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN IT RULED THAT SECURING THE BALLOT BOXES CONTAINING THE ELECTION RETURNS AND
THE ABSENCE OF THE REQUIRED PADLOCKS THEREIN ARE NOT PART OF THE PROCEDURE OF THE CBOC. 15 and

THE RESPONDENT COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT RULED THAT PROCLAMATION MAY BE MADE PENDING APPEAL." 16

The issues to be resolved are thus as follows:

1. Whether the lack of the required number of padlocks on the ballot boxes containing the election returns is a
proper issue in a pre-proclamation case; and

2. Whether a proclamation may be made pending appeal from the BOC Resolution denying the exclusion of
election returns.

Section 243 of the Omnibus Election Code enumerates the issues that may be raised in a pre-
proclamationcontroversy, to wit:

a) Illegal composition or proceeding of the board of canvassers;

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

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

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

The enumeration is exclusive.17

It is petitioner’s contention that "proceeding" as used in paragraph (a) of the above-cited provision refers to the
entirety of the steps that have to be done by the BOC from the time it is created to constitute a Reception and
Custody Group up to the time it has completed the canvass and proclaimed a winner. 18 Petitioner thus concludes
that the BOC failed to comply with COMELEC En Banc Resolution No. 3848 otherwise known as the "General
Instructions for Municipal/ City/ Provincial Board of Canvassers" in connection with the May 14, 2001 national and
local elections, the pertinent provisions of which are:

"SEC. 21 Safekeeping of transmitted Election Returns or Certificate of Canvass. – The Board shall place the
Election Returns/ Certificate of Canvass in ballot boxes that shall be locked with three padlocks and one serially
numbered self-locking metal seal. The members of the Board shall keep a key to the three padlocks. The serial
number of every metal seal used shall be entered in the minutes.1awphi1.nét

The said ballot boxes shall be kept in a safe and secured room before, during and after the canvass. The room shall
be locked with three padlocks with the keys thereof kept by each member of the Board." (Emphasis in the
original).

xxx

"SEC. 25 Canvassing Procedure. – The Board shall comply with the following rules: (Emphasis in the original).

xxx

b) The Reception and Custody Group shall, after recording all the data required under Sec. 23 hereof, place all
envelopes containing Election Returns/Certificate of Canvass received by it inside an empty ballot box.

When the ballot box is already full or when there is no more Election Returns/Certificate of Canvass to be received,
the Reception and Custody Group shall close the ballot box and lock the same with padlock and metal seal. The
Reception and Custody Group shall submit the locked ballot box to the Board, for assignment to the Canvassing
Committee, if any, together with the list of precinct numbers or city/municipality of the Election Returns/
Certificate of Canvass contained therein. For this purpose, the Reception and custody Group shall maintain a
record of the Election Returns/ Certificate of Canvass submitted to the Board."

xxx

"SEC. 26 Adjournment/ suspension of canvass. –A. In case of adjournment or suspension of canvass: (Emphasis in
the original).

xxx

c) The remaining unopened envelopes and Statement of Votes containing the page partial total shall be placed in
the ballot box provided for the purpose for which shall be locked with three padlocks and self-locking metal seals.
The members of the Board shall keep the keys to each padlock.

xxx

B. Upon resumption of the canvass:

a) The secretary of the Board shall verify and enter in the minutes of the three padlocks and the metal seal, as well
as its serial number.

x x x"

Continuing, petitioner argues that when the BOC failed to comply with the procedure prescribed by the COMELEC,
the proceedings before it became illegal and its illegality was a proper issue in a pre-proclamation controversy.

This Court is not persuaded. Non-compliance by a BOC of the prescribed canvassing procedure is not an "illegal
proceeding" under paragraph (a) of Section 243 of the Omnibus Election Code, given the summary nature of a pre-
proclamation controversy, consistent with the law’s desire that the canvass and proclamation be delayed as little
as possible.19 A pre-proclamation controversy is limited to an examination of the election returns on their
face and the COMELEC as a general rule need not go beyond the face of the returns and investigate the alleged
election irregularities.20

Petitioner’s allegation that the absence of the required number of padlocks puts into question the integrity of the
election returns fails, she not having alleged nor proved that the election returns showed on their face tampering
or alteration.

The case of Baterina, et al. v. COMELEC21 is, contrary to the contention of petitioner, applicable to the case at bar.
In Baterina, the therein petitioners contested the legality of the proceedings before the BOC, questioning "the
failure to close the entries with the signatures of election inspectors; lack of inner and outer paper seals;
canvassing by the BOARD of copies not intended for it; lack of time and date of receipt by the BOARD of election
returns; lack of signatures of petitioners’ watchers; and lack of authority of the person receiving the election
returns." Held this Court:

"While the aforesaid grounds may, indeed, involve a violation of the rules governing the preparation and delivery
of election returns for canvassing, they do not necessarily affect the authenticity and genuineness of the subject
election returns as to warrant their exclusion from the canvassing. The grounds for objection to the election
returns made by petitioners are clearly defects in form insufficient to support a conclusion that the election
returns were tampered with or spurious." (Underscoring and emphasis supplied).l^vvphi1.net

The ground raised by herein petitioner partakes of the nature of those raised in Baterina.

In any event, as correctly observed by the COMELEC, petitioner did not adduce substantial and convincing
evidence to support her objection22 to the inclusion of the contested returns. She merely posited that since the
contested ballot boxes did not have the required number of padlocks, the returns were exposed to tampering,
substitution, alteration and switching.23

As to the contention that the proclamation of private respondent is null and void, it having been made by the BOC
during the pendency at the COMELEC Second Division of petitioner’s appeal from the BOC’s denial of her petition
for exclusion of the returns24 in the questioned ballot boxes, this Court finds no error, let alone grave abuse of
discretion on the part of the COMELEC En Banc which ordered the proclamation. Petitioner’s argument that this is
a violation of Republic Act 7166, specifically Section 20 thereof which reads:

"Section 20. Procedure in Disposition of Contested Election Returns. –

xxx

(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 in violation
hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election.",

is without merit. As correctly ruled by the COMELEC, petitioner’s reliance on said Section is misplaced. 25 The
Section applies only where the objection deals with a pre-proclamation controversy, not where, as in the present
petition, it raises or deals with no such controversy.

WHEREFORE, the petition is DISMISSED for lack of merit.

Costs against petitioner.

SO ORDERED.
NANCY SORIANO BANDALA, petitioner, vs. COMMISSION ON ELECTIONS, NEW
BOARD OF CANVASSERS FOR OROQUIETA CITY and ALEJANDRO G.
BERENGUEL, respondents.
DECISION

SANDOVAL-GUTIERREZ, J.:

Election cases involve not only the adjudication of the private interests of rival candidates, but also the paramount
need of dispelling the uncertainty which beclouds the real choice of the electorate with respect to whom shall
discharge the prerogatives of the offices within their gift. [1]

Thus, election cases are imbued with public interest. Laws governing election contests must be liberally construed
to the end that the will of the people in the choice of public officials may not be defeated by mere technical
objections.[2]

Before us is a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, assailing the
Resolution[3] dated August 14, 2003 rendered by the Commission on Elections En Banc in SPC No. 01-277, entitled
Alejandro G. Berenguel, Candidate for City Mayor, Oroquieta City vs. Board of Canvassers, Oroquieta City and
Nancy Soriano Bandala, Candidate for City Mayor, Oroquieta City.

The antecedents of the present petition are as follows:

Nancy Soriano Bandala, herein petitioner, and Alejandro G. Berenguel, herein respondent, were mayoralty
candidates in Oroquieta City, Misamis Occidental during the May 14, 2001 national and local elections.

During the canvass of the election returns conducted by the City Board of Canvassers of Oroquieta City,
respondent objected to the inclusion of eighty (80) election returns on the following grounds: (1) that seventy-one
(71) election returns were not secured with inner paper seals; (2) that seven (7) election returns do not indicate
the party affiliation of the watchers-signatories; and (3) that two (2) election returns have missing pages which
contain the list of the local city candidates.

In an Omnibus Ruling dated May 19, 2001, the City Board of Canvassers overturned the objection of respondent
and included in its canvass the contested election returns.

On June 30, 2001, petitioner was proclaimed the duly elected mayor of Oroquieta City.

Upon appeal, the Second Division of the Commission on Elections (COMELEC) issued a Resolution dated September
5, 2002 affirming the Omnibus Ruling of the City Board of Canvassers, holding that:

Lack of inner seal of an election return does not necessarily mean that the same is spurious and/or was tampered
with. Such tampering, or its being spurious must appear on the face of the election return itself. It is the ministerial
function of the board of canvassers to count the results as they appear in the returns which on their face do not
reveal any irregularities or falsities. [Cf. Balindong vs. Commission on Elections, 27 SCRA 567]

In the canvassing of election returns, the Board of Canvassers, which is an ad hoc body, need not look beyond or
behind the returns or do an act which would necessitate the piercing of the returns and the presentation of
evidence aliunde. [Cf. Usman vs. Commission on Elections, 42 SCRA 667]
Significantly, we observe that what the petitioner has presented were just affidavits mostly executed by his
supporters, the nature of which has been ruled by the Supreme Court as self-serving. [Casimiro vs. COMELEC, 170
SCRA 627] We cannot just rely on this kind of evidence because what is at stake is the paramount interest of the
electorate.

Finally, our General Instructions for the Board of Election Inspectors (BEI) [COMELEC Resolution No. 3742] does not
require the indication by the poll watchers of their respective political party/candidate being represented. What
the rule instructs is this:

SEC. 45. Preparation of election returns and tally board. The boards shall prepare in their own handwriting the
election returns and tally board simultaneously with the counting of votes in their respective polling places. The
election returns shall be prepared in seven (7) copies. x x x

After all the ballots have been read:

a) x x x

d) The watchers if any, shall affix their signatures and imprint their thumb marks on the right hand portion of the
election returns and the tally board; and

xxx

Clearly, nothing in the afore-quoted rule requires the poll watcher to indicate the party/candidate he represents.[4]

Respondent then filed with the COMELEC en banc a motion for reconsideration.

On August 14, 2003, the COMELEC en banc promulgated a Resolution reversing and setting aside the Second
Divisions Resolution. The dispositive portion of which reads:

ACCORDINGLY, the Commission en banc hereby renders judgment to:

1. EXCLUDE the one hundred one (101) election returns found without the inner paper seals enumerated in the
Canvassing Report of the City Board of Canvassers of Oroquieta City dated 24 May 2001, from the canvass;

2. NULLIFY the proclamation of Oppositor Nancy Soriano Bandala made on 30 June 2001;

3. CONSTITUTE a New City Board of Canvassers for Oroquieta City composed of Atty. Nelia Aureus as Chairman;
Atty. Allen Francis Abaya as Vice-Chairman; and, Atty. Norina Tangaro as member-Secretary;

4. DIRECT the City Election Officer of Oroquieta City to BRING to the Commission at Manila all the election returns
and other election documents subject of and pertaining to the canvass made by the Board and TURN-OVER the
same under receipt to the New City Board of Canvassers for Oroquieta City; and,

5. DIRECT the New City Board of Canvassers for Oroquieta City to CONVENE with notice to the parties, upon finality
of this Resolution, CANVASS the election returns and, thereafter, PROCLAIM the winning candidate for Mayor of
Oroquieta City.

6. The aforenamed BEIs, with the exception of the BEI of Precinct No. 134A of Barangay Dolipos Alto, composed of
Catalina J. Bajade as Chairman, Emma J. Aganos as Poll Clerk, and Rosenda P. Baloncio as Third Member and the
Chairperson, Margie B. Lamparas of the BEI of Precinct No. 145A1 of Barangay Upper Lamac, are recommended to
be charged administratively before the Department of Education.
7. Atty. Francisco G. Pobe is hereby suspended from Office with forfeiture of salary from the promulgation of this
resolution until after the lections of 10 May 2004 with stern warning that repetition of the same or similar offense
will be dealt with more severely.

8. The Law Department, this Commission, is hereby DIRECTED to file the appertaining information for violation of
Section Z (15) and (21), and Section 212, both of the Omnibus Election Code (Batas Pambansa Blg. 881) against
these BEIs and Mr. Filoteo C. Alngohuro, Chairman of the City Board of Canvassers of Oroquieta City, there being
strong prima facie case against them.

SO ORDERED.

Hence, this petition for certiorari with prayer for issuance of a temporary restraining order and/or writ of
preliminary injunction. On August 27, 2003, we issued a status quo ante order.

Petitioner contends that the COMELEC en banc acted with grave abuse of discretion (1) in excluding 101 election
returns based on a formal defect of lack of inner paper seals in the election returns; and (2) in nullifying her
proclamation as the winning candidate for mayor of Oroquieta City.

The petition is impressed with merit.

May the ground of lack of inner paper seals in the election returns be considered a proper issue in a pre-
proclamation controversy?

There is a need to emphasize the definition of a pre-proclamation controversy under Section 241 of the Omnibus
Election Code, 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, 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.

The issues that may be raised in a pre-proclamation controversy are enumerated in Section 243 of the same Code,
thus:

SEC. 243. Issues that may be raised in pre-proclamation controversy. - The following shall be proper issues that may
be raised in a pre-proclamation controversy:

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

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

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

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

There being no inner paper seals pasted on 101 election returns coming from numerous polling precincts, the
COMELEC en banc then concluded that the election returns in question appear to be obviously falsified and/or
manufactured, the results of which certainly affected the standing of respondent. According to the COMELEC en
banc, this is an issue (under Sec. 243 (b) in the enumeration) that may be raised in a pre-proclamation controversy.

The lack of inner paper seals in the election returns does not justify their exclusion from the canvassing. Indeed, it
is not a proper subject of a pre-proclamation controversy.

In the Matter of the Petition to Exclude Election Returns contained in Nine (9) Ballot Boxes, Amelita S. Navarro vs.
Commission on Election,[5] we held:

"While the aforesaid grounds (lack of inner and outer paper seals and lack of signatures of watchers, among
others) may, indeed, involve a violation of the rules governing the preparation and delivery of election returns for
canvassing, they do not necessarily affect the authenticity and genuineness of the subject election returns as to
warrant their exclusion from the canvassing. The grounds for objection to the election returns made by
petitioners are clearly defects in form insufficient to support a conclusion that the election returns were
tampered with or spurious."

Likewise, in Baterina vs. COMELEC,[6] we ruled:

The grounds raised by petitioners for the exclusion of the election returns from the canvassing, as stated in their
Appeal Memorandum before the COMELEC x x x refer to the failure to close the entries with the signatures of the
election inspectors; lack of inner and out papers seals; canvassing by the BOARD of copies not intended for it; lack
of time and date of petitioners watchers; and lack of authority of person receiving the election returns.

While the aforesaid grounds may, indeed, involve a violation of the rules governing the preparation and delivery of
election returns for canvassing, they do not necessarily affect the authenticity and genuineness of the
subject election returns as to warrant their exclusion from canvassing. The grounds for objection to the election
returns made by petitioners are clearly defects in form insufficient to support a conclusion that the election
returns were tampered with or spurious. x x x. On the basis of formal defects alone, such palpable irregularity
cannot be said to have been established herein.

II

May the COMELEC look beyond the election returns and receive evidence aliunde in a pre-proclamation
controversy?

Assuming that the ground of lack of inner paper seals in election returns is a proper issue in a pre-proclamation
controversy, the COMELEC cannot investigate and receive evidence to determine why those inner paper seals are
missing.

A pre-proclamation controversy is limited to an examination of the election returns on their face and the
COMELEC as a general rule need not go beyond the face of the returns and investigate the alleged election
irregularities.[7]

In Matalam vs. Commission on Elections,[8] we stressed that in a pre-proclamation controversy, the COMELEC, as a
rule, is restricted to an examination of the election returns and is without jurisdiction to go beyond or behind
them and investigate election irregularities.

Thus, the COMELEC acted beyond its jurisdiction when it directed the Provincial Election Supervisor of Misamis
Occidental to investigate and receive evidence to determine once and for all the mystery behind the missing
inner paper seal of the subject election returns or the failure of the Board of Election Inspectors (BEIs) to paste
the inner seals of the election returns.

III
Did the COMELEC commit grave abuse in discretion in nullifying the proclamation of petitioner as mayor of
Oroquieta City?

In its assailed Resolution, the COMELEC en banc held that the City Board of Canvassers acted without authority
when it arbitrarily proclaimed petitioner herein as the duly elected mayor of Oroquieta City, in gross violation of
Section 20 (i) of Republic Act 7166 which reads:

"Section 20. Procedure in Disposition of Contested Election Returns. -

xxx

(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 in violation
hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election."

Suffice it to state that the above provision applies only where the objection deals with a pre-proclamation
controversy, not where, as in the present case, it raises or deals with no such controversy.[9] It bears reiterating
that the lack of inner paper seals in the election returns is not a proper subject of a pre-proclamation controversy.
Respondents recourse should have been to file an election protest. Where a party raises issues, the resolution of
which would compel the COMELEC to pierce the veil of election returns which appear prima facie regular on their
face, his proper remedy is an election protest. In this proceeding, the parties may litigate all the legal and factual
issues raised by them in as much detail as they may deem necessary or appropriate. [10]

WHEREFORE, the petition is GRANTED. The challenged Resolution dated August 14, 2003 of the COMELEC en
banc in SPC No. 01-277 is REVERSED and SET ASIDE. The Resolution dated September 5, 2002 of the COMELEC
Second Division is AFFIRMED.

SO ORDERED

Macabago vs comelec
G.R. NO.152163

November 18, 2002

FACTS:

Petitioner Sabdullah T. Macabago was proclaimed Municipal Mayor of Saguiran, Lanao del Sur. Petitioner had
alead of 198 votes over private respondent Jamael M. Salacop.Private respondent filed a petition against
petitioner and the proclaimed vice mayor of Saguiran, Lanao del Sur,for the alleged fact that there was a massive
substitution of voters, rampant and pervasive irregularities in voting procedures in some precincts 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. 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. The petitioner denied the material and averred
that it is a pre-proclamation controversy. The COMELEC En Banc took cognizance of the petition and 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. 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.

ISSUE:

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

HELD:

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
bylaw or, even if there was voting, the election nevertheless resulted in a failure to elect; (b) the votes cast would
affect theresult of the election. The Court declared in Ricardo Canicosa vs. Commission on Elections, et al., that
there are onlythree (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 thehour fixed by law for the
closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogouscauses; (c) after
the voting and during the preparation and transmission of the election returns or in the custody or canvassthereof,
such election results in a failure to elect on account of force majeure, violence, terrorism, fraud, or other
analogous causes.In sum then, the grounds alleged by private respondent in his petition before the COMELEC are
those for aregular election protest and are not proper in a pre-proclamation controversy nor is such petition one
for annulment of theelections or for a declaration of failure of elections in the municipality of Saguiran, Lanao del
Sur. The COMELEC shouldhave ordered the dismissal of the petition instead of issuing the assailed order. The
COMELEC thus committed a graveabuse of its discretion amounting to excess or lack of jurisdiction in issuing the
same. The error is correctible by thespecial civil action for certiorari

FRANCISCO D. OCAMPO, petitioner, vs. COMMISSION ON ELECTIONS,

MUNICIPAL BOARD OF CANVASSERS OF STA. RITA, PAMPANGA and ARTHUR L.
SALALILA, respondents.
[G.R. No. 137470. February 15, 2000]

FRANCISCO D. OCAMPO, petitioner, vs. ARTHUR L. SALALILA, respondent.

DECISION

KAPUNAN, J.:

The case before us hinges on the question of whether or not to include in the canvass the contested election
returns.

The facts are as follows:

Francisco D. Ocampo and Arthur L. Salalila were candidates for Mayor in the Municipality of Sta. Rita, Province of
Pampanga during the May 11, 1998 elections. There were 78 precincts in said municipality. During the canvassing
of the election returns which started on May 12, 1998 and ended on May 14, 1998 petitioner moved for the
exclusion of the election returns in 8 precincts from Barangay Basilia considering that the turnout of votes was
allegedly lopsided against his favor. The results were as follows: Ky-le
Precinct No.........................VOTES RECEIVED BY

.....................................OCAMPO............SALALILA

1. 88-A-1..............................0......................165

2. 89-A-1..............................0......................104

3. 90-A & 90-A-1..................3......................192

4. 92-A.................................0......................152

5. 93-A & 94-A.....................7......................236

6. 99-A & 100-A...................7......................205

7. 104-A...............................5......................155

8. 105-A...............................3......................115[1]

..........................................------.................------

..........................................25 votes................1,324 votes

The grounds for the exclusion of the election returns in the aforementioned precincts were: i.e: (1) that the same
were obviously manufactured; (2) they were defective for they contained no data on the number of registered
votes in the precinct, actual number of votes cast and the number of valid votes cast; and (3) other alleged
discrepancies in the data on votes cast and total number of registered voters and excess ballots. [2]

Finding the contested election returns to be genuine and authentic and without merit, the Municipal Board of
Canvassers (MBC) ruled to order the inclusion in the canvass of the contested election returns.[3]

On May 16, 1998, petitioner went to see the Chairman of the MBC at his office to file his Notice of Appeal. Since
the latter was not present, petitioner instead filed said notice with Board Members Nelia Salvador and Diosdado L.
Amio who, however, refused to accept the same in line with the Boards earlier ruling not to receive anymore the
Notice of Appeal. Upon request, a Certification to that effect was issued by Nelia Salvador and Disodado Amio on
the same date.[4]

On May 18, 1998, petitioner went to the COMELEC and filed a formal appeal. [5] This was docketed as SPC No. 98-
056. On June 29, 1998, the COMELEC Second Division, rendered a Resolution stating the following: E-xsm

xxx

Respondent MBC should have at least suspended its canvass in so far as the question or contested election returns
were concerned. x x x x

In precinct 88-A-1 the election return is lacking in material data as there were no entries as to the number of
registered voters in the precinct, the actual number of votes cast and the number of valid votes cast. In such a
situation it is incumbent upon the MBC to call the members of the Board of Election Inspectors (BEI) to complete
the data which failed to do so.

In precinct 89-A-1 there was a discrepancy in the figure of the total number of valid votes cast and the number of
votes received by private respondent Salalila. Moreover, two (2) member (sic) of the BEI did not affixed (sic) their
thumbmark in the questioned election returns rendering their authenticity doubtful. There is material discrepancy
in the election return as it is (sic) states therein that there were 197 voters who actually voted. And also it was also
stated therein that there were 22 excess ballots and therefore the number of voters who actually voted will be 219
in excess of the 215 total number of registered voters for the precinct.

In precincts 92-A the return states that there were 153 voters who actually voted and private respondent Salalila
received 152 votes while petitioner got zero (0), one (1) vote therefore is clearly missing.

In 93-A and 94-A there were an excess of the number of voters who actually voted. The election returns shows
that there were 245 voters who actually voted yet there were 27 excess ballots found in the ballot box, but the
number of voters in the precinct is only 272, meaning there was a one hundred per cent (100%) turn-out of voters
for those precinct but the election return states that there were only 245 who actually voted.

In precinct 99-A, 100-A and 104-A there were also no entries on the data of voters and ballots. Again the MBC
should have at least called the members of the BEI to complete the data in the election return and explain why
they failed to do the same. Me-sm

In precinct 105-A it is obvious that there were discrepancies in the material data in that the total number of
registered voters in the precinct is 141 while the total number accordingly of the voters who actually voted is 121
but found out inside the ballot box were 144 valid ballots which obviously in excess of three (3) from the total
number of the registered voters for the precinct.

But more than the above findings what is significant is that in Precincts 93-A and 94-A there were erasures in the
election return which accordingly was made to reflect the correct votes received by petitioner and private
respondent. According to the Chairman of BEI, private respondent received 96 votes while, petitioner received 4
votes instead of 97 yet the election returns states that petitioner received only three votes instead of four as
claimed but (sic) the Chairman of the BEI. Such erasures manifest (sic) on the election return puts the authenticity
of the same in issue and should have been excluded in the canvass.

While it is true that the Board of Canvassers is essentially a ministerial body and has no power to pass upon
questions of whether there are illegal voters or other election frauds. (Dizon v. Provincial Board, 52 Phil 47; Sangki
v. Comelec, 21 SCRA 1392), it is also true that in case of patent irregularity in the election returns, such as patent
erasures and super-impositions in words and figures on the face of the returns submitted to the board, it is
imperative for the board to stop the canvass of such returns so as to allow time for verification. A canvass and
proclamation made withstanding such patent defects in the returns which may affect the result of the election,
without awaiting remedies, is null and void. (Purisima v. Salonga, 15 SCRA 704).

WHEREFORE, the Commission (Second Division) resolves to GIVE DUE COURSE to the appeal and the eight (8)
contested election returns are hereby ordered excluded from the canvass for the position of the municipal mayor
of Sta. Rita, Pampanga.

The proclamation made by respondent MBC on May 14, 1998 proclaiming private respondent as duly elected
Mayor of Municipality of Sta. Rita, Pampanga is hereby SUSPENDED. S-l-x

Respondent MBC is hereby directed to reconvene and issue a new certificate of canvass of votes excluding the
election returns subject of this appeal and on the basis of which proclaim the winning candidate for Mayor of the
Municipality of Sta. Rita, Pampanga.

SO ORDERED.[6]

On July 3, 1998, private respondent Salalila filed a motion for reconsideration. [7]
On November 19, 1998, the COMELEC en banc promulgated the questioned Resolution reversing the findings of
the Comelec Second Division. The decretal portion of which states:

WHEREFORE, in view of the foregoing, the Resolution promulgated by this Commission (Second Division) on 29
June 1998 is hereby reversed and set aside. The suspension of the effects of the proclamation of the
respondent/appellee, ARTHUR L. SALALILA, is hereby lifted. His proclamation as MAYOR of the municipality of Sta.
Rita, Pampanga on 14 May 1998 is hereby confirmed.

SO ORDERED.[8]

Hence, petitioner Ocampo filed the iinstant petition citing the grave abuse of discretion committed by the
COMELEC en banc in reversing the findings of the COMELEC Second Division. A temporary restraining order was
also prayed for to enjoin the effects of private respondents Salalilas proclamation as municipal mayor.

On December 15, 1998, this Court issued a Temporary Restraining Order directing the COMELEC to cease and
desist from enforcing its Resolution, dated November 19, 1998 in SPC No. 98-056.

Meanwhile, on March 1, 1999, petitioner filed a separate petition before this Court to cite private respondent
Salalila for contempt. This was docketed as G.R. No. 137470. In this petition, petitioner claimed that despite the
issuance of a Temporary Restraining Order by this Court on December 15, 1998 in G.R. No. 136282, private
respondent Salalila continued to act as the Mayor of Sta. Rita, Pampanga. Es-mso

Petitioner would like to impress upon this Court that the returns in the subject precincts (25 votes with zero 0
votes in three precincts, as against private respondents Salalilas 1,333 votes) were statistically improbable
considering that he was a re-electionist and with assigned watchers therein. Although he admits that the precincts
were private respondent Salalilas bailiwick, precedence dictates that every election document coming from a
candidates bailiwick must be carefully scrutinized.

Petitioner claims that the election returns did not contain data as required in Section 212 of the Omnibus Election
Code which reads:

The returns shall also show the date of the election, the polling place, the barangay and the city or municipality in
which it was held, the total number of ballots found in the compartment for valid ballots, the total number of valid
ballots withdrawn from the compartment for spoiled ballots because they were erroneously placed therein, the
total number of excess ballots, the total number of marked or void ballots, and the total number of votes obtained
by each candidate, writing out the said number in words and figures and, at the end thereof, the board of election
inspectors shall certify that the contents are correct. The returns shall be accomplished in a single sheet of paper,
but if this is not possible, additional sheets may be used which shall be prepared in the same manner as the first
sheet and likewise certified by the board of election inspectors.

xxx

Petitioner further contends that these data on voters and ballots are just as important as the data on votes
credited to the candidate on the same election returns. The absence such data without any explanation or
correction on the part of the Board of Election Inspectors who prepared those election documents renders them
invalid. Violations of Sections 234 and 235 relating to material defects in the election returns and tampered or
falsified election returns are considered election offenses under Section 262 of the Omnibus Election Code. [9]

The pertinent provisions read as follows: Sc-slx

Sec. 234. Material defects in the election returns.- If it should clearly appear that some requisites in form or data
had been omitted in the election returns, the board of canvassers shall call for all the members of the board of
election inspectors concerned by the most expeditious means, for the same board to effect the
correction. Provided, That in case of the omission in the election returns of the name of any candidate and/or his
corresponding votes, the board of canvassers shall require the board of election inspectors concerned to complete
the necessary data in the election returns and affix therein their initials: Provided, further, That if the votes omitted
in the returns cannot be ascertained by other means except by recounting the ballots, the Commission, after
satisfying itself that the identity and integrity of the ballot box have not been violated, shall order the board of
election inspectors to open the ballot box, and, also after satisfying itself that the integrity of the ballots therein
has been duly preserved, order the board of election inspectors to count the votes for the candidate whose votes
have been omitted with notice thereof to all candidates for the position involved and thereafter complete the
returns.

The right of a candidate to avail of this provision shall not be lost or affected by the fact that an election protest is
subsequently filed by any of the candidates.

Sec. 235. When election returns appear to be tampered with or falsified. - If the election returns submitted to the
board of canvassers appear to be tampered with, altered or falsified after they have left the hands of the board of
election inspectors, or otherwise not authentic, or were prepared by the board of election inspectors, the board of
canvassers shall use the other copies of said election returns and, if necessary, the copy inside the ballot box which
upon previous authority given by the Commission may be retrieved in accordance with Section 220 hereof. If the
other copies of the returns are likewise tampered with, altered, falsified, not authentic, prepared under duress,
force, intimidation, or prepared by persons other than the members of the board of election inspectors, the board
of canvassers or any candidate affected shall bring the matter to the attention of the Commission. The Commission
shall then, after giving notice to all candidates concerned and after satisfying itself that nothing in the ballot box
indicate that its identity and integrity have been violated, order the opening of the ballot box and, likewise after
satisfying itself that the integrity of the ballots therein has been duly preserved shall order the board of election
inspectors to recount the votes of the candidates affected and prepare a new return which shall then be used by
the board of canvassers as basis of the canvass. (Sec. 173, 1978 EC). Sl-xsc

The petition must fail.

It must be borne in mind that we are persuaded strongly by the principle that the findings of facts of
administrative bodies charged with their specific field of expertise, are afforded great weight by the courts, and in
the absence of substantial showing that such findings are made from an erroneous estimation of the evidence
presented, they are conclusive, and in the interest of stability of the governmental structure, should not be
disturbed.[10] The COMELEC, as an administrative agency and a specialized constitutional body charged with the
enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall, has more than enough expertise in its field that its findings or conclusions are
generally respected and even given finality.[11] We do not find the instant case an exception to this avowed rule.

In order to allay any suspicion of gravely abusing its discretion, the COMELEC made a careful examination of the
contested election returns. "To check and double check" if it were true that the contested election returns were
tampered with, altered or falsified, the COMELEC en banc examined two separate copies of the election returns:
(1) the copy for the Municipal Board of Canvassers and (2) the COMELEC copy. Thus, the following findings were
made:

In the election returns for precinct 88-A-1, only formal defects are present, there being no entries on the requisite
data as to the number of registered voters in the precinct, the actual number of votes cast and the number of valid
votes cast. However, the number of votes credited to the petitioner and private respondent and the taras therein
do not contain any erasure or alteration as to bring the number of votes obtained by the petitioner and private
respondent within the realm of controversy. We, therefore, rule for the inclusion of the election returns for this
precinct. Sl-xm-is
The election returns for precinct 89-A-1 was ruled excluded by the Second Division for several reasons. It was
alleged (1) that there is a discrepancy in the total number of valid votes cast and number of votes received by
private respondent Salalila; (2) that two (2) members of the Board of election Inspectors did not affix their thumb
mark in the questioned election returns; and (3) that the elections returns states that there were 197 voters who
actually voted while there were 22 excess ballots which means that the number of voters who actually voted will
be 219 in excess of the 215 total number of registered voters in the precinct. An examination of this election
returns shows that all pages of the election returns have been signed and thumb marked by the chairman and
members of the board of election inspectors except on page 3 where the members did not thumb mark but the
chairman did and on page 4 where the chairman had no thumb mark but the members did have. This is a mere
oversight and it did not vitiate the validity of the votes credited to each candidate nor did it destroy the integrity of
the election return. A perusal of the election returns for the mayoral candidates shows that Salalila got one
hundred four (104) votes while petitioner/appellant Ocampo received zero (0). The fact that private
respondent/appellee got almost all the votes cast in this precinct is not necessarily proof of fraud for there is
nothing in the returns to show that it was tampered or altered. The election returns itself reflects with clarity the
votes obtained by Salalila and Ocampo. It bears no sign whatsoever of tampering or alteration. Moreover, contrary
to the findings of the Second Division, the election returns for this precinct did not state that there were 197
voters who actually voted and that there were 22 excess ballots but rather, the number of voters who actually
voted is only 105 out of 115 total registered voters in this precinct and the excess ballots is zero. We, therefore,
rule for the inclusion in the canvass of the election returns for this precinct. M-issdaa

In the election returns for precinct 92-A, it was ruled excluded on the ground that one (1) vote is missing therein,
153 voters having actually voted and private respondent Salalila received 152 votes while petitioner got zero (0).
We overrule. The fact that Salalila got one hundred fifty two (152) votes out of 153 voters who actually voted while
Ocampo got zero (0), does not necessarily mean that one (1) vote is missing. One (1) voter in this precinct might
have desisted from casting his vote for the mayor or may have voted but the vote was not credited because it was
stray or just illegible. But the missing vote cannot be a ground for exclusion. Hence, We rule for the inclusion of
the election returns in the canvass.

In the election returns for clustered precincts 93-A and 94-A, an examination of the returns shows that it is
complete with entries of the requisite data and that it had been signed by all the members of the board of election
inspectors. It also discloses that it is not true there was one hundred percent (100%) turn-out of voters for this
clustered precincts as there were only two hundred forty five (245) voters who actually voted out of the two
hundred seventy two (272) registered voters. Hence, there is nothing mysterious about the 27 excess but unused
ballots found in the ballot box. Similarly, we saw no erasures or alteration on the face of the election returns,
specifically the portion showing the number of votes. If at all, there were superimposition made on the faintly
written names of the candidates to make the same easily readable. Such superimposition on the names of
candidates did not in any manner render the number of votes garnered by the candidates subject to doubt as to
bring the same within the realm of controversy. Moreover, We find intriguing the finding that chairman of the
board of election inspectors claimed that private respondent received 96 votes instead of 97 while petitioner
received 4 votes yet the election returns states that petitioner received only three votes instead of four. We find
nothing in the records to support it. The election returns itself shows that Salalia obtained two hundred thirty six
(236) votes while Ocampo got seven (7) votes. We, therefore, rule for the inclusion in the canvass of said election
returns.

In the election returns for clustered precincts 99-A and 100-A, and precinct 104-A, only formal defects are present,
there being no entries of the requisite data as to the number of registered voters in the precincts, the actual
number of votes cast, and the number of valid votes cast. However, the number of votes credited to the
petitioner/appellant and respondent/appellee as reflected by the taras show correctness of count. There were no
erasures or alteration as to put the same into question. We therefore, likewise rule for the inclusion in the
canvass of this election returns. Sd-aad-sc
In the election returns for precinct 105-A, it was ruled excluded because of alleged discrepancies in the material
data in that the total number of registered voters in the precinct is 141 while the total number of the voters who
actually voted is 121 but found out inside the ballot box were 144 valid ballots which is excess of three (3) from the
total number of registered voters for the precinct. The three (3) "excess" ballots are in reality not excess ballots.
The precinct ratio on ballot distribution adopted by the Commission in the 11 May 1998 elections is one (1) ballot
for every registered voter plus four (4) ballots. At any rate, an examination of the questioned election returns
shows that the defects are only formal and not material as to warrant the outright exclusion from canvass of the
questioned election returns. The number of votes credited to petitioner/appellant who got three (3) votes and
private respondent/appellee who received one hundred fifteen (15) votes was undisturbed and does not bear any
sign of alteration as to put the result of the election into question. We, therefore, likewise rule for the inclusion in
the canvass of the election returns for this precinct.[12]

Notably, the COMELEC en banc merely sustained the findings and rulings of the Municipal Board of Canvassers
who, at the first instance, found the contested election returns to be genuine and authentic and the objections to
be without merit. Moreover, the COMELEC en banc did not meet any oppositions or dissent from any of the
Commissioners who have rendered the resolution[13] reversing the decision of the MBC. This only goes to show
that there was a painstaking review and examination of the returns by the COMELEC en banc which does not
warrant a different conclusion from this Court. Rtc-spped

That the election returns were obviously manufactured must be evident from the face of said documents. [14] In the
absence of a strong evidence establishing spuriousness of the returns, the basic rule that the election returns shall
be accorded prima facie status as bona fide reports of the results of the count of the votes for canvassing and
proclamation purposes must perforce prevail.[15] The COMELEC en banc did not find any signs of alterations or
tampering on the election returns nor did the petitioner present any hard evidence of such irregularity. The only
thing which we surmise came too close to such a change was the written superimposition made on the family
names of the candidates in the election returns of the clustered precincts 93-A and 94-A. This was certainly not an
alteration or tampering since the COMELEC en banc found that such superimposition was necessarily done in order
to make the names readable. Nonetheless, petitioner failed to deduce evidence to the contrary. The other thing
which petitioner considered the returns to be "obviously manufactured" was the fact that petitioner garnered zero
(0) votes in three (3) precincts which was allegedly statistically improbable. To this claim, the case of Sanki v.
COMELEC[16] is worth reiterating:

x x x Indeed, the bare fact that candidates for public office had received zero votes is not enough to make the
returns statistically improbable. In the Lagumbay decision itself, Chief Justice Cesar Bengzon, who delivered the
majority opinion, did not say that when one candidate receives nothing in an election return; such a circumstance
alone will make said return statistically improbable. x x x

xxx

x x x we can not, with certainty, conclude form the facts before us that the returns questioned were "not true
returns of legal votes actually cast, but simply manufactured evidences of an attempt to defeat the popular
will. Sc-lex

To be sure, it cannot be said here - as this Court did intimate in Lagumbay - that respondent board of canvassers
may legally deny "prima facie recognition to such returns on the ground that they are manifestly fabricated or
falsified;" or that "the fraud is so palpable from the return itself (res ipsa loquitur - the thing speaks for itself)",
such that "there is no reason to accept and give it prima facie value."

The factual background of this case suggests that we should not unduly expand the reach of the statistically
improbable doctrine carved out of the facts obtaining in Lagumbay. Rather, we should say that respondent board
of canvassers - sustained by Comelec - in refusing to reject canvass of the returns from the disputed precincts,
properly performed the functions allocated to it by law. It did well in not overstepping its authority. x x x

Anent the objection as to the omitted data in the election returns, a close reading of Section 234 of the Omnibus
Election Code shows that nothing in said provision provides for the exclusion of the election returns.

Moreover, such omitted data are merely formal defects and not so material as to affect the votes the candidates
obtained in the election. We find the case of Baterina vs. Commission on Elections[17] similar to the case at bar,
where the Court elucidated that:

[T]he grounds raised by petitioners for the exclusion of the election returns from the canvassing, as stated in their
"Appeal Memorandum", before the COMELEC (Rollo, p. 92), refer to the failure to close the entries with the
signatures of the election inspectors; lack of inner and outer paper seals; canvassing by the BOARD of copies not
intended for it; lack of time and date of receipt by the BOARD of election returns; lack of signatures of petitioners
watchers; and lack of authority of the person receiving the election returns. Scmis

While the aforesaid grounds may, indeed, involve a violation of the rules governing the preparation and delivery of
elections returns for canvassing, they do not necessarily affect the authenticity and genuineness of the subject
election returns as to warrant their exclusion from the canvassing. The grounds for objection to the election
returns made by petitioner are clearly defects in form insufficient to support a conclusion that the election returns
were tampered with or spurious. "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. x x x

For as long as the election returns which on their face appear regular and wanting of any physical signs of
tampering, alteration or other similar vice, such election returns cannot just be unjustifiably excluded. To look
beyond or behind these returns is not a proper issue in a pre-proclamation controversy as in the case at bar.[18]

WHEREFORE, the petition for certiorari in G.R. No. 136282 is hereby DISMISSED for its failure to show grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of the Commission on Elections (COMELEC) in
rendering the assailed Resolution, dated November 19, 1998. G.R. No. 133470 is, likewise, DISMISSED. The
Temporary Restraining Order issued on December 15, 1998 is hereby LIFTED.

SO ORDERED.

SECTION 249

MICHAEL L. SAN MIGUEL v. COMELEC

CARPIO MORALES, J.:

Challenged via Certiorari and Prohibition are the Resolutions of February 25, 2009 and May 25, 2009 of public
respondent Commission on Elections (Comelec) in SPR (Brgy) No. 106-2008 directing the issuance of a writ of
execution pendente lite and denying the motion for reconsideration, respectively.

Petitioner Michael San Miguel and private respondent Christopher Aguilar vied in the October 29, 2007 elections
for the position of Punong Barangay of Barangay Marcelo Green in Parañaque City where they obtained 2,969 and
2,867 votes, respectively.
After petitioner's proclamation, private respondent filed an election protest docketed as E.P. Case No. 07-4 before
the Metropolitan Trial Court of Parañaque City which, after recount and revision of ballots from the contested
precincts, ruled that private respondent garnered 2,898 votes or 12 votes more than the 2,886 votes received by
petitioner and accordingly annulled petitioner's proclamation, by Decision of May 9, 2008.

Petitioner filed with the trial court a Notice of Appeal to the Comelec, docketed eventually as EAC No. 208-2008.
The appeal is still pending.

Meanwhile, three days after the promulgation of the trial court's Decision or on May 12, 2009, private respondent
filed an Urgent Motion for Execution Pending Appeal (Urgent Motion) which was received by petitioner on May 13,
2008 with notice of a May 14, 2008 hearing. The trial court calendared the hearing, however, on May 19, 2008,
and eventually denied the Urgent Motion by Order of May 22, 2008.[1]

Private respondent elevated the matter on certiorari to the Comelec which reversed the trial court's May 22, 2008
Order, by the first assailed Resolution the dispositive portion of which reads:

WHEREFORE, premises considered, the instant petition for certiorari is hereby GRANTED. Accordingly, the assailed
Order of May 22, 2008 in Election Protest Case No. 07-4 (Christopher Aguilar v. Michael San Miguel) of the
Metropolitan Trial Court of Parañaque City is hereby SET ASIDE. Let a Writ of Execution pending appeal be issued in
accordance with Section 11(b), Rule 14 of the Rules of Procedure in Election Contests to implement the May 9,
2008 Decision of the respondent Judge in the above-captioned case, which declared Protestant-CHRISTOPHER V.
AGUILAR as the duly elected Punong Barangay of Marcelo Green, Parañaque City and annulled the proclamation
and oath-taking of Protestee-MICHAEL L. SAN MIGUEL.

SO ORDERED.[2] (emphasis and italics in the original),

and denied reconsideration thereof by the second assailed Resolution.

Hence, the present petition, petitioner averring that the Comelec gravely abused its discretion by blatantly
misapplying Section 11, Rule 14 of the Rules of Procedure in Election Contests before the Courts involving Elective
Municipal and Barangay Officials[3] (Rules of Procedure) which reads:

Sec. 11. Execution Pending Appeal â"€ On motion of the prevailing party with notice to the adverse party, the
court, while still in possession of the original records, may, at its discretion, order the execution of the decision in
an election contest before the expiration of the period to appeal, subject to the following rules:

(a) There must be a motion by the prevailing party with three-day notice to the adverse party. Execution pending
appeal shall not issue without prior notice and hearing. There must be good reasons for the execution pending
appeal. The court, in a special order, must state the good or special reasons justifying the execution pending
appeal. Such reasons must:

(1) constitute superior circumstances demanding urgency that will outweigh the injury or damage should the losing
party secure a reversal of the judgment on appeal; and
(2) be manifest, in the decision sought to be executed, that the defeat of the protestee or the victory of the
protestant has been clearly established.

(b) If the court grants an execution pending appeal, an aggrieved party shall have twenty working days from notice
of the special order within which to secure a restraining order or status quo order from the Supreme Court or the
Commission on Elections. The corresponding writ of execution shall issue after twenty days, if no restraining order
or status quo order is issued. During such period, the writ of execution pending appeal shall be stayed. (emphasis,
italics and underscoring supplied)

In not granting a special order to execute its decision pending appeal, the trial court explained that it could no
longer order execution since the above-quoted rule allows the issuance of a special order only within the five-day
period to appeal which, at that time, had already expired.

Echoing that of the trial court, petitioner posits that the Rules of Procedure expressly provide that the special order
should be issued before the expiration of the five-day period to file a notice of appeal.

By petitioner's theory, the filing of the motion, the three-day notice to the other party, the hearing on the motion,
and the issuance of the order resolving the motion should all take place within five days.

The petition lacks merit.

Evident from the usage of the word "may," the language of the subject provision denotes that it is merely
directory, and not mandatory, for the trial court to issue the special order before the expiration of the period to
appeal. The trial court may still thereafter resolve a motion for execution pending appeal, provided: (i) the motion
is filed within the five-day reglementary period; and (ii) the special order is issued prior to the transmittal of the
records to the Comelec.

Both parties concede that the motion for execution pending appeal must be filed within the five-day period to
appeal. In the present case, the Urgent Motion was filed well within the reglementary period.

Indeed, in one case,[4] the Court construed a similarly phrased provision[5] to mean that the ruling on the motion
for execution may issue after the period of appeal, as long as the motion for execution pending appeal was filed
before the expiration of the time to appeal.

Keeping in mind that "hurried justice is not always authentic justice,"[6] the permissive nature of the rule allows the
trial court to apply the same insofar as it is practicable, albeit the rigid compliance therewith is not altogether
impossible, such that a motion for execution pending appeal may be filed at the latest on the second day after
notice of the decision, and heard and resolved at the latest on the fifthday after notice of the decision, in
compliance with the mandatory three-day notice rule, barring any intervening resetting or non-working days.

It also appears that the prevailing party need not check first if the losing party actually appealed the case before
the prevailing party could file a motion for execution pendente lite. The setting of the same period of five days for
the filing of a motion for execution pending appeal, similar to that for a notice of appeal, allows the trial court to
expediently rule on this incident, along with the notice of appeal, before transmitting the records to the Comele,
during which the trial court shall have already lost jurisdiction to resolve pending incidents.

In other words, the special order directing the issuance of a writ of execution pending appeal must be
issued prior to the transmittal[7] of the records to Electoral Contests Adjudication Department of the Comelec.

As interpreted by the Court in Pecson v. Commission on Elections,[8] the same elements of possession of the
records and non-lapse of the appeal period are necessary for the trial court's exercise of its residual jurisdiction to
issue a special order. The writ of execution is a mere administrative medium of the special order, and the writ itself
cannot and does not assume a life of its own independent from the special order on which it is
based. Pecson explained that the writ itself may issue after the transmittal of the records, upon cessation of the
20-working-day waiting or suspension period[9] without the other party having secured a restraining or status quo
order.

In the present case, the Comelec correctly found that the trial court gravely abused its discretion when it motu
proprio reset the hearing of the Urgent Motion from May 14, 2008 to May 19, 2008, and used such circumstance in
denying the grant of a special order on the ground that it had lost its jurisdiction with the lapse of the five-day
period.

Indeed, the trial court's patent and gross abuse of discretion amounted to an evasion of a positive duty or to a
virtual refusal to perform a duty enjoined by law. The whim is evident from the fact that if indeed the trial court
really believed that the five-day period was mandatory, it should have resolved the Urgent Motion either way on
the day it was set for hearing instead of rescheduling the hearing.

Petitioner's argument that the Comelec cannot direct the issuance of a writ of execution since no special order was
issued by the trial court is specious. It begs the question and trivializes the remedy of certiorari available before
the Comelec, rendering the latter inutile in annulling or modifying the proceedings to "keep an inferior court
within its jurisdiction and to relieve persons from arbitrary acts, meaning acts which courts or judges have no
power or authority in law to perform."[10]

Petitioner also alleges that the finding of private respondent's electoral victory was based on a faulty arithmetic
computation by the trial court, to thus negate the guideline in an execution pending appeal that the defeat of the
protestee or the victory of the protestant must have been clearly established.

The Comelec pointed out that the trial court's decision itself made clear reference to the April 8, 2008 Order which
formed part of the decision in arriving at the computation of the respective votes garnered by the parties.

The Court finds no abuse of discretion, much less a grave one, on the part of the Comelec when it found good and
special reasons to justify the execution pendente lite of the trial court's 419-page decision that "laboriously
elucidated the reasons for its invalidation or validation of each ballot."[11] Absent any grave abuse of discretion, the
Court will not disturb the Comelec's finding that the trial court's decision was rendered with due basis and
substantiation on the computation of the votes.

The present disposition is without prejudice, however, to the appeal docketed as EAC No. 208-2008, which could
fully ventilate the merits of the parties' claims and defenses that are evidentiary in nature, and to the other issues
raised by the parties which the Court finds unnecessary to resolve.

WHEREFORE, the petition is DISMISSED. The assailed Resolutions of the Commission on Elections in SPR (Brgy) No.
106-2008 are AFFIRMED.

SO ORDERED.