EN BANC

[G.R. No. 134167. January 20, 2000]

NASSER IMMAM, petitioner, vs. COMMISSION ON ELECTIONS and HADJI YUSOPH

LIDASAN, respondents. ULANDU

DECISION

YNARES-SANTIAGO, J.:

Petitioner Nasser Immam filed this petition for certiorari under Rule 65 of the Revised Rules of
Court, alleging that public respondent Commission on Elections en banc ("COMELEC")
committed grave abuse of discretion when it issued order dated June 29, 1998, to wit:[1]

CONSOLIDATED ORDER

Without prejudice to the issuance at a later time of a formal Resolution in these

cases, but based on the pleadings, the evidence adduced during the hearing, the
allegations uncontroverted by the parties and facts established therein, the effects
and consequences of the proclamation for the position of Municipal Mayor
per Certificate of Canvass of Votes and Proclamation with SN 12471426 issued
by the Municipal Board of Canvassers of Matanog, Maguindanao is hereby
suspended. As a corollary consequence, Nasser Imam is directed to cease and
desist from taking his oath of office as Municipal Mayor and from discharging the
functions of said office.

The facts are undisputed. Me-sm

Petitioner Nasser Immam and private respondent Hadji Yusoph Lidasan were both candidates for
Mayor of Matanog, Maguindanao in the May 11, 1998 elections.

On election day, fifty-five (55) precincts, manned by their respective board of election inspectors
were opened in the municipality.[2]

On May 16, 1998 the COMELEC (Office of the Election Officer, Matanog, Maguindanao)
issued a certification that only the votes cast in forty-one (41) out of the fifty-five (55) precincts
were counted. The COMELEC certified that fourteen (14) ballot boxes consisting of 2,398
registered voters failed to function. Seven (7) of the fourteen (14) ballot boxes were deposited in
the office of the provincial election supervisor, Cotabato City, while the other seven (7) were
deposited for safe-keeping with the 1506th (405) Provincial Mobile Group Parang,
Maguindanao.[3]
On May 22, 1998 private respondent filed with the COMELEC, a "Petition to Count the Ballots
Cast on May 11, 1998[4] and for Holding of Special Elections[5]. . . with Urgent Prayer for
Issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction"[6] which was
docketed as SPA Case No. 98-348. The petition alleged that election inspectors of fourteen (14)
precincts left the polling places due to "violence, terrorism, and armed threats perpetrated by
armed men, hence the continuation of voting did not take place."[7]

On May 29, 1998, while the petition was still pending with the COMELEC, the Municipal Board
of Canvassers of Matanog issued a Certificate of Canvass of Votes and proclaimed petitioner as
the duly elected mayor garnering a total of one thousand six hundred twenty four (1,624) votes.[8]

On June 1, 1998, Election Officer III, Abas A. Saga submitted a report to the COMELEC
hereinunder quoted in full:[9]

Hon. Commission-In-Charge
for Regions IX & XII
Commission on Elections
Manila

Subject Report on the Result of Elections

: in Matanog, Maguindanao

Sir: S-l-x

The municipality of Matanog has 55 precincts. Only 41 precincts have functioned

during the May 11, 1998 elections. Fourteen were not included in the counting
due to the incidence of violence for the 7 boxes and no election was actually held
in the 7 other boxes as BEIs reported.

On May 13, 1998 I reported the matter to the Commission and together requested
for the special elections in the 14 precincts that failed to function. Unfortunately,
until May 26, 1998 no petition was filed by any candidate moving for special
election. Now, although the Matanog problem was among the subjects of the
Commission Minutes-Resolution dated May 26, 1998, it was not however among
the places where special elections shall be held on May 30, 1998.

Considering this time delay, threats of my life from among the candidates has
become obvious. This is the thing, aside from the fact that there has been no
Comelec Resolution and pending petition, has become the catalyst towards
considering the Urgent Motion filed by petitioner Imam and proceeded to the
mandates of the law to determine from the Statement of the Votes by Precinct as
to who are the winners and proclaimed.

Relative to the said proclamation may I furnish the herein copies of COC &
Proclamation with SN 12471426, Minutes of the MBC and the Urgent Motion for
the MBC to reconvene filed by the petitioner's counsel.
 I shall appreciate your kind consideration hereof.

Very truly yours,

(Sgd.) ABAS A. SAGA

Election Officer III

On June 3, 1998, private respondent again filed a petition with the COMELEC docketed as SPC
Case No. 98-223, praying that the proclamation of petitioner be declared void and that all acts
emanating from the said proclamation also be voided.[10] M-issdaa

Despite the pendency of the aforesaid petitions, petitioner took his oath of office on June 25,
1998.[11]

On June 29, 1998, the COMELEC issued its assailed order which suspended the effects and
consequences of petitioner's proclamation pending its resolution of SPA Case No. 98-348 and
SPA Case No. 98-223.[12]

Petitioner is now before this Court praying for the issuance of a temporary restraining order
directing the COMELEC to cease and desist from enforcing and implementing the questioned
order.[13]

On July 21, 1998, this Court issued a Resolution directing the parties to maintain the status quo
ante and ordering the COMELEC in the meantime to desist from implementing its June 29, 1998
order and to allow petitioner to continue to discharge his functions as mayor of Matanog,
Maguindanao.[14] On August 11, 1998, upon petitioner's urgent motion, [15] this Court clarified that
under the July 21, 1998 Resolution, petitioner was allowed to "discharge his functions as Mayor
of Matanog, Maguindanao, until the validity of the Commission on Elections' Order is resolved
by this Court."[16]

We shall discuss the petitioner's arguments against the COMELEC order of June 29,
1998 seriatim.

First.  Petitioner claims it is unfair that he is the only candidate whose proclamation was
suspended considering that all other officials of the local government of Matanog were
proclaimed on the basis of the same Certificate of Canvass and Election Returns. Petitioner asks,
"How could a proclamation be valid for some and be invalid for (him) x x x?"[17]

We are not persuaded.

To be sure, the order does not deal with the validity or invalidity of the proclamations of
petitioner and of the other officials. It merely suspended the effects and consequences of the
proclamation of petitioner "without prejudice to the issuance at a later time of a formal resolution
in these cases (SPA Case No. 98-348 and SPC Case No. 98-223)."[18] The order does not decide
the two petitions on the merits.
The validity or invalidity of the election of petitioner and the other candidates are still subject to
the determination of SPA Case No. 98-348 and SPC Case No. 98-223.

If the special election  and counting of ballots were to be held only for the position of mayor,
then unfairness would result. In Tupay T. Loong v. Commission in Elections and Abdusakur Tan,
[19]
  we held that a special election only for the position of Governor cannot be sanctioned since
other officials already serving their terms were proclaimed on the basis of the same manually
counted votes. Thus, to hold a special election only for one position would be discriminatory and
violative of the private respondent's right to equal protection of the laws. Such is not the case
here.

Moreover, while it is true that only petitioner's proclamation was affected by the assailed order,
we note that he was singled out by private respondent who filed the petitions and not by public
respondent COMELEC. Since he was the only one impleaded, then only his proclamation was
suspended. Sd-aad-sc

Second.  Petitioner argues that it was error on the part of public respondent COMELEC to
suspend the effects of petitioner's election as it would create a hiatus in government service.
According to the petition, "It will be totally unfair to petitioner and the rest of the electorate of
Matanog, Maguindanao to be deprived of a Mayor just because of the indecisiveness and
inaction of respondent COMELEC on the issue of whether or not to hold special election in these
fourteen (14) precincts."[20]

Petitioner's argument lacks merit.

While it may be true that Matanog will be temporarily deprived of a mayor, greater unfairness
would result if the voters were disenfranchised. A greater evil occurs when one not properly
voted for sits in a position of power without the clear mandate of the people.

Jurisprudence provides that all votes cast in an election must be considered, otherwise voters
shall be disenfranchised.[21] A canvass cannot be reflective of the true vote of the electorate
unless and until all returns are considered and none is omitted.[22] In this case, fourteen (14)
precincts were omitted in the canvassing.

Even the hiatus which would allegedly result is imagined. The Local Government Code provides
a solution in case of a temporary vacancy in the office of the mayor.[23] This provision may be
applied in this case of a temporary suspension of the effects and consequences of petitioner's
proclamation as Mayor of Matanog, Maguindanao.

Hence, we find no grave abuse in the COMELEC's suspension of petitioner's proclamation.

Third.  Petitioner contends that the COMELEC had no jurisdiction to order petitioner to "cease
and desist" from taking his oath of office as Mayor of Matanog considering that there was no
pending pre-proclamation issue. Rtc-spped
Records show that on May 16, 1998 a certification was issued by the Office of the Election
Officer, Matanog, Maguindanao, stating:[24]

"Considering the number of voters whose precincts failed to function will

materially affect the total results of elections, NO proclamation will be made until
such time proper and legal to do so."

Despite the certification, the municipal board of canvassers proceeded to proclaim petitioner as
the mayoral winner.

At the time the proclamation was made, the COMELEC had not yet resolved the Petition for
Canvassing of Votes and Petition for Special Elections filed on May 22, 1998. Pursuant to
Sections 245[25] and 238[26] of the Omnibus Election Code, the Board of Canvassers should not
have proclaimed any candidate absent the authorization from the COMELEC. Any proclamation
made under such circumstances is void ab initio.[27]

An incomplete canvass of votes is illegal and cannot be the basis of a subsequent proclamation.
[28]
 A canvass cannot be reflective of the true vote of the electorate unless all returns are
considered and none is omitted.[29] This is true when the election returns missing or not counted
will affect the results of the election.[30]

We note that the votes of petitioner totaled one thousand nine hundred and sixty one (1,961)
while private respondent garnered a total of one thousand nine hundred thirty (1,930) votes. The
difference was only thirty-one (31) votes. There were fourteen (14) precincts[31]unaccounted for
whose total number of registered voters are two thousand three hundred and forty eight (2,348).
[32]
 Surely, these votes will affect the result of the election. Consequently, the non-inclusion of
the 14 precincts in the counting disenfranchised the voters. Scl-aw

We therefore find that COMELEC had sufficient reason to suspend the proclamation of
petitioner.

Fourth. Petitioner alleges that the questioned order was issued without any motion for its
issuance and without notice and hearing. Thus, he claims, his right to due process was violated.
He alleges that the order was issued in an apparent haste "to beat the deadline of noon of June
30, 1998 - the start of the term of elective local officials as provided under the 1991 Local
Government Code."[33]

The accusation imputed on COMELEC must fail as there is a presumption of good faith and
regularity in the performance of official duty which petitioner miserably failed to rebut.

On the question of due process, we likewise reject petitioner's argument.

The essence of due process is the opportunity to be heard. [34] The right to be heard does not only
refer to the right to present verbal arguments in court. A party can be heard through the pleadings
he submits.[35]
In Jardiel v. Commission on Elections,[36]  petitioner controverted the complaint of respondents
with affidavits. In that case, we ruled that with substantial evidence from both parties on hand,
the Commission on Elections can consider the case submitted for decision.

In the case at bar, petitioner was heard by the COMELEC through the memorandum he
submitted.

Fifth. Petitioner assails the order issued by the COMELEC en banc. The consolidated

cases[37] were originally heard by the COMELEC's First Division. Petitioner contends that his
right to due process was violated when the case was transferred to the COMELEC en
banc without notice to him. Sl-xm-is

We note that it is petitioner himself who prayed that petition SPA 98-348 be heard by the
Commission en banc.[38] And rightly so. The law provides that petitions for a special election
must be addressed to the COMELEC sitting en banc. Section 6 of the Omnibus Election Code
should be read in relation to Section 4 of R.A. No. 7166 which provides:

Sec. 4. Postponement, Failure of Election and Special Elections - The

postponement, declaration of failure of elections and the calling of special
elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code shall
be decided by the Commission en banc by a majority vote of its members. The
causes for the declaration of a failure of election may occur before or after casting
of votes or on the day of the election.

The grounds for failure of election (force majeure, terrorism, fraud or other analogous cases)
involve questions of fact which can only be determined by the COMELEC en banc after due
notice and hearing to the parties.[39]

The fact that petitioner was not given notice specifically stating that the case was transferred to
the en banc did not affect the legality of the order. In administrative proceedings, technical rules
of procedure and evidence are not strictly applied. Administrative process cannot be fully
equated with due process in the strict judicial sense. Indeed, deprivation of due process cannot be
successfully invoked where a party was given the chance to be heard.[40]

WHEREFORE, the instant petition for Certiorari is DISMISSED finding no grave abuse of

discretion on the part of public respondent COMELEC. Accordingly, our status quo ante order
contained in the Resolution dated July 21, 1998 is LIFTED.

No costs.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima,
Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur.

Panganiban, J., in the result.2/17/00 9:59 AM

Pardo, J., no part.