4/14/24, 12:19 PM [ G.R. Nos. L-68379-81.

September 22, 1986 ]

228 Phil. 193

EN BANC
[ G.R. Nos. L-68379-81. September 22, 1986 ]
EVELIO B. JAVIER, PETITIONER, VS. THE COMMISSION ON
ELECTIONS, AND ARTURO F. PACIFICADOR, RESPONDENTS.
DECISION

CRUZ, J.:

The new Solicitor General has moved to dismiss this petition on the ground that as a result of
supervening events it has become moot and academic. It is not as simple as that. Several lives
have been lost in connection with this case, including that of the petitioner himself. The private
respondent is now in hiding. The purity of suffrage has been defiled and the popular will
scorned through a confabulation of those in authority. This Court cannot keep silent in the face
of these terrible facts. The motion is denied.

The petitioner and the private respondent were candidates in Antique for the Batasang Pambansa
in the May 1984 elections. The former appeared to enjoy more popular support but the latter
had the advantage of being the nominee of the KBL with all its perquisites of power. On May
13, 1984, the eve of the elections, the bitter contest between the two came to a head when
several followers of the petitioner were ambushed and killed, allegedly by the latter's men.
Seven suspects, including respondent Pacificador, are now facing trial for these murders. The
incident naturally heightened tension in the province and sharpened the climate of fear among
the electorate. Conceivably, it intimidated voters against supporting the Opposition candidate or
into supporting the candidate of the ruling party.

It was in this atmosphere that the voting was held, and the post-election developments were to
run true to form. Owing to what he claimed were attempts to railroad the private respondent's
proclamation, the petitioner went to the Commission on Elections to question the canvass of the
election returns. His complaints were dismissed and the private respondent was proclaimed
winner by the Second Division of the said body. The petitioner thereupon came to this Court,
arguing that the proclamation was void because made only by a division and not by the
Commission on Elections en banc as required by the Constitution. Meanwhile, on the strength
of his proclamation, the private respondent took his oath as a member of the Batasang
Pambansa.

The case was still being considered by this Court when on February 11, 1986, the petitioner was
gunned down in cold blood and in broad daylight. The nation, already indignant over the
obvious manipulation of the presidential elections in favor of Marcos, was revolted by the
killing, which flaunted a scornful disregard for the law by the assailants who apparently believed
they were above the law. This ruthless murder was possibly one of the factors that strengthened
the cause of the Opposition in the February revolution that toppled the Marcos regime and
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installed the present government under President Corazon C. Aquino.

The abolition of the Batasang Pambansa and the disappearance of the office in dispute between
the petitioner and the private respondent - both of whom have gone their separate ways - could
be a convenient justification for dismissing this case. But there are larger issued involved that
must be resolved now, once and for all, not only to dispel the legal ambiguities here raised. The
more important purpose is to manifest in the clearest possible terms that this Court will not
disregard and in effect condone wrong on the simplistic and tolerant pretext that the case has
become moot and academic.

The Supreme Court is not only the highest arbiter of legal questions but also the conscience of
the government. The citizen comes to us in quest of law but we must also give him justice. The
two are not always the same. There are times when we cannot grant the latter because the issue
has been settled and decision is no longer possible according to the law. But there are also times
when although the dispute has disappeared, as in this case, it nevertheless cries out to be
resolved. Justice demands that we act then, not only for the vindication of the outraged right,
though gone, but also for the guidance of and as a restraint upon the future.

It is a notorious fact decried by many people and even by the foreign press that elections during
the period of the Marcos dictatorship were in the main a desecration of the right of suffrage.
Vote-buying, intimidation and violence, illegal listing of voters, falsified returns, and other
elections anomalies misrepresented and vitiated the popular will and led to the induction in
office of persons who did not enjoy the confidence of the sovereign electorate. Genuine
elections were a rarity. The price at times was human lives. The rule was chicanery and
irregularity, and on all levels of the polls, from the barangay to the presidential. This included
the rigged plebiscites and referenda that also elicited the derision and provoked the resentments
of the people.

Antique in 1984 hewed to the line and equaled if it did not surpass the viciousness of elections
in other provinces dominated by the KBL. Terrorism was a special feature, as demonstrated by
the killings previously mentioned, which victimized no less than one of the main protagonists
and implicated his rival as a principal perpetrator. Opposition leaders were in constant peril of
their lives even as their supporters were gripped with fear of violence at the hands of the party in
power.

What made the situation especially deplorable was the apparently indifferent attitude of the
Commission on Elections toward the anomalies being committed. It is a matter of record that
the petitioner complained against the terroristic acts of his opponents. All the electoral body did
was refer the matter to the Armed Forces without taking a more active step as befitted its
constitutional role as the guardian of free, orderly and honest elections. A more assertive stance
could have averted the Sibalom election eve massacre and saved the lives of the nine victims of
the tragedy.

Public confidence in the Commission on Elections was practically nil because of its transparent
bias in favor of the administration. This prejudice left many opposition candidates without
recourse except only to this Court.

Alleging serious anomalies in the conduct of the elections and the canvass of the election
returns, the petitioner went to the Commission on Elections to prevent the impending
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proclamation of his rival, the private respondent herein.[1] Specifically, the petitioner charged
that the elections were marred by "massive terrorism, intimidation, duress, vote-buying, fraud,
tampering and falsification of election returns under duress, threat and intimidation, snatching of
ballot boxes perpetrated by the armed men of respondent Pacificador."[2] Particular mention was
made of the municipalities of Caluya, Cabate, Tibiao, Barbaza, Laua-an, and also of San
Remigio, where the petitioner claimed the election returns were not placed in the ballot boxes
but merely wrapped in cement bags or manila paper.

On May 18, 1984, the Second Division of the Commission on Elections directed the provincial
board of canvassers of Antique to proceed with the canvass but to suspend the proclamation of
the winning candidate until further orders.[3] On June 7, 1984, the same Second Division
ordered the board to immediately convene and to proclaim the winner without prejudice to the
outcome of the case before the Commission.[4] On certiorari before this Court, the proclamation
made by the board of canvassers was set aside as premature, having been made before the lapse
of the 5-day period of appeal, which the petitioner had seasonably made.[5] Finally, on July 23,
1984, the Second Division promulgated the decision now subject of this petition which inter alia
proclaimed Arturo F. Pacificador the elected assemblyman of the province of Antique.[6]

This decision was signed by Chairman Victoriano Savellano and Commissioners Jaime Opinion
and Froilan M. Bacungan. Previously asked to inhibit himself on the ground that he was a
former law partner of private respondent Pacificador, Opinion had refused.[7]

The petitioner then came to this Court, asking us to annul the said decision.

The core question in this case is one of jurisdiction, to wit: Was the Second Division of the
Commission on Elections authorized to promulgate its decision of July 23, 1984, proclaiming
the private respondent the winner in the election?

The applicable provisions are found in Article XII-C, Sections 2 and 3, of the 1973 Constitution.

Section 2 confers on the Commission on Elections the power to:

"(2) Be the sole judge of all contests relating to the election, returns and
qualifications of all member of the Batasang Pambansa and elective provincial and
city officials."

Section 3 provides:

"The Commission on Elections may sit en banc or in three divisions. All election
cases may be heard and decided by divisions except contests involving members of
the Batasang Pambansa, which shall be heard and decided en banc. Unless
otherwise provided by law, all election cases shall be decided within ninety days
from the date of their submission for decision."

While both invoking the above provisions, the petitioner and the respondents have arrived at
opposite conclusions. The records are voluminous and some of the pleadings are exhaustive and
in part even erudite. And well they might be, for the noble profession of the law - despite all the
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canards that have been flung against it - exerts all efforts and considers all possible viewpoints
in its earnest search of the truth.

The petitioner complains that the proclamation made by the Second Division is invalid because
all contests involving the members of the Batasang Pambansa come under the jurisdiction of the
Commission on Elections en banc. This is as it should be, he says, to insure a more careful
decision, considering the importance of the offices involved. The respondents, for their part,
argue that only contests need to be heard and decided en banc and all other cases can be - in fact,
should be - filed with and decided only by any of the three divisions.

The former Solicitor General makes much of this argument and lays a plausible distinction
between the terms "contests" and "cases" to prove his point.[8] Simply put, his contention is that
the pre-proclamation controversy between the petitioner and the private respondent was not yet
a contest at that time and therefore could be validly heard by a mere division of the Commission
on Elections, consonant with Section 3. The issue was at this stage still administrative and so
was resoluble by the Commission under its power to administer all laws relative to the conduct
of elections,[9] not its authority as sole judge of the election contest.

A contest, according to him, should involve a contention between the parties for the same office
"in which the contestant seeks not only to oust the intruder but also to have himself inducted
into the office."[10] No proclamation had as yet been made when the petition was filed and later
decided. Hence, since neither the petitioner nor the private respondent had at that time assumed
office, there was no Member of the Batasang Pambansa from Antique whose election, returns or
qualifications could be examined by the Commission on Elections en banc.

In providing that the Commission on Elections could act in division when deciding election
cases, according to this theory, the Constitution was laying down the general rule. The
exception was the election contest involving the members of the Batasang Pambansa, which had
to be heard and decided en banc.[11] The en banc requirement would apply only from the time a
candidate for the Batasang Pambansa was proclaimed as winner, for it was only then that a
contest could be permitted under the law. All matters arising before such time were, necessarily,
subject to decision only by division of the Commission as these would come under the general
heading of "election cases."

As the Court sees it, the effect of this interpretation would be to divide the jurisdiction of the
Commission on Elections into two, viz.: (1) over matters arising before the proclamation, which
should be heard and decided by division in the exercise of its administrative power; and (2) over
matters arising after the proclamation, which could be heard and decided only en banc in the
exercise of its judicial power. Stated otherwise, the Commission as a whole could not act as sole
judge as long as one of its divisions was hearing a pre-proclamation matter affecting the
candidates for the Batasang Pambansa because there was as yet no contest; or to put it still
another way, the Commission en banc could not do what one of its divisions was competent to
do, i.e., decide a pre-proclamation controversy. Moreover, a mere division of the Commission
on Elections could hear and decide, save only those involving the election, returns and
qualifications of the members of the Batasang Pambansa, all cases involving elective provincial
and city officials from start to finish, including pre-proclamation controversies and up to the
election protest. In doing so, it would exercise first administrative and then judicial powers.

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But in the case of the Commission en banc, its jurisdiction would begin only after the
proclamation was made and a contest was filed and not at any time and on any matter before
that, and always in the exercise only of judicial power.

This interpretation would give to the part more powers than were enjoyed by the whole, granting
to the division while denying to the banc. We do not think this was the intention of the
Constitution. The framers could not have intended such an irrational rule.

We believe that in making the Commission on Elections the sole judge of all contests involving
the election, returns and qualifications of the members of the Batasang Pambansa and elective
provincial and city officials, the Constitution intended to give it full authority to hear and decide
these cases from beginning to end and on all matters related thereto, including those arising
before the proclamation of the winners.

If is worth observing that the special procedure for the settlement of what are now called "pre-
proclamation controversies" is a relatively recent innovation in our laws, having been introduced
only in 1978, through P.D. No. 1296, otherwise known as the 1978 Election Code, Section 175
thereof provided:

"Sec. 175. Suspension and annulment of proclamation. - The Commission shall be

the sole judge of all pre-proclamation controversies and any of its decisions, orders
or rulings shall be final and executory. It may, motu proprio or upon written petition,
and after due notice and hearing order the suspension of the proclamation of a
candidate-elect or annul any proclamation, if one has been made, on any of the
grounds mentioned in Sections 172, 173 and 174 thereof."

Before that time all proceedings affecting the election, returns and qualifications of public
officers came under the complete jurisdiction of the competent court or tribunal from beginning
to end and in the exercise of judicial power only. It therefore could not have been the intention
of the framers in 1935, when the Commonwealth Charter was adopted, and even in 1973, when
the past Constitution was imposed, to divide the electoral process into the pre-proclamation
stage and the post-proclamation stage and to provide for a separate jurisdiction for each stage,
considering the first administrative and the second judicial.

Besides, the term "contest" as it was understood at the time Article XII-C, Section 2(2) was
incorporated in the 1973 Constitution did not follow the strict definition of a contention between
the parties for the same office. Under the Election Code of 1971, which presumably was taken
into consideration when the 1973 Constitution was being drafted, election contests included the
quo warranto petition that could be filed by any voter on the ground of disloyalty or ineligibility
of the contestee although such voter was himself not claiming the office involved.[12]

The word "contests" should not be given a restrictive meaning; on the contrary, it should receive
the widest possible scope conformably to the rule that the words used in the Constitution should
be interpreted liberally. As employed in the 1973 Constitution, the term should be understood as
referring to any matter involving the title or claim of title to an elective office, made before or
after proclamation of the winner, whether or not the contestant is claiming the office in dispute.
Needless to stress, the term should be given a consistent meaning and understood in the same
sense under both Section 2(2) and Section 3 of Article XII-C of the Constitution.

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The phrase "election, returns and qualifications" should be interpreted in its totality as referring
to all matters affecting the validity of the contestee's title, But if it is necessary to specify, we
can say that "election" referred to the conduct of the polls, including the listing of voters, the
holding of the electoral campaign, and the casting and counting of the votes; "returns" to the
canvass of the returns and the proclamation of the winners, including questions concerning the
composition of the board of canvassers and the authenticity of the election returns; and
"qualifications" to matters that could be raised in a quo warranto proceeding against the
proclaimed winner, such as his disloyalty or ineligibility or the inadequacy of his certificate of
candidacy.

All these came under the exclusive jurisdiction of the Commission on Elections insofar as they
applied to the members of the defunct Batasang Pambansa and, under Article XII-C, Section 3,
of the 1973 Constitution, could be heard and decided by it only en banc.

We interpret "cases" as the generic term denoting the actions that might be heard and decided by
the Commission on Elections, only by division as a general rule except where the case was a
"contest" involving members of the Batasang Pambansa, which had to be heard and decided en
banc.

As correctly observed by the petitioner, the purpose of Section 3 in requiring that cases
involving members of the Batasang Pambansa be heard and decided by the Commission en banc
was to insure the most careful consideration of such cases. Obviously, that objective could not
be achieved if the Commission could act en banc only after the proclamation had been made, for
it might then be too late already. We are all-too-familiar with the grab-the-proclamation-and-
delay-the-protest strategy of many unscrupulous candidates which has resulted in the frustration
of the popular will and the virtual defeat of the real winners in the election. The respondent's
theory would make this gambit possible for the pre-proclamation proceedings, being summary
in nature, could be hastily decided by only three members in division, without the care and
deliberation that would have otherwise been observed by the Commission en banc.

After that, the delay. The Commission en banc might then no longer be able to rectify in time
the proclamation summarily and not very judiciously made by the division. While in the end the
protestant might be sustained, he might find himself with only a Phyrric victory because the
term of his office would have already expired.

It may be argued that in conferring the initial power to decide the pre-proclamation question
upon the division, the Constitution did not intend to prevent the Commission en banc from
exercising the power directly, on the theory that the greater power embraces the lesser. It could
if it wanted 'to but then it could also allow the division to act for it. That argument would
militate against the purpose of the provision, which precisely limited all questions affecting the
election contest, as distinguished from election cases in general, to the jurisdiction of the
Commission en banc as sole judge thereof. "Sole judge" excluded not only all other tribunals
but also and even the division of the Commission. A decision made on the contest by less than
the Commission en banc would not meet the exacting standard of care and deliberation ordained
by the Constitution.

Incidentally, in making the Commission the "sole judge" of pre-proclamation controversies in

Section 175, supra, the law was obviously referring to the body sitting en banc. In fact, the pre-

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proclamation controversies involved in Aratuc vs. Commission on Elections,[13] where the said
provision was applied, were heard and decided en banc.

Another matter deserving the highest consideration of this Court but accorded cavalier attention
by the respondent Commission on Elections is due process of law, that ancient guaranty of
justice and fair play which is the hallmark of the free society. Commissioner Opinion ignored
it. Asked to inhibit himself on the ground that he was formerly a law partner of the private
respondent, he obstinately insisted on participating in the case, denying he was biased.[14]

Given the general attitude of the Commission on Elections toward the party in power at the time,
and the particular relationship between Commissioner Opinion and MP Pacificador, one could
not be at least apprehensive, if not certain, that the decision of the body would be adverse to the
petitioner. As in fact it was. Commissioner Opinion's refusal to inhibit himself and his
objection to the transfer of the case to another division cannot be justified by any criterion of
propriety. His conduct on this matter belied his wounded protestations of innocence and proved
the motives of the Second Division when it rendered its decision.

This Court has repeatedly and consistently demanded "the cold neutrality of an impartial judge"
as the indispensable imperative of due process.[15] To bolster that requirement, we have held
that the judge must not only be impartial but must also appear to be impartial as an added
assurance to the parties that his decision will be just.[16] The litigants are entitled to no less than
that. They should be sure that when their rights are violated they can go to a judge who shall
give them justice. They must trust the judge, otherwise they will not go to him at all. They
must believe in his sense of fairness, otherwise they will not seek his judgment. Without such
confidence, there would be no point in invoking his action for the justice they expect.

Due process is intended to insure that confidence by requiring compliance with what Justice
Frankfurter calls the rudiments of fair play. Fair play calls for equal justice. There cannot be
equal justice where a suitor approaches a court already committed to the other party and with a
judgment already made and waiting only to be formalized after the litigants shall have
undergone the charade of a formal hearing. Judicial (and also extrajudicial) proceedings are not
orchestrated plays in which the parties are supposed to make the motions and reach the
denouement according to a prepared script. There is no writer to foreordain the ending. The
judge will reach his conclusions only after all the evidence is in and all the arguments are filed,
on the basis of the established facts and the pertinent law.

The relationship of the judge with one of the parties may color the facts and distort the law to
the prejudice of a just decision. Where this is probable or even only possible, due process
demands that the judge inhibit himself, if only out of a sense of delicadeza. For like Caesar's
wife, he must be above suspicion. Commissioner Opinion, being a lawyer, should have
recognized his duty and abided by this well-known rule of judicial conduct. For refusing to do
so, he divested the Second Division of the necessary vote for the questioned decision, assuming
it could act, and rendered the proceedings null and void.[17]

Since this case began in 1984, many significant developments have taken place, not the least
significant of which was the February revolution of "people power" that dislodged the past
regime and ended well nigh twenty years of travail for this captive nation. The petitioner is
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gone, felled by a hail of bullets sprayed with deadly purpose by assassins whose motive is yet to
be disclosed. The private respondent has disappeared with the "pomp of power" he had before
enjoyed. Even the Batasang Pambansa itself has been abolished, "an iniquitous vestige of the
previous regime" discontinued by the Freedom Constitution. It is so easy now, as has been
suggested not without reason, to send the records of this case to the archives and say the case is
finished and the book is closed.

But not yet.

Let us first say these meager words in tribute to a fallen hero who was struck down in the vigor
of his youth because he dared to speak against tyranny. Where many kept a meekly silence for
fear of retaliation, and still others feigned and fawned in hopes of safety and even reward, he
chose to fight. He was not afraid. Money did not tempt him. Threats did not daunt him. Power
did not awe him. His was a singular and all-exacting obsession: the return of freedom to his
country. And though he fought not in the barricades of war amid the sound and smoke of shot
and shell, he was a soldier nonetheless, fighting valiantly for the liberties of his people against
the enemies of his race, unfortunately of his race too, who would impose upon the land a
perpetual night of dark enslavement. He did not see the breaking of the dawn, sad to say, but in
a very real sense Evelio B. Javier made that dawn draw nearer because he was, like Saul and
Jonathan, "swifter than eagles and stronger than lions."

A year ago this Court received a letter which began: "I am the sister of the late Justice Calixto
Zaldivar. I am the mother of Rhium Z. Sanchez, the grandmother of Plaridel Sanchez IV and
Aldrich Sanchez, the aunt of Mamerta Zaldivar. I lost all four of them in the election eve
ambush in Antique last year." She pleaded, as so did hundreds of others of her provincemates in
separate signed petitions sent us, for the early resolution of that horrible crime, saying: "I am 82
years old now. I am sick. May I convey to you my prayer in church and my plea to you, 'Before
I die, I would like to see justice to my son and grandsons.' May I also add that the people of
Antique have not stopped praying that the true winner of the last elections will be decided upon
by the Supreme Court soon."

That was a year ago and since then a new government has taken over in the wake of the
February revolution. The despot has escaped, and with him, let us pray, all the oppressions and
repressions of the past have also been banished forever. A new spirit is now upon our land. A
new vision limns the horizon. Now we can look forward with new hope that under the
Constitution of the future every Filipino shall be truly sovereign in his own country, able to
express his will through the pristine ballot with only his conscience as his counsel.

This is not an impossible dream. Indeed, it is an approachable goal. It can and will be won if
we are able at last, after our long ordeal, to say never again to tyranny. If we can do this with
courage and conviction, then and only then, and not until then, can we truly say that the case is
finished and the book is closed.

WHEREFORE, let it be spread in the records of this case that were it not for the supervening
events that have legally rendered it moot and academic, this petition would have been granted
and the decision of the Commission on Elections dated July 23, 1984, set aside as violative of
the Constitution.

SO ORDERED.
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Feria, Yap, Narvasa, Alampay, and Paras, JJ., concur.

Teehankee, C.J., concur and reserve the filing of a separate concurrence.
Melencio-Herrera and Feliciano, JJ., see concurrence in the result.
Fernan and Gutierrez, Jr., JJ., in the result.

[1] Rollo, p. 26.

[2] Rollo, p. 26.

[3] Ibid., p. 9; p. 28.

[4] Id., p. 30.

[5] id., p. 30.

[6] id., p. 62.

[7] id., p. 62; pp. 107-111.

[8] id., pp. 11-16; pp. 196-208.

[9] Art. XII-C, Sec. 2(1), 1973 Constitution.

[10] Vera vs. Avelino, 77 Phil. 191.

[11] Art. XII-C, Sec. 3, 1973 Constitution.

[12] Election Code of 1971, Sec. 219.

[13] 88 SCRA 251.

[14] Rollo, pp. 109-111.

[15] Mateo vs. Villaluz, 50 SCRA 18; Gutierrez vs. Santos, 2 SCRA 249.

[16]
People vs. Opida, G.R. No. L-46272, July 13, 1986, citing Fernandez vs. Presbitero, 79
SCRA 61; Sardinia-Linco vs. Pineda, 104 SCRA 757.

[17] Comelec Res. No. 1669, Sec. 5.

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CONCURRING IN THE RESULT

FELICIANO, J.:

I agree with the result reached, that is, although this petition has become moot and academic, the
decision, dated 23 July 1984, of the Second Division of the Commission on Elections which had
proclaimed Arturo F. Pacificador as the duly elected Assemblyman of the Province of Antique
must be set aside or, more accurately, must be disregarded as bereft of any effect in law. I reach
this result on the same single, precisely drawn, ground relied upon by Melencio-Herrera, J.: that
all election contests involving members of the former Batasan Pambansa must be decided by the
Commission on Elections en banc under Sections 2 and 3 of Article XII-C of the 1973
Constitution. These Sections do not distinguish between "pre-proclamation" and "post-
proclamation" contests nor between "cases" and "contests".

CONCURRING IN THE RESULT

MELENCIO-HERRERA, J.:

I concur in the result. The questioned Decision of the Second Division of the COMELEC, dated
July 23, 1984, proclaiming private respondent, Arturo F. Pacificador, as the duly elected
Assemblyman of the province of Antique, should be set aside for the legal reason that all
election contests, without any distinction as to cases or contests, involving members of the
defunct Batasang Pambansa fall under the jurisdiction of the COMELEC en banc pursuant to
Sections 2 and 3 of Article XII-C of the 1973 Constitution.

Source: Supreme Court E-Library | Date created: May 05, 2022

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