Republic of the Philippines

SUPREME COURT
Manila

EN BANC

______________________,

Petitioner,

-versus- G.R. NO. __________

For: Certiorari under
Rule 64 in relation to
Rule 65 of the Rules of
Court with Extremely
Urgent Prayer for the
Issuance of a
Temporary Restraining
Order (TRO) and/or
Status Quo Ante Order
and/or Preliminary
Injunction.
COMMISSION ON
ELECTIONS,
Respondent.
x------------------------------------------x

PETITION FOR CERTIORARI

[WITH EXTREMELY URGENT PRAYER FOR ISSUANCE OF
TEMPORARY RESTRAINING ORDER (TRO) AND/OR
STATUS QUO ANTE ORDER AND/OR WRIT OF
PRELIMINARY INJUNCTION]

COMES NOW, Petitioner, ______________________,

through the undersigned counsel, unto this Honorable
Supreme Court En Banc most respectfully alleges that:

I.
PREFATORY STATEMENT
 1.1. The cardinal precept is that where there is a
violation of basic constitutional rights, courts are
ousted from their jurisdiction. The violation of a party's
right to due process raises a serious jurisdictional issue
which cannot be glossed over or disregarded at will.
Where the denial of the fundamental right to due
process is apparent, a decision rendered in disregard of
that right is void for lack of jurisdiction. This rule is
equally true in quasi-judicial and administrative
proceedings, for the constitutional guarantee that no
man shall be deprived of life, liberty, or property without
due process is unqualified by the type of proceedings
(whether judicial or administrative) where he stands to
lose the same.1

1.2. Due process of law requires notice and

hearing. Hearing, on the other hand, presupposes a
competent and impartial tribunal. The right to be heard
and, ultimately, the right to due process of law
lose meaning in the absence of an independent,
competent and impartial tribunal.2

1.3. Jurisprudence repeatedly teaches that

litigants are entitled to nothing less than the cold
neutrality of an impartial judge. The other elements of
due process, like notice and hearing, would become
meaningless if the ultimate decision is rendered by a
partial or biased judge. Judges must not only render
just, correct and impartial decisions, but must do so in
a manner free of any suspicion as to their fairness,
impartiality and integrity.3

1.4. At issue in this case is the independence and

impartiality of Public Respondent Commission on
1
Winston F. Garcia v. Mario I. Molina and Albert M. Velasco, G.R. Nos. 157383 and 174137,
August 10, 2010; citing Montoya v. Varilla, G.R. No. 180146, December 18, 2008, 574 SCRA 831,
843; emphasis supplied.
2
Fabella, et al. v. Court of Appeals, et al.; G.R. No. 110379, November 28, 1997; emphasis
supplied.
3
Amb. Harry C. Angping and Atty. Sixto S. Brillantes v. Judge Reynaldo C. Ros, A.M. No. 12-8-
160-RTC, December 10, 2012; emphasis supplied.
______________________v. COMELEC
Petition for Certiorari
2|Page
Elections (“COMELEC” for brevity) for assuming the dual
role of indicter, being the Petitioner in the
disqualification case of ______________________docketed as
______________________, and adjudicator at the same time.
This absurd situation compelled Petitioner
______________________to seek recourse before this
Honorable Supreme Court.

II.
NATURE OF THE ACTION

2.1. This is a petition for certiorari filed pursuant

to Rule 644 in relation to Rule 655 of the 1997 Rules of
Civil Procedure.

2.2. Petitioner _______ assails the Resolution

promulgated on _______ by Public Respondent COMELEC
En Banc and the Resolution promulgated on _______ by
Public Respondent COMELEC Second Division.

2.3. The aforementioned Resolutions ordered the

cancellation of Petitioner’s Certificate of Candidacy and
the annulment of his proclamation as Punong Barangay
of _______, as a consequence of the grant of the petition
initiated by the Law Department of Public Respondent
COMELEC.

2.4. With all due respect, Petitioner _______ submits

that the challenged Resolutions of Public Respondent
COMELEC dated _______ were issued in gross violation of
his constitutional right to due process of law.

2.5. Consequently, by promulgating the assailed

Resolutions, Public Respondent COMELEC acted with

4
Review of Judgments and Final Orders or Resolutions of the Commission on Elections and the
Commission on Audit
5
Certiorari, Prohibition and Mandamus
______________________v. COMELEC
Petition for Certiorari
3|Page
grave abuse of discretion amounting to lack or excess
of jurisdiction.

2.6. And since there is no appeal, or any plain,

speedy and adequate remedy in the ordinary course of
law, herein Petitioner is thus constrained to initiate the
foregoing Petition which prays for the issuance of a Writ
of Certiorari to declare as NULL and VOID the
questioned decrees as well as the proceedings before
Public Respondent COMELEC.

2.7. Petitioner likewise prays for the immediate

issuance of a Temporary Restraining Order (TRO) and/or
a Status Quo Ante Order and/or a Writ of Preliminary
Injunction to enjoin and stay the implementation of the
Questioned Resolutions for the preservation of the
rights of the parties and to avoid disruption in public
service at least in the interim until after the instant
petition shall have been resolved.

III.
STATEMENT OF MATERIAL DATES/
TIMELINESS OF THE PETITION

3.1. On _______, Public Respondent COMELEC

Second Division promulgated one of the assailed
Resolutions in the above-entitled case, which resolved
to grant the Petition of the Public Respondent
COMELEC. The dispositive portion of which reads:

“WHEREFORE, premises considered, the

Commission (Second Division) RESOLVED, as
it hereby RESOLVES, to GRANT the petition.
The Certificate of Candidacy of Respondent
_______ is hereby CANCELLED and his
proclamation, ANNULLED. Accordingly, the

______________________v. COMELEC
Petition for Certiorari
4|Page
 Barangay Board of Canvassers is directed to
RECONVENE and PROCLAIM the next qualified
candidate who obtained the highest number of
votes as the duly-elected Punong Barangay of
Barangay _______.

SO ORDERED.”

3.2. The _______ Resolution was received by the

Petitioner, through his legal counsel, on _______.

3.3. Aggrieved thereby, Petitioner duly and timely

filed his Motion for Reconsideration thereto before
Public Respondent COMELEC on _______. This Motion for
Reconsideration was filed pursuant to Section 2, Rule
19 of the 1993 COMELEC Rules of Procedure, which
provides that a motion to reconsider a decision,
resolution, order, or ruling of a Division shall be filed
within five (5) days from the promulgation thereof. The
said Motion was elevated to Public Respondent
COMELEC En Banc.

3.4. Unfortunately, on _______, Public Respondent

COMELEC En Banc promulgated its Resolution, which is
likewise being challenged in this Petition, denying
Petitioner’s Motion for Reconsideration and affirming
the _______ Resolution of Public Respondent COMELEC
Second Division. The dispositive portion of which
reads:

“WHEREFORE, premises considered, the

Motion for Reconsideration dated _______ is
DENIED and the Resolution of the Commission
(Second Division) dated _______ is hereby is
hereby AFFIRMED.

SO ORDERED.

______________________v. COMELEC
Petition for Certiorari
5|Page
 3.5. On _______, Petitioner received his copy of the
_______ Resolution of Public Respondent COMELEC En
Banc. Consequently, Petitioner has thirty (30) days
from notice thereof or until _______ to file a petition for
certiorari in accordance with Section 3 of Rule 64 in
relation to Section 1 of Rule 65 both of the 1997 Rules
of Civil Procedure.

3.6. Hence, the instant petition is timely filed

within the prescribed reglementary period under the
Rules of Civil Procedure.

IV.
PARTIES

4.1. Petitioner _______ is a Filipino citizen, of legal

age, single and a resident of _______. He may be served
with orders, notices, writs and other court processes of
this Honorable Supreme Court En Banc at the office
address of the undersigned counsel in _______.

4.2. Public Respondent Commission on Elections

En Banc is the Constitutional body tasked with
exclusive original jurisdiction over all contests relating
to the elections, returns, and qualifications of all
elective regional, provincial, and city officials. It is
impleaded in this petition for acting without jurisdiction
or with grave abuse of discretion amounting to lack or
excess of jurisdiction when it issued the assailed
Resolutions against the Petitioner which cancelled the
latter’s Certificate of Candidacy and annulled his
proclamation as Punong Barangay of _______. Public
Respondent COMELEC En Banc may be served with the
orders, notices, writs and other court processes of this
Honorable Supreme Court En Banc at its main office in
8th Floor Palacio del Gobernador Building, Gen. Luna

______________________v. COMELEC
Petition for Certiorari
6|Page
Street corner Andres Soriano Jr. Ave., Intramuros,
Manila 1002.

V.
STATEMENT OF FACTS AND OF THE CASE

5.1. On _______, Petitioner filed his Certificate of

Candidacy for _______, in connection with the then
forthcoming _______ Barangay Elections.

5.2. On _______, or fourteen (14) days thereafter,

Public Respondent COMELEC, through its Law
Department, motu proprio filed a Petition for
Disqualification against Petitioner _______ on the ground
that the latter is supposedly barred from running in the
barangay elections in view of his perpetual
disqualification to hold public office by virtue of his
alleged dismissal/removal from office as a result of the
Consolidated Decision rendered by the Office of the
Ombudsman on _______.

5.3. The Ombudsman purportedly found Petitioner

_______ and his Co-Respondents in that case guilty of
Grave Misconduct, and accordingly meted the penalty
of Dismissal from the Service pursuant to _______.
Petitioner _______ filed a Motion for Reconsideration of
the said decision but the same was allegedly denied on
_______.

5.4. On _______, Public Respondent COMELEC

Second Division issued an Order directing Petitioner
_______ to file his verified Answer cum Memorandum
within three (3) days from receipt thereof.

5.5. Petitioner _______ duly and timely filed his

verified Answer cum Memorandum on _______. In his

______________________v. COMELEC
Petition for Certiorari
7|Page
defense, Petitioner _______ argued that the instant
petition should be dismissed for the following reasons:

i. The Petition for Disqualification invokes

grounds for a Petition to Deny Due Course
to or Cancel Certificate of Candidacy
(COC0 under Section 78 of the Omnibus
Election Code, which, under the COMELEC
Rules, is a ground for dismissal of the
petition;

ii. Public Respondent COMELEC is neither a

proper party to a Petition for
Disqualification nor can it initiate the
instant case motu propio;

iii. Petitioner’s re-election as Punong

Barangay of _______, is an expression of
the sovereign will of the electorate and
operates as a condonation by the
electorate of the misconduct committed
by an elective official during his previous
term;

iv. The _______ Resolution rendered by the

Regional Trial Court of _______ made the
preliminary injunction permanent on
account of the Aguinaldo Doctrine;

v. The electorate of Barangay _______, has

spoken such that any doubt should be
resolved in favor of Petitioner _______’
eligibility to run for public office.

5.6. Petitioner filed its Memorandum on _______,

raising the sole issue of whether or not Respondent’s
disqualified to run as a candidate pursuant to Section
40(b) of R.A. 7160.

______________________v. COMELEC
Petition for Certiorari
8|Page
 5.7. On _______, Public Respondent COMELEC
Second Division promulgated one of the assailed
Resolutions in the above-entitled case, which resolved
to grant the Petition of the Public Respondent
COMELEC. The dispositive portion of which reads:

“WHEREFORE, premises considered, the

Commission (Second Division) RESOLVED, as
it hereby RESOLVES, to GRANT the petition.
The Certificate of Candidacy of Respondent
_______ is hereby CANCELLED and his
proclamation, ANNULLED. Accordingly, the
Barangay Board of Canvassers is directed to
RECONVENE and PROCLAIM the next qualified
candidate who obtained the highest number of
votes as the duly-elected Punong Barangay of
_______.

SO ORDERED.”

5.8. The _______ Resolution was received by the

Petitioner, through his legal counsel, on _______.

5.9. Aggrieved thereby, Petitioner duly and timely

filed his Motion for Reconsideration thereto before
Public Respondent COMELEC on _______. This Motion for
Reconsideration was filed pursuant to Section 2, Rule
19 of the 1993 COMELEC Rules of Procedure, which
provides that a motion to reconsider a decision,
resolution, order, or ruling of a Division shall be filed
within five (5) days from the promulgation thereof. The
said Motion was elevated to Public Respondent
COMELEC En Banc.

5.10. Unfortunately, on _______, Public

Respondent COMELEC En Banc promulgated its
Resolution, which is likewise being challenged in this
Petition, denying Petitioner’s Motion for

______________________v. COMELEC
Petition for Certiorari
9|Page
Reconsideration and affirming the _______ Resolution of
Public Respondent COMELEC Second Division. The
dispositive portion of which reads:

“WHEREFORE, premises considered, the

Motion for Reconsideration dated _______ is
DENIED and the Resolution of the Commission
(Second Division) dated _______ is hereby is
hereby AFFIRMED.

SO ORDERED.

5.11. On _______, Petitioner received his copy of the

_______ Resolution of Public Respondent COMELEC En
Banc. Consequently, Petitioner has thirty (30) days
from notice thereof or until _______ to file a petition for
certiorari in accordance with Section 3 of Rule 64 in
relation to Section 1 of Rule 65 both of the 1997 Rules
of Civil Procedure.

5.12. Hence, the instant petition is timely filed

within the prescribed reglementary period under the
Rules of Civil Procedure.

VI.
GROUND IN SUPPORT OF THE PETITION

PUBLIC RESPONDENT COMELEC EN BANC

AND ITS SECOND DIVISION ACTED WITH
GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION
WHEN IT CANCELLED THE CERTIFICATE OF
CANDIDACY AND ANNULLED THE
PROCLAMATION OF PETITIONER _______ IN
CLEAR VIOLATION OF HIS

______________________v. COMELEC
Petition for Certiorari
10 | P a g e
 CONSTITUTIONAL RIGHT TO DUE PROCESS
OF LAW.

VII.
ARGUMENTS/DISCUSSION

7.1. Certiorari being an extraordinary remedy, the

party who seeks to avail of the same must strictly
observe the rules laid down by law. The extraordinary
writ of certiorari may be availed of only upon a showing,
in the minimum, that the respondent tribunal or officer
exercising judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or with
grave abuse of discretion.6

7.2. For a petition for certiorari and prohibition to

prosper and be given due course, it must be shown that:
(a) the respondent judge or tribunal issued the order
without or in excess of jurisdiction or with grave abuse
of discretion; or (b) the assailed interlocutory order is
patently erroneous, and the remedy of appeal cannot
afford adequate and expeditious relief.7

7.3. Grave abuse of discretion has been defined as

"a capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. Mere abuse of
discretion is not enough, it must be so grave as when
the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility, and
must be so patent and so gross as to amount to an
evasion of a positive duty or to a virtual refusal to
perform the duty enjoined or to act at all in
contemplation of law."8

6
Angelina Pahila-Garrido v. Eliza M. Tortogo, et al., G.R. No. 156358, August 17, 2011.
7
Id.
8
Tible and Tible Company, Inc. v. Royal Savings and Loan Association , G.R. No. 155806, April 8,
2008.
______________________v. COMELEC
Petition for Certiorari
11 | P a g e
 7.4. With all due respect, Petitioner _______ humbly
submits that Public Respondent COMELEC En Banc and
its Second Division acted with grave abuse of discretion
amounting to lack or excess of jurisdiction by issuing
the challenged Resolutions which cancelled the
Certificate of Candidacy and annulled the proclamation
of Petitioner _______.

PUBLIC RESPONDENT COMELEC

VIOLATED PETITIONER’S
CONSTITUTIONAL RIGHT TO DUE
PROCESS OF LAW BY NOT
ACTING AS AN IMPARTIAL
TRIBUNAL.

7.5. Petitioner _______ imputes grave abuse of

discretion against Public Respondent COMELEC
because the latter violated his constitutional right to
due process of law.

7.6. Due process in administrative proceedings has

been recognized to include the following: (1) the right to
actual or constructive notice to the institution of
proceedings which may affect a respondent's legal
rights; (2) a real opportunity to be heard personally or
with the assistance of counsel, to present witnesses
and evidence in one's favor, and to defend one's rights;
(3) a tribunal vested with competent jurisdiction and so
constituted as to afford a person charged
administratively a reasonable guarantee of honesty as
well as impartiality; and (4) a finding by said tribunal
which is supported by substantial evidence submitted
for consideration during the hearing or contained in the
records or made known to the parties affected.9

7.7. Due process necessarily requires that a

hearing be conducted before an impartial and

9
Supra note 1, citing Fabella v. CA, 346 Phil 940, 952-953 (1997); emphasis supplied.
______________________v. COMELEC
Petition for Certiorari
12 | P a g e
disinterested tribunal because unquestionably, every
litigant is entitled to nothing less than the cold
neutrality of an impartial judge. All the other elements
of due process, like notice and hearing, would be
meaningless if the ultimate decision would come from a
partial and biased judge.10

7.8. Petitioner _______ humbly submits that he was

not afforded the opportunity to defend his
disqualification case before an impartial and
disinterested tribunal.

7.9. According to Black’s Law Dictionary , impartial

means “favoring neither; disinterested; treating all alike;
unbiased; equitable; fair, and just.”11

7.10. With all due respect, Public Respondent

COMELEC did NOT act as an impartial and disinterested
Tribunal when it heard the disqualification case against
Petitioner _______ as shown by the following:

a. First, the disqualification case against

Petitioner _______ was filed motu propio by
Public Respondent COMELEC through its Law
Department;

b. Second, Public Respondent COMELEC

simultaneously acted as both the indictor and
adjudicator in the disqualification case of
Petitioner _______;

c. Third, Public Respondent COMELEC

disregarded and violated its own procedural
rules when it filed and took cognizance of the
disqualification case of Petitioner _______; and
10
Ma. Regina S. Peralta v. Judge George E. Omelio, A.M. No. RTJ-11-2259, October 22, 2013;
emphasis supplied.
11
Black’s Law Dictionary 752 (6th Edition, 1990)
______________________v. COMELEC
Petition for Certiorari
13 | P a g e
 d. Fourth, Public Respondent COMELEC
exhibited bias and partiality when it
stubbornly refused to summarily dismiss the
disqualification case notwithstanding the
mandate of Section 1, Rule 25 of COMELEC
Resolution No. 9523,12 in relation to COMELEC
Resolution No. 9749.13

PUBLIC RESPONDENT COMELEC

SIMULTANEOUSLY ACTED AS
BOTH THE INDICTOR AND
ADJUDICATOR IN THE
DISQUALIFICATION CASE OF
PETITIONER _______.

7.11. As mentioned above, the disqualification case

against Petitioner _______ was filed motu propio by
Public Respondent COMELEC through its Law
Department. The COMELEC Law Department is an
important and major division of the Public Respondent
such that the actions of the Law Department are
basically considered as actions of Public Respondent
COMELEC. That is why, when the Law Department
initiated and filed the disqualification case against
_______, the petitioner named therein is Public
Respondent COMELEC. Herein Public Respondent
cannot therefore deny that the indictor or petitioner in
the disqualification case of _______ is also the COMELEC.

7.12. Interestingly, the electoral tribunal which

took cognizance of the disqualification case of _______ is
also the Public Respondent COMELEC.

12
In the Matter of the Amendment to Rules 23, 24 and 25 of the COMELEC Rules of Procedure
for Purposes of the 13 May 2013 National, Local and ARMM Elections and Subsequent Elections,
promulgated on September 25, 2012.
13
Promulgated on July 26, 2013.
______________________v. COMELEC
Petition for Certiorari
14 | P a g e
 7.13. Hence, Petitioner _______ was placed in an
absurd situation wherein his indictor and adjudicator
are one and the same, i.e., Public Respondent
COMELEC.

7.14. And by acting as both the indictor and

adjudicator of Petitioner _______ in his disqualification
case, Public Respondent COMELEC cannot be
considered as an independent, disinterested and
impartial tribunal when it heard the petition for
disqualification against _______ from which stemmed the
challenged Resolutions in this case.

7.15. From the foregoing, it is very clear that the

Petitioner _______ was not afforded the opportunity to
defend his disqualification case before an impartial
tribunal. This constitutes a gross violation of his
constitutional right to due process of law which
requires that a hearing be conducted before an
impartial and disinterested tribunal because every
litigant is entitled to nothing less than the cold
neutrality of an impartial judge.

7.16. That being the case, the questioned _______

Resolutions of Public Respondent COMELEC, which
were promulgated in the disqualification case of _______,
should be declared as NULL and VOID by this Honorable
Supreme Court for having been issued with grave abuse
of discretion amounting to lack or excess of jurisdiction.

PUBLIC RESPONDENT COMELEC

VIOLATED ITS OWN PROCEDURAL
RULES WHEN IT FILED MOTU
PROPIO THE PETITION FOR
DISQUALIFICATION AGAINST
_______.

______________________v. COMELEC
Petition for Certiorari
15 | P a g e
 7.17. Aside from being the indictor and adjudicator
in the disqualification case of Petitioner _______, Public
Respondent COMELEC also exhibited its prejudice and
hostility against herein Petitioner when it filed motu
propio the petition for disqualification against him.

7.18. The motu propio filing of the disqualification

case was repeatedly objected by Petitioner _______ for
violating Section 2, Rule 25 of the COMELEC Rules of
Procedure, as amended by COMELEC Resolution No.
9523, which provides:

Rule 25 - Disqualification of
Candidates

Section 2. Who May File Petition for

Disqualification. — Any registered
voter or any duly registered political
party, organization or coalition of
political parties may file a verified
Petition to disqualify a candidate.

7.19. The above-quoted procedural rule

categorically provides that a petition for
disqualification may only be filed or initiated by
registered voter or any duly registered political party,
organization or coalition of political parties.

7.20. Here, the petition against _______ was filed by

no less than Public Respondent COMELEC, through its
Law Department. Needless to say, Public Respondent
COMELEC does not belong to the class of individual or
organization who may file a petition for disqualification
pursuant to Section 2, Rule 25 of the COMELEC Rules of
Procedure, as amended by COMELEC Resolution No.
9523.

______________________v. COMELEC
Petition for Certiorari
16 | P a g e
 7.21. It is a settled rule of statutory construction
that the express mention of one person, thing, or
consequence implies the exclusion of all others. The
rule is expressed in the familiar maxim, expressio unius
est exclusio alterius.14

7.22. Guided by the foregoing legal principle, it is

evident that Public Respondent COMELEC contravened
its own procedural rules by filing what they claimed to
be a petition for disqualification against _______ sans
authority and legal capacity to do so.

7.23. To repeat, Public Respondent COMELEC was

not included in the enumeration of Section 2, Rule 25 of
the COMELEC Rules of Procedure, as amended by
COMELEC Resolution No. 9523, to be among the
individuals or organizations who may file a petition for
disqualification. Stated differently, Public Respondent
COMELEC is evidently precluded from filing a petition
for disqualification against elected public officials .

7.24. These circumstances taken together

indubitably shows that the constitutional right of the
Petitioner to due process of law was indeed grossly
violated by the Public Respondent COMELEC because
the latter did NOT act an impartial tribunal. The
defenses of Petitioner _______, regardless of how
meritorious these may be, have clearly fallen on deaf
ears because the intention of Public Respondent
COMELEC from the beginning is to disqualify him as
Punong Barangay of _______.

PUBLIC RESPONDENT COMELEC

VIOLATED ITS OWN PROCEDURAL
RULES WHEN IT REFUSED TO
SUMMARILY DISMISS THE

14
Sario Malinias v. COMELEC, et al., G.R. No. 146943, October 4, 2002
______________________v. COMELEC
Petition for Certiorari
17 | P a g e
PETITION FOR DISQUALIFICATION
AGAINST _______, DESPITE
COMBINING THE GROUNDS FOR
DISQUALIFICATION AND PETITION
TO DENY DUE COURSE TO OR
CANCEL A CERTIFICATE OF
CANDIDACY.

7.25. This Honorable Supreme Court should further

take into account the bias and partiality exhibited by
Public Respondent COMELEC when it stubbornly
refused to summarily dismiss the disqualification case
notwithstanding the mandate of Section 1, Rule 25 of
COMELEC Resolution No. 9523, in relation to COMELEC
Resolution No. 9749.

7.26. Section 1, Rule 25 of COMELEC Resolution No.

9523, in relation to COMELEC Resolution No. 9749,
UNEQUIVOCALLY states that:

“Rule 25 – Disqualification of Candidates

Section 1. Grounds. – Any candidate who,

in an action or protest in which he is party, is
declared by final decision of a competent
court, guilty of, or found by the Commission to
be suffering from any disqualification provided
by law or the Constitution.

A Petition to Disqualify a Candidate

invoking grounds for a Petition to Deny to or
cancel a Certificate of Candidacy or Petition
to Declare a Candidate as Nuisance Candidate
or a combination thereof, shall be summarily
dismissed.” (Emphasis and underscoring
supplied)

______________________v. COMELEC
Petition for Certiorari
18 | P a g e
 7.27. A review of the petition for disqualification
filed against _______ would clearly reveal that it is a
COMBINATION of a Petition for Disqualification and a
Petition to Cancel or Deny Due Course a Certificate of
Candidacy.

7.28. While the caption of the petition expressly

states that it is for “Disqualification,” it’s body and
substance as well as the prayer interposed in the
petition plainly states that the same is indeed a FUSION
of both Disqualification and a Petition to Deny Due
Course to and cancel Certificate of Candidacy.

7.29. Also, it is noteworthy to mention that while

the petition prays for the Disqualification of Petitioner
_______, the first paragraph heading - TIMELINESS OF
THE PETITION, provides that the petition was filed
pursuant to Section 78 of the Omnibus Election Code,15
thus:

“The instant Petition is filed pursuant to

Section 78 of the Omnibus Election Code, as
implemented by Rule 25 of the COMELEC
Rules of Procedure, as amended by
Resolution No. 9523”

7.30. Section 78 of the Omnibus Election Code

refers to a Petition to Deny Due Course to and cancel
Certificate of Candidacy, thus:

Sec. 78. Petition to deny due course

to or cancel a certificate of
candidacy. - A verified petition
seeking to deny due course or to
cancel a certificate of candidacy
may be filed by the person
exclusively on the ground that any
15
Batas Pambansa Bilang 881, approved on December 3, 1985.
______________________v. COMELEC
Petition for Certiorari
19 | P a g e
 material representation contained
therein as required under Section 74
hereof is false. The petition may be
filed at any time not later than
twenty-five days from the time of the
filing of the certificate of candidacy
and shall be decided, after due
notice and hearing, not later than
fifteen days before the election.16

7.31. The foregoing provision of the Omnibus

Election Code was implemented by Rule 23 and not by
Rule 25 of the COMELEC Rules of Procedure, as
Amended by Resolution No. 9523, which states that:

Rule 23 - Petition to Deny Due Course

to or Cancel Certificates of
Candidacy

Section 1. Ground for Denial or

Cancellation of Certificate of
Candidacy. — A verified Petition to
Deny Due Course to or Cancel a
Certificate of Candidacy for any
elective office may be filed by any
registered voter or a duly registered
political party, organization, or
coalition of political parties on the
exclusive ground that any material
representation contained therein as
required by law is false.

A Petition to Deny Due Course to or

Cancel Certificate of Candidacy
invoking grounds other than those
stated above or grounds for
disqualification, or combining

16
Emphasis supplied.
______________________v. COMELEC
Petition for Certiorari
20 | P a g e
 grounds for a separate remedy, shall
be summarily dismissed.17

7.32. It is clear from the foregoing that Section 78

of the Omnibus Election Code has reference to the
cancellation or denial in due course of Certificate of
Candidacy. Yet at the same time, a perusal of the
arguments in the Petition filed against _______ would
readily show that Petitioner therein likewise prays for
disqualification of _______ to run for public office.

7.33. In fact, Rule 25 of the COMELEC Rules of

Procedure, as amended by Resolution No. 9523, was
also mentioned therein, to wit:

“Rule 25 - Disqualification of
Candidates
Section 1. Grounds. — Any candidate
who, in an action or protest in which
he is a party, is declared by final
decision of a competent court, guilty
of, or found by the Commission to be
suffering from any disqualification
provided by law or the Constitution.

A Petition to Disqualify a Candidate

invoking grounds for a Petition to
Deny to or Cancel a Certificate of
Candidacy or Petition to Declare a
Candidate as a Nuisance Candidate,
or a combination thereof, shall be
summarily dismissed.”

7.34. As discussed earlier, a petition for

disqualification cannot invoke grounds for a Petition to
Deny or Cancel Certificate of Candidacy because
combining grounds for these two separate legal
17
Emphasis supplied.
______________________v. COMELEC
Petition for Certiorari
21 | P a g e
remedies is violative of Section 1, Rule 25 of COMELEC
Resolution No. 9523, to wit:

Rule 25 – Disqualification of
Candidates

Section 1. Grounds. – Any

candidate who, in an action or
protest in which he is a party, is
declared by final decision of a
competent court, guilty of, or found
by the Commission to be suffering
from any disqualification provided by
law or the Constitution.

A Petition to Disqualify a
Candidate invoking grounds for a
Petition to Deny to or cancel a
Certificate of Candidacy or Petition
to Declare a Candidate as Nuisance
Candidate, or a combination thereof,
shall be summarily dismissed.18

7.35. Accordingly, by combining two distinct and

separate remedies, Public Respondent COMELEC is
mandated by the rules to summarily dismiss the petition
filed against _______.

7.36. The use of the words “SHALL” by the Public

Respondent COMELEC En Banc when it promulgated
Section 1, Rule 25 of COMELEC Resolution No. 9523 in
relation to COMELEC Resolution No. 9749 connotes the
MANDATORY nature of the directive to summarily
dismiss similar to the instant petition.

7.37. Consequently, Public Respondent COMELEC

committed a GRAVE ERROR in granting the Petition
18
Emphasis and underscoring supplied.
______________________v. COMELEC
Petition for Certiorari
22 | P a g e
instead of dismissing the same as mandated under its
own procedural rules. This evidently shows that Public
Respondent COMELEC did not act with impartiality
when it heard the disqualification case of _______.

7.38. The cardinal precept is that where there is a

violation of basic constitutional rights, courts are
ousted from their jurisdiction. The violation of a party's
right to due process raises a serious jurisdictional issue
which cannot be glossed over or disregarded at will.
Where the denial of the fundamental right to due
process is apparent, a decision rendered in disregard of
that right is void for lack of jurisdiction. This rule is
equally true in quasi-judicial and administrative
proceedings, for the constitutional guarantee that no
man shall be deprived of life, liberty, or property without
due process is unqualified by the type of proceedings
(whether judicial or administrative) where he stands to
lose the same.19[Emphasis supplied.]

7.39. Although administrative procedural rules are

less stringent and often applied more liberally,
administrative proceedings are not exempt from basic
and fundamental procedural principles, such as the
right to due process in investigations and
20
hearings. [Emphasis supplied.]

7.40. That said, it is the humble submission of

Petitioner _______ that his constitutional rights to due
process of law was grossly violated by Public
Respondent COMELEC.

7.41. All told, it is the humble submission of

Petitioner _______ that there exists ample grounds to
warrant the NULLIFICATION of the challenged
Resolutions of Public Respondent COMELEC dated April

19
Supra note 1.
20
Supra note 1, citing Civil Service Commission v. Lucas, 361 Phil 486, 491 (1999).
______________________v. COMELEC
Petition for Certiorari
23 | P a g e
12, 2016 and August 31, 2016 for being rendered in
violation of due process of law and for being issued with
grave abuse of discretion amounting to lack or excess
of jurisdiction.

VIII.
ALLEGATIONS IN SUPPORT OF AN URGENT PRAYER
FOR ISSUANCE OF TEMPORARY RESTRAINING ORDER
AND/OR STATUS QUO ANTE ORDER AND/OR
PRELIMINARY INJUNCTION

8.1. Petitioner _______ respectfully submits and

prays to this Honorable Supreme Court En Banc the
importance and urgency of the issuance of a Temporary
Restraining Order and/or Status Quo Ante Order and/or
Writ of Preliminary Injunction in the above-entitled case
because Public Respondent COMELEC is about to
implement grossly defective and infirm Resolutions,
which were issued in contravention of Petitioner’s
constitutional rights to due process of law, such that
there is a paramount necessity for the issuance of the
said ancillary writs to prevent serious and irreparable
damage and prejudice not only to the Petitioner, but the
electorate _______ who will then be unduly deprived of
their duly elected Punong Barangay.

8.2. If sanctioned and not properly corrected, the

very essence of this electoral process is defeated and
the exercise of right by the Petitioner as guaranteed by
procedural and substantive laws is sacrificed. Hence,
immediate judicial intervention is highly necessary for
the protection of public interest, instill order and attain
justice.

8.3. Petitioner _______ is entitled to the reliefs

prayed for because his constitutional right to due
process was violated by the Public Respondent, and
such relief consists in restraining Public Respondent

______________________v. COMELEC
Petition for Certiorari
24 | P a g e
COMELEC from further committing the acts complained
of by means of the issuance of a Temporary Restraining
Order and/or Status Quo Ante Order and/or Writ of
Preliminary Injunction.

8.4. The commission or continuance of the act

complained of, i.e. the cancellation of Petitioner’s
Certificate of Candidacy and the annulment of his
proclamation as Punong Barangay, would certainly work
injustice to the Petitioner and cause irreparable
damage to him and the electorate of _______.

8.5. More importantly, it is also noteworthy to take

into account that the instant case does not only involve
the private interest of Petitioner, but the exercise of the
sovereign will of the electorate which should be
respected, protected and given full force and effect by
this Honorable Supreme Court.

8.6. Petitioner is willing to post an injunction bond

in such amount as this Honorable Supreme Court En
Banc may fix, conditioned on the payment of damages
in favor of Respondents to answer for possible damages
in case judgment will be adversed to the Petitioner.

8.7. In compliance with the Rule requiring a

supporting affidavit, Petitioner has verified all the
averments of the Petition, including those supporting
the petition for issuance of a Temporary Restraining
Order and/or Status Quo Ante Order and/or Writ of
Preliminary Injunction.

PRAYER

WHEREFORE, premises considered, it is most

respectfully prayed of this Honorable Supreme Court En
Banc that:
______________________v. COMELEC
Petition for Certiorari
25 | P a g e
 i. Upon the filing of this Petition and finding that
the same is sufficient in form and substance that a
TEMPORARY RESTRAINING ORDER (TRO) and/or
STATUS QUO ANTE ORDER and/or WRIT OF
PRELIMINARY INJUNCTION be issued forthwith,
commanding and directing Public Respondent COMELEC
En Banc to CEASE and DESIST from implementing the
challenged Resolutions of Public Respondent COMELEC
dated _______.

After due proceedings to render a

Decision/Resolution granting the Petition and ordering
the issuance of:

ii. The WRIT OF CERTIORARI declaring the

questioned Resolutions of Public Respondent COMELEC
dated _______ as NULL and VOID for having been issued
with grave abuse of discretion amounting to lack or
excess of jurisdiction;

iii. To REVERSE the cancellation of Petitioner’s

Certificate of Candidacy and the annulment of his
proclamation as Punong Barangay of _______; and

iv. To UPHOLD the candidacy, election and

proclamation of Petitioner _______ as Punong Barangay
of _______.

ALL IN THE INTEREST OF JUSTICE AND FAIR PLAY

Such other relief and remedies, just and equitable

under the premises are likewise prayed.

City of Manila, Philippines, _______.

______________________v. COMELEC
Petition for Certiorari
26 | P a g e
 _______ LAW OFFICE
Counsel for the Petitioner

Copies furnished:

COMMISSION ON ELECTIONS
Public Respondent
8th Floor Palacio del Gobernador Building
Gen. Luna Street corner Andres Soriano Jr. Avenue
Intramuros, Manila 1002.

OFFICE OF THE SOLICITOR GENERAL

134 Amorsolo Street, Legaspi Village
Makati City

EXPLANATION
[Pursuant to Rule 13, Section 11, 1997 Rules of Civil
Procedure]

Copies of the foregoing Petition for Certiorari…

were served to the above-mentioned parties by
registered mail, personal service being impractical due
to distance, time and manpower constraints.

_______

______________________v. COMELEC
Petition for Certiorari
27 | P a g e