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ELECTIONS LAW: CASES: DECLARATION The operation involving the use of force and coercion was so
OF POSTPONEMENT, FAILURE, ANNULMENT open and pervasive that after voting a preponderant number of
OF ELECTIONS SEC 5,6,7 BP 881; SEC 4 RA 7166 the voting centers were placed under the control of the
terrorists. And the Town Hall of San Fernando was virtually
converted into a 'concentration camp', wherein the teacher-
6. G.R. No. L-55513 June 19, 1982 members of the CEC's for several hours were at the mercy of
the armed goons who were bent to ensure the victory of the
VIRGILIO SANCHEZ, petitioner, incumbent mayor at the time i.e. respondent Biliwang, at all
vs. costs. No watchers were allowed inside; the relatives and
COMMISSION ON ELECTIONS, respondent. friends of the teachers were kept outside until the early
morning of January 31, 1980. 1
G.R. No. L-5564 June 19, 1982
The COMELEC then concluded:
ARMANDO BILIWANG petitioner,
vs. As pointed out above, it is the firm finding and conclusion of
COMMISSION ON ELECTIONS, respondent. the Commission that there was total failure of election in San
Fernando, Pampanga, not because of threats and coercion, or
The Resolution of the Commission on Elections, dated May terrorism inflicted on the voters before or during election day
15, 1980, in Pre-Proclamation Case No. 41, entitled Virgilio as in the Antonio Case, but for the threats and coercion or
Sanchez vs. Mayor Armando P. Biliwang and the Municipal terrorism and irregularities committed AFTER the elections or
Board of Canvassers of San Fernando, Pampanga, is specifically the counting of the votes and in the preparation of
challenged in these consolidated Petitions for Certiorari. the election returns upon the teacher-members of the Citizens
Election Committees (CEC's) without regard to the genuine
FACTS: ballots in the ballot boxes which were substituted with pre-
In the local elections held on January 30, 1980, Virgilio prepared ballots favoring respondent Biliwang. 2
Sanchez was the official candidate of the Nacionalista Party
(NP) for Municipal Mayor of San Fernando, Pampanga, while Sanchez sought reconsideration of that portion of the
Armando Biliwang was the Kilusang Bagong Lipunan's (KBL) COMELEC Resolution which certified the failure of election
official candidate for the same position. The latter was in San Fernando to the President/Prime Minister and the
proclaimed winner by the Municipal Board of Canvassers of Batasang Pambansa, and prayed instead that the COMELEC
said town. call a special election in San Fernando. Biliwang, for his part,
also moved for reconsideration on the ground that the
On February 1, 1980, Sanchez filed with the Commission on COMELEC has no authority to annul the entire municipal
elections a Petition to declare null and void the local elections election. He prayed that he be proclaimed on the basis of the
in San Fernando due to alleged large scale terrorism. On the undisputed returns. Reconsideration was denied by the
same day, the COMELEC denied the Petition for lack of merit. COMELEC in both instances.
Sanchez moved for reconsideration. On February 8, 1980, the
COMELEC recalled its Resolution and required Biliwang and On November 19, 1980, Sanchez filed a Petition for certiorari
the Municipal Board of Canvassers to answer. Hearings were with this Court, docketed as G.R. No. 55513, wherein he seeks
conducted thereafter. a modification of that portion of the COMELEC Resolution of
May 15, 1980 refusing to call a special election. He alleges that
On May 15, 1980, the COMELEC issued the challenged Section 5 of Batas Pambansa Bilang 52 specifically enjoins the
resolution, the dispositive portion of which reads: COMELEC to call a special election if the election results in a
failure to elect, and that by refusing to do so, the Commission
WHEREFORE, the Commission hereby orders the following: has abdicated its duty.

1. The annulment of the election held on January 30, On December 6, 1980, Biliwang instituted, also with this
1980 of the local government officials in San Fernando, Court, a Petition for Certiorari, Prohibition and Mandamus,
Pampanga, consequently, the annulment and setting aside of docketed as G.R. No. 55642, assailing the same COMELEC
the proclamation of respondent Armando P. Biliwang and Resolution and alleging that said body has no power to annul
other municipal officials thereat; and an entire municipal election because: (a) Article XII-C Section
2(l) of the Constitution grants to the COMELEC only the
2. To certify to the President/Prime Minister and the power to enforce and administer all laws relative to the conduct
Batasang Pambansa the failure of election in San Fernando, of elections; (b) Section 175 of the 1978 Election Code gave
Pampanga, so that remedial legislation may be enacted and that the power to said body to suspend and annul a proclamation
pending such enactment, the President/Prime Minister may only; and (c) Section 5 of Batas Pambansa Bilang 52 does not
appoint the municipal officials of San Fernando, Pampanga. grant it the power to annul municipal elections. He further
asserts that the COMELEC must make a proclamation on the
The aforesaid Resolution was prompted by the COMELEC's basis of unchallenged returns when these returns represent a
findings as follows: majority of the total election returns.

However, after the voting was over the terrorism and These two Petitions ere ordered consolidated and were heard
irregularities were committed as aforementioned. There is by the court en banc on July 28, 1981. Required to submit
strong and sufficient evidence to support the charge that in the Memoranda, Sanchez manifested that he was waiving the filing
preparation of election returns, the teacher members of the of the same as his Petition had exhaustively discussed and
Citizens Election Committees (CEC's) were threatened and ventilated the facts and issues involved and that he was
coerced into making spurious election returns without regard to adopting his Petition as his Memorandum. Biliwang and the
the genuine ballots in the ballot boxes. Policemen, armed Solicitor General submitted their respective Memoranda, the
goons and other persons all in obvious conspiracy former on August 7, 1981 and the latter on September 4, 1981.
"herded" the teacher-members of the (CEC's) to the Town Hall
of San Fernando, where the ballot boxes were forced open and ISSUES:
the contents thereof substituted with pre-prepared ballots
favoring respondent Biliwang. In fact, some of the genuine 1) Does the COMELEC have the power to annul an
ballots replaced with those fake ballots were produced at the entire municipal election on the ground of post-election
hearing by the teachers who managed to 'save' or 'salvage' them terrorism?YES
secretly, together with some stubs detached from the fake
ballots which upon comparison appeared wider than the 2) Does the COMELEC have the authority to call for a
genuine ones (Exhs. F & G; N, N-1 to N-31; 0, 0-1 to 0-16). special election?YES

RULING:
Power to Annul an Election

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with the Senate Electoral Tribunal, the House Electoral

Biliwang asserts that COMELEC lacks the power to annul Tribunal, or the Courts, as the case may be. 10
elections of municipal officials particularly so because, under
Section 190 of the 1978 Election Code, the power to try In other words, in line with the plenitude of its powers and its
election contests relative to elective municipal officials is function to protect the integrity of elections, the COMELEC
vested in Courts of First Instance. must be deemed possessed of authority to annul elections
where the will of the voters has been defeated and the purity of
Be that as it may, it should be recalled that what COMELEC elections sullied. It would be unreasonable to state that the
actually rejected were the sham and illegal returns in San COMELEC has a legal duty to perform and at the same time
Fernando, and that the kind of fraud and terrorism perpetrated deny it the wherewithal to fulfill that task.
thereat was sufficient cause for voiding the election as a whole.
Besides, COMELEC is empowered motu proprio to suspend ... the Conunission must be given considerable latitude in
and annul any proclamation as, in fact, it did annul Biliwang's adopting means and methods that will ensure the
proclamation: accomplishment of the great objective for which it was created
to promote free, orderly and honest elections. 11
SEC. 175. Suspension and annulment of proclamation.
The Commission shall be the sole judge of all pre- As then Justice Enrique M. Fernando, now the Chief Justice,
proclamation controversies and any of its decisions, orders pointed out in his concurring opinion in Antonio, Jr., vs.
or rulings shall be final and executory. It may, motu COMELEC, 32 SCRA 319 (1970):
proprio or upon written petition, and after due notice and
hearing order the suspension of the proclamation of a Where majority of the voters of a province failed to cast their
candidate-elect or annul any proclamation, if one has been votes due to widespread terrorism committed, the Commission
made, on any of the grounds mentioned in Sections 172, 173 on Elections should annul the canvass and the proclamation of
and 174 hereof. the winning candidate ...

Biliwang's claim that he should be proclaimed on the basis of The fact that widespread terrorism occurred after the elections,
undisputed returns is devoid of merit in the light of and not in the casting of votes, should make no difference.
COMELEC's categorical findings that it was impossible to
purge the illegal from the valid returns. Power to call a special election.

It may be true that there is no specific provision vesting the On this issue, the COMELEC opined that it had no power to
COMELEC with authority to annul an election. However, order the holding of a new or special election, stating .
there is no doubt either relative to COMELEC's extensive
powers. Under the Constitution, the COMELEC is tasked Although the broad powers and functions and jurisdiction
with the function to "enforce and administer all laws of the Commission may be gleaned from the foregoing,
relative to the conduct of elections." 3 The 1978 Election nevertheless, neither the Constitution nor the 1978 Election
Code (PD No. 1296) accords it exclusive charge of the Code and Batas Pambansa Bilang 52 has granted it the
enforcement and administration of all laws relative to the authority and power to call a special election under the
conduct of elections for the purpose of insuring free, peculiar facts and circumstances of these cases at bar. As
orderly and honest elections (Sec. 185). pointed out above, it is the firm finding and conclusion of the
Commission that there was total failure of election in San
The COMELEC found that the local election in San Fernando Fernando, Pampanga, not because of threats and coercion or
Pampanga, was vitiated by post-election widespread and terrorism inflicted on the voters before or during election day
pervasive terrorism and resulted in the submission of "gunpoint as in Antonio Case, but for the threats and coercion or
or coerced" returns. In other words, there were no election terrorism and irregularities committed after the elections or
returns worthy of faith and credit and from which could be specifically in the counting of the votes and in the preparation
gauged a fair and true expression of the popular will. Its action, of the election returns upon the teacher-members of the
therefore, of rejecting all election returns and annulling the Citizens Election Committees (CEC's) without regard to the
local elections thereat was but in keeping with its genuine ballots in the ballot boxes which were substituted with
constitutionally ordained power of administration and prepared ballots favoring respondent Biliwang .
enforcement of election laws and its main objective to insure
free, orderly and honest elections. As it has been rightly said In other words, this Commission finds that the election itself
"an election return prepared at the point of a gun is no return at took place on the date fixed by law, i.e. January 30, 1980, was
all; it is not one notch above a falsified and spurious return. 4 not suspended and was generally peaceful and orderly, but that
The Comelec has the power to reject returns when in its its validity was impaired by the post-election acts of terrorism,
opinion they were illegal and not authentic. 5 In fact, it has the violence, intimidation and threats which resulted in the
duty to disallow obviously false or fabricated returns, 6 as a submission of gun-point or coerced election returns.
falsified or spurious return amounts to no return at all. 7
Under the premises, the Commission has no power, even under
Admittedly, in Abes vs. Comelec, 21 SCRA 1252 (1967), this Section 7 of the 1978 Election Code or Section 5 of Batas
Court had ruled that the COMELEC is bereft of power to annul Pambansa Blg. 52 as quoted above, to order the holding of a
an election or to direct a new one. Then, we said: new or special election. The existing laws do not provide such
power. ... ." 12
Enforcement and administration of all election laws by
Comelec do not include the power to annul an election which Thus, the COMELEC deemed it imperative "to certify to the
may not have been free, orderly and honest, as such power is President/Prime Minister and the Batasang Pambansa the
merely preventive, and not curative, and if it fails to failure of election in San Fernando, Pampanga, so that
accomplish that purpose, it is not for such body to cure or remedial legislation may be enacted ...", explaining:
remedy the resulting evil, but for some other agencies of the
Government: the Senate Electoral Tribunal, the House Considering that there is now no Electoral Tribunal as Justice
Electoral Tribunal, or the courts, as the case may be, who have Teehankee, nor Congress, as Chief Justice Fernando, have
the power to decide election contests (Nacionalista Party vs. separately proposed in the Antonio Case, the Commission
Comelec, 85 Phil. 149, 155-156). deems it as not only appropriate and necessary, but as the sole
imperative and urgent remedy to certify to the President/Prime
That case was decided, however, under the aegis of the 1935 Minister and the Batasang Pambansa the failure of election in
Constitution and the former Revised Election Code. 8 Since San Fernando, Pampanga, so that remedial legislation may be
then, the powers of the COMELEC have been considerably enacted and that pending such enactment, the President/Prime
expanded it is now "the sole judge of all contests relating to the Minister may appoint the municipal officials of San Fernando.
elections, returns, and qualifications of all Members of the 13
Batasang Pambansa and elective provincial and city officials, 9
where before the power to decide election contests was lodged

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The pertinent portion of the concurring opinion of Chief Sec. 7. Failure of election. If on account of force
Justice Fernando in the Antonio case, referred to above, reads: majeure, violence, terrorism, or fraud the election in any
voting center has not been held on the date fixed or has
... and (the Commission on Elections shall) certify to Congress been suspended before the hour fixed by law for the closing
that the right to vote was frustrated and nullified so that the of the voting and such failure or suspension of election in
appropriate remedial measure in the form of a new election any voting center would affect the result of the election, the
could be provided for by appropriate legislation. Commission may on the basis of a verified petition and
after due notice and hearing, call for the holding or
The relevant portion of the concurring Opinion of Mr. Justice continuation of the election not held or suspende.
Claudio Teehankee in the same case states:
Section 8 of the same 1978 Election Code empowers the
... The question of whether there remained an election for COMELEC to call a special election to fill a vacancy or a
which a winner may be proclaimed or whether there was a newly created elective position.
failure of election since the remaining returns do not represent
a valid constituency under the prevailing doctrine of the House SEC. 8. Call of special election. Special elections shall be
Electoral Tribunal is one that pertains to the exclusive called by the Commission by proclamation on a date to be
jurisdiction of said Tribunal and should be certified thereto as fixed by it, which shall specify the offices to be voted for,
indicated in the body of this opinion for resolution. 14 that it is for the purpose of filling a vacancy or a newly
created elective position, as the case may be."
In Ututalum vs. Comelec, 15 SCRA 465 (1965), this Court also
had occasion to hold: Clearly, under Section 5 of Batas Pambansa Blg. 52,
abovequoted, when the election "results in a failure to elect, the
The functions of the Commission on Elections under the COMELEC may call for the holding or continuation of the
Constitution are essentially executive and administrative in election as soon as practicable." We construe this to include the
nature. Upon the other, the authority to order the holding of calling of a special election in the event of a failure to elect in
elections on any date other than that fixed in the Revised order to make the COMELEC truly effective in the discharge
Election Code is merely incidental to or an extension or of its functions. In fact, Section 8 of the 1978 Election Code,
modality of the power to fix the date of elections. This is, in supra, specifically allows the COMELEC to call a special
turn, neither executive nor administrative, but legislative in election for the purpose of filling a vacancy or a newly created
character, not only by nature, but, also, insofar as national position, as the case may be. There should be no reason,
elections are concerned, by specific provisions of the therefore, for not allowing it to call a special election when
Constitution, for, pursuant thereto, the elections for Senators there is a failure to elect. We do not share the view of public
and members of the House of Representatives and those for respondent and the Solicitor General that the power of the
President and Vice- President, shall be held on the dates "fixed COMELEC to call for special elections is circumscribed by the
by law" (Article VI, Sec. 8 [1] and Article VII, Sec. 4 very same Section 5 of Batas Pambansa Blg. 52 itself, and that
Constitution), meaning an Act of Congress. Hence, no "the San Fernando situation is not within its ambit 17 ". More
elections may be held on any other date, except when so specifically, their position is:
provided by another Act of Congress or upon orders of a body
or officer to whom Congress may have delegated, either its Weighing incontrovertibly against the petitioner's claim is the
aforementioned power, or the authority to, ascertain or fill in language of the law itself. What does Section 5, Batas
the details in the execution of said power. There is, however, Pambansa Blg. 52 say? lt states that the Commission is
no such statutory grant of authority to the Commission on empowered to call for the "holding or continuation of the
Elections. election as soon as practicable" where: (1) 'the holding of a
free, orderly and honest election should become impossible;
Again, the foregoing Opinions were rendered under the regime (2) 'the election for a local office fails to take place on the date
of the 1935 Constitution and the former Revised Election Code fixed by law; (3) 'the erection for a local office ... on the date
(Republic Act No. 180, as amended), whereby there was no fixed by law is suspended; and (4) 'such election results in a
constitutional nor statutory precept that empowered the failure to elect ... .
COMELEC to direct a new election after one had already been
held. 15 Under section 8 of that former statute, authority was An examination of the foregoing enumeration clearly reveals
given to the President to postpone the election upon the that the same essentially and solely refer to the casting of
recommendation of the COMELEC. And Section 21 (c) of the ballots for the public office concerned. Surely, this is a clear
same law authorized the President to issue a proclamation case of ejusdem generis. The last of the enumerated situations
calling a special election whenever the election for a local must hew to the same specific meaning as the first three. And
office failed to take place on the date fixed by law. In other clearly, the first three enumerated instances refer to the actual
words, the prerogative to postpone an election or call a special casting of ballots. The petitioner's general definition cannot
election, was formerly lodged with the President. Besides, the apply here. The failure to elect must, therefore, result
Antonio case involved a House contest at a time when the specifically from a failure relative to the casting of ballots.
House Electoral Tribunal was the sole Judge to determine the This envisions a situation where an election is not impossible
validity of the returns and elections. 16 to hold; neither does it fail to take place; nor is it suspended;
but nevertheless, the voters are unable to cast their votes, due
As the laws now stand, however, COMELEC has been to the operation on such voters of either violence, terrorism,
explicitly vested with the authority to "call for the holding loss or destruction of election paraphernalia or records, force
or continuation of the election." Thus, Section 5 of Batas majeure and other analogous cases. Here, there was no failure
Pambansa Blg. 52 explicitly provides: relative to the free and voluntary casting of votes on the part of
the voters.
Sec. 5. Failure of Election. whenever for any serious
cause such as violence, terrorism, loss or destruction of The petitioner's attempt then to interpret the terms 'election' in
election paraphernalia or records, force majeure and other the above provision of law as including, not only the casting of
analogous cases of such nature that the holding of a free, ballots, but the counting thereof, the preparation of election
orderly and honest election should become impossible, the returns, canvass and proclamation is, indeed, misplaced in the
election for a local office fails to take place on the date fixed light of the language of the above controlling provision of law.
by law, or is suspended, or such election results in a failure
to elect, the Commission on Elections shall, on the basis of a It is not to be doubted that the voters in San Fernando cast their
verified petition and after due notice and hearing, call for votes freely and voluntarily before the various CEC's of the
the holding or continuation of the election as soon as municipality. In the light of the above provision of law,
practicable. (Emphasis ours) election had actually taken place. As the evidence clearly
shows, the 'failure to elect' here was the result of the operation
Section 7 of the Election Code of 1978 (PD No. 1296) of a massive, systematic and palpably evil operation to: (1)
similarly provides: substitute fake for genuine ballots; (2) manufacture election
returns at gunpoint; and (3) secure a proclamation on the basis

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of these false documents. Because of these illegal manuevers to 2) In G. R. No. 55642, the petition is hereby denied for
frustrate the will of the electorate, there was, more accurately, lack of merit, and the authority of the Commission on
a failure to gauge the true and genuine will of the electorate, Elections to annul an election hereby upheld.
rather than a failure of election. Ballots were duly cast, but
because of the above massive and systematic operations to No costs.
frustrate the electorate's will, their true and authentic vote
could not be ascertained. 18 SO ORDERED.

In a nutshell, it is contended that "the illegal maneuvers to 7. [G. R. No. 150312. July 18, 2002
frustrate the will of the electorate was, more accurately, a BAGO P. PASANDALAN, petitioner, vs. COMMISSION
failure to gauge the true and genuine will of the electorate, ON ELECTIONS and BAI SALAMONA L. ASUM,
rather than a failure of election;" that the COMELEC could no respondents.
longer call for the holding of a special election in this case DECISION
because fraud and terrorism were committed after the voters CARPIO, J.:
had already cast their ballots, and therefore, elections had
actually taken place; and that for there to be a failure to elect, it A petition for declaration of failure of election must
must result specifically from a failure relative to the casting of specifically allege the essential grounds that would justify the
ballots. exercise of this extraordinary remedy. Otherwise, the Comelec
can dismiss outright the petition for lack of merit. No grave
It should be recalled that the COMELEC found the post- abuse of discretion can be attributed to the Comelec in such a
election acts of terrorism in San Fernando so massive and case because the Comelec must exercise with utmost
pervasive in nature that it rejected all the returns. It made the circumspection the power to declare a failure of election to
"firm finding and conclusion ... that there was total failure of prevent disenfranchising voters and frustrating the electorates
election in San Fernando, Pampanga. 19 When all the returns will.
are void, it cannot be gainsaid that there was a failure to elect.
But to state that this is not the failure of election contemplated FACTS:
by Batas Pambansa Blg. 52 because elections did take place is,
to our minds, too tenuous a distinction. In practical effect, no Before us is a petition for review on certiorari of the
election has at all been held; there has been in truth and in fact, Resolution[1] of the Commission on Elections en banc dated
a failure to elect. October 12, 2001 dismissing petitioner Bago P. Pasandalans
(Pasandalan for brevity) petition to declare a failure of election.
It would be to circumscribe the power of the COMELEC to
ensure free, orderly and honest elections if we were to hold Pasandalan and private respondent Bai Salamona L. Asum
that the COMELEC authority to call for the holding of the (Asum for brevity) were candidates for mayor in the
election is applicable only when the causes therefor Municipality of Lumbayanague, Lanao del Sur during the May
occurred before the elections; in other words, that the 14, 2001 elections.
grounds for calling special elections do not include post-
election terrorism. That interpretation would not only On May 23, 2001, Pasandalan filed a petition[2] before public
hamper the effectiveness of the COMELEC in the respondent Commission on Elections (Comelec for brevity)
discharge of its functions but it would also, in case of seeking to nullify the election results in Barangay Cabasaran
failure. To elect due to post-election terrorism, delay the (Precinct Nos. 9A, 10A, 11A and 12A), Barangay Deromoyod
opportunity to the voters to cast their votes at the earliest (Precinct Nos. 24A, 25A and 26A), Lamin (Precinct Nos. 29A
possible time. The electorate should not be disenfranchised and 30A), Barangay Wago (Precinct Nos. 46A, 47A and 48A),
for long and the COMELEC should not be prevented from Barangay Meniros (Precinct Nos. 32A, 33A and 34A),
taking the necessary steps to complete the elections. After Barangay Bualan (Precinct Nos. 6A, 7A and 8A) and Barangay
all, the casting of ballots is not the only act constitutive of Pantaon (Precinct Nos. 38A and 39A), all of Lumbayanague,
elections. An election is not complete until proclamation Lanao del Sur.
has been made.
Petitioner alleged that on May 14, 2001, while voting was
An election is not an election and popular will is not deemed to going on, some Cafgus stationed near Sultan Gunting
have been expressed until the last act necessary to complete the Elementary School indiscriminately fired their firearms
election under the law has been performed. Under the laws of causing the voters to panic and leave the polling center without
the Philippines the act which completes the election is the casting their votes. Taking advantage of the confusion,
proclamation of the provincial board of canvassers. 20 supporters of Asum allegedly took the official ballots, filled
them up with the name of Asum and placed them inside the
In fine, we uphold the power and prerogative of the ballot boxes. The incident allegedly marred the election results
COMELEC to annul an election where the will of the in Precinct Nos. 9A-12A, 24A-26A and 29A-30A.
voters has been defeated, as well as to call for a special
election where widespread terrorism, whether before or In Precinct Nos. 46A, 47 and 48A, the members of the Board
after election, has been proven resulting in a failure to of Election Inspectors (BEI for brevity) allegedly failed to sign
elect, without need of recourse to the President and the their initials at the back of several official ballots and to
Batasang Pambansa for the enactment of remedial remove the detachable coupons. The BEI members allegedly
legislation. affixed their initials only during the counting of votes.

Biliwang raises for the first time on review his right to a "hold- In Precinct Nos. 6A-8A, 32A-34A and 38A-39A, Pasandalan
over". Not only has this been belatedly raised but the fact also claims that Asums supporters, taking advantage of the fistfight
remains that his elective term expired on December 31, 1975 between Asums nephew and the supporters of candidate
and that he already held-over by virtue of PD No. 1576. He Norania Salo, grabbed the official ballots and filled them up
ceased to hold-over, however, when elections were held on with the name of Asum.
January 30, 1980, besides the fact that the President has
already appointed an officer-in-charge in San Fernando, Pasandalan contends that a technical examination of several
Pampanga. official ballots from the contested precincts would show that
only a few persons wrote the entries.
WHEREFORE, 1) in G. R. No. 55513, the challenged
Resolution of May 15, 1980 is hereby modified, and the On June 26, 2001, Asum filed an Answer denying Pasandalans
Commission on Elections hereby held empowered to call a allegation that the volley of shots fired on May 14, 2001
special election where there has been a failure to elect. That disrupted the voting. Private respondent countered that the
portion which certifies the failure of election in San Fernando, gunshots were heard around 2:35 p.m. and not at the start of
Pampanga, to the President and the Batasang Pambansa for the the voting. On June 30, 2001, Asum was sworn into office and
enactment of remedial measures, is hereby set aside.

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assumed the position of municipal mayor of the Section 6 of the Code prescribes the conditions for the
Lumbayanague, Lanao del Sur. exercise of this power, thus:

On October 12, 2001, the Comelec issued a Resolution SEC. 6. Failure of Election. - If, on account of force
dismissing the petition for lack of merit.[3] majeure, violence, terrorism, fraud or other analogous
causes the election in any polling place has not been held on
Hence, this petition. the date fixed, or had been suspended before the hour fixed
by law for closing of the voting, or after the voting and
The Comelecs Ruling during the preparation and the transmission of the election
returns or in the custody or canvass thereof, such election
The Comelec ruled that the power to declare a failure of results in a failure to elect, and in any of such cases the
election, being an extraordinary remedy, could be exercised failure or suspension of election would affect the result of
only in three instances: (1) the election is not held; (2) the the election, the Commission shall, on the basis of a verified
election is suspended; or (3) the election results in a failure to petition by any interested party and after due notice and
elect. The third instance is understood in its literal sense, that hearing, call for the holding or continuation of the election
is, nobody was elected. not held, suspended or which resulted in a failure to elect
but not later than thirty days after the cessation of the
The Comelec dismissed the petition because none of the cause of such postponement or suspension of the election or
grounds relied upon by Pasandalan falls under any of the three failure to elect.
instances justifying a declaration of failure of election. First,
the elections in the questioned precincts were held as Based on the foregoing provision, three instances justify a
scheduled. Second, the gunshots heard during the casting of declaration of failure of election. These are:
votes did not suspend the election as the voting continued
normally. Third, Asum was elected by a plurality of votes. (a) the election in any polling place has not been held on the
date fixed on account of force majeure, violence, terrorism,
The authenticity and integrity of the election returns were left fraud or other analogous causes;
undisturbed throughout the preparation, transmission, custody
and canvass of the returns. Pasandalan alleges fraud and (b) the election in any polling place has been suspended before
terrorism, in that there was massive substitution of voters, the hour fixed by law for the closing of the voting on account
firing of guns to frighten the voters, and failure of the BEI of force majeure, violence, terrorism, fraud or other analogous
members to sign at the back of some official ballots and to causes; or
remove the detachable coupons. The Comelec ruled that these
allegations are better ventilated in an election contest. (c) after the voting and during the preparation and transmission
of the election returns or in the custody or canvass thereof,
The Comelec did not give credence to Pasandalans evidence in such election results in a failure to elect on account of force
support of his allegations of terrorism and fraud since the majeure, violence, terrorism, fraud or other analogous
evidence consisted only of affidavits executed by Pasandalans causes.[6]
own poll watchers. The Comelec considered these affidavits
self-serving and insufficient to annul the results of the election. What is common in these three instances is the resulting failure
Thus, the Comelec dismissed the petition for lack of merit. to elect.[7] In the first instance, no election is held while in the
second, the election is suspended.[8] In the third instance,
ISSUES: circumstances attending the preparation, transmission, custody
or canvas of the election returns cause a failure to elect. The
Pasandalan now assails the Comelecs dismissal of his petition, term failure to elect means nobody emerged as a winner. [9]
raising the following issues:
Pasandalan asserts that the conditions for the declaration of
1. WHETHER THE COMMISSION ON ELECTIONS failure of election are present in this case. The volley of shots
ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR from high-powered firearms allegedly forced the voters to
WITH GRAVE ABUSE OF DISCRETION IN DISMISSING scamper away from the polling place, paving the way for
THE PETITION IN SPA NO. 01-305 FOR ALLEGED LACK Asums supporters to write the name of Asum on the ballots.
OF MERIT;NO The gunfire also frightened Pasandalans poll watchers. The
heavy firing allegedly suspended or prevented the holding of
2. WHETHER THE COMMISSION ON ELECTIONS elections in the contested precincts, resulting in failure to elect.
COMMITTED GRAVE ABUSE OF DISCRETION The victory of Asum is thus put in serious doubt.
AMOUNTING TO LACK OF JURISDICTION IN NOT
ANNULING THE ELECTION OR DECLARING A 2ND ISSUE:We do not agree. Pasandalans allegations do not
FAILURE OF ELECTION IN THE SIXTEEN (16) fall under any of the instances that would justify the
QUESTIONED PRECINCTS;NO declaration of failure of election. The election was held in
the 16 protested precincts as scheduled. At no point was the
3. WHETHER THE COMMISSION ON ELECTIONS election in any of the precincts suspended. Nor was there a
ACTED WITHOUT OR IN EXCESS OF ITS failure to elect because of force majeure, violence,
JURISDICTION OR WITH GRAVE ABUSE OF terrorism, fraud or other analogous causes during the
DISCRETION IN NOT DECLARING AS ILLEGAL, NULL preparation, transmission, custody and canvass of the
AND VOID AB INITIO THE PROCLAMATION OF THE election returns. The alleged terrorism was not of such
PRIVATE RESPONDENT AS THE DULY ELECTED scale and prevalence to prevent the holding of the election
MAYOR OF LUMBAYANAGUE, LANAO DEL SUR IN or to cause its suspension. In fact, the casting and counting
THE LAST MAY 14, 2001 REGULAR ELECTIONS AND of votes, the preparation, transmission and canvassing of
MAY 30, 2001 SPECIAL ELECTIONS.[4]NO election returns and the proclamation of the winning
candidate took place in due course.
RULING:
FIRST ISSUE: We rule that the petition is without merit. The Courts exercise the power to declare a failure of election with
Comelec correctly dismissed the petition for declaration of deliberate caution so as not to disenfranchise the
failure of election because the irregularities alleged in the electorate.[10] The fact alone that actual voting took place
petition should have been raised in an election protest, not in a already militates against Pasandalans cause. Also, Pasandalans
petition to declare a failure of election. allegations of terrorism and fraud are not sufficient to warrant a
nullification of the election in the absence of any of the three
Under Republic Act No. 7166, otherwise known as The instances justifying a declaration of failure of election.
Synchronized Elections Law of 1991,[5] the Comelec en Terrorism may not be invoked to declare a failure of election
banc is empowered to declare a failure of election under and to disenfranchise the greater number of the electorate
Section 6 of the Omnibus Election Code (B.P. Blg. 881). through the misdeeds of only a few,[11] absent any of the three
instances specified by law.

5
 Page 6 of 48

were tailored to suit the needs of the petitioner. For example,

To warrant a declaration of failure of election on the ground of the joint-affidavit of Badjomura Calauto and Macaruog
fraud, the fraud must prevent or suspend the holding of an Ampuan states that they were in Barangay Cabasaran during
election, or mar fatally the preparation, transmission, custody the May 14 election when they saw the men of respondent fill-
and canvass of the election returns.[12] The conditions for the up the ballots in Precinct Nos. 29A-30A of Barangay Lamin.
declaration of failure of election are stringent. Otherwise, The venue of voting for Barangay Cabasaran was Sultan
elections will never end for losers will always cry fraud and Gunting Central Elementary School while that of Barangay
terrorism.[13] Lamin was Lamin Primary School. How they were able to
witness said incident when they were miles away from where it
The allegations of massive substitution of voters, multiple happened is mystifying. Besides, this is not the proper forum to
voting, and other electoral anomalies should be resolved in a challenge illegal voters. Even at the precinct level, petitioners
proper election protest[14] in the absence of any of the three watchers are empowered to question any irregularity which
instances justifying a declaration of failure of election. In an they think may have been committed by any person or to
election protest, the election is not set aside, and there is only a challenge the capacity of any person offering to vote. Failing to
revision or recount of the ballots cast to determine the real avail himself of this remedy, petitioner cannot now pass the
winner.[15] burden to innocent voters by calling for the annulment of the
results of a validly held election.[20]
3RD ISSUE:The nullification of elections or declaration of
failure of elections is an extraordinary remedy.[16] The Pasandalan bewails the Comelecs dismissal of his petition
party who seeks the nullification of an election has the without first conducting a technical examination of the
burden of proving entitlement to this remedy. It is not questioned precincts. Pasandalan claims that had the Comelec
enough that a verified petition is filed. The allegations in made a technical examination of the questioned precincts, the
the petition must make out a prima facie case for the Comelec would have discovered massive substitution of voters,
declaration of failure of election, and convincing evidence terrorism, violence, threats, coercion, intimidation and other
must substantiate the allegations.[17] electoral frauds, resulting in a failure of election. Pasandalan
insists that a technical examination in this case would have
In the instant case, it is apparent that the allegations do not been proper as in Typoco, Jr. v. Commission on Elections,[21]
constitute sufficient grounds for the nullification of the which is also a case of failure of election.
election. Pasandalan even failed to substantiate his allegations
of terrorism and irregularities. His evidence consisted only of The Comelec is not mandated to conduct a technical
affidavits. Mere affidavits are insufficient,[18] more so in this examination before it dismisses a petition for nullification of
case since the affidavits were all executed by Pasandalans own election when the petition is, on its face, without merit. In
poll watchers. Factual findings of the Comelec are binding on Typoco, petitioner Typoco buttressed his petition with
this Court.[19] Accordingly, the following findings of the independent evidence that compelled the Comelec to conduct a
Comelec in the instant case must be respected: technical examination of the questioned returns. Typoco filed a
Motion to Admit Evidence to prove that a substantial number
xxx There was an allegation in the amended petition that while of election returns were manufactured. Typoco claimed that the
voting was taking place in Sultan Gunting Elementary School, returns were prepared by only one person based on the report
gunshots were heard causing the voters to scamper for safety of Francisco S. Cruz, a licensed examiner of questioned
and leave the polling center without having cast their votes. documents, who examined copies of the election returns of
However, other than his bare allegation and the pre-typed Lakas-NUCD. In the present case, Pasandalan failed to attach
affidavits of his watchers, petitioner did not present substantial independent and objective evidence other than the self-serving
and convincing evidence to support his claim. On the other affidavits of his own poll watchers.
hand, 1 Lt. Frederick Galang Pa of the 29th Infantry Battalion
assigned in Lumbayanague categorically declared in his In Mitmug v. Commission on Elections,[22] we ruled that the
affidavit that despite the gunshots which were heard at around Comelec could dismiss outright a petition for nullification of
2:35 PM when the polls were about to close, the voting election if it is plainly groundless and the allegations therein
continued normally. This statement was bolstered by the could be better ventilated in an election protest. In Banaga, Jr.
narrative report of Urangutan Mamailao, Election Officer of v. Commission on Elections,[23] we reiterated this doctrine,
Lumbayanague, on the conduct of the election in said thus -
municipality. The report was spontaneously prepared when the
incident happened. Taken in the light of the presumption of Finally, petitioner claims that public respondent gravely abused
regularity in the performance of official functions, these two its discretion when it dismissed his petition motu propio.
affidavits carry great weight. Third, the authenticity and However, the fact that a verified petition has been filed does
integrity of the election returns are left undisturbed throughout not mean that a hearing on the case should first be held before
the preparation, transmission, custody and canvass thereof. Comelec can act on it. The petition to declare a failure of
There was no allegation, much less proof that the sanctity of election and/or to annul election results must show on its face
the election returns was defiled. that the conditions necessary to declare a failure to elect are
present. In their absence, the petition must be denied outright.
xxx Public respondent had no recourse but to dismiss the petition.
Nor may petitioner now complain of denial of due process, on
A thorough examination of the affidavits reveals that they this score, for his failure to properly file an election protest.
suffer from both extrinsic and intrinsic invalidity. The form The Comelec can only rule on what was filed before it. It
and the contents of the affidavits were pre-typed, and all the committed no grave abuse of discretion in dismissing his
affiants had to do was to fill-up the blank spaces for their petition to declare failure of elections and/or for annulment of
names and precinct assignments. This clearly shows that some elections for being groundless, hence without merit.
other person prepared the affidavits and it is doubtful whether
the affiants understood the contents thereof before they signed Clearly, the fact that a verified petition is filed with the
them. Comelec does not necessarily mean that a technical
examination or a hearing on the case should be conducted first
Also worth noting is the fact that the contents of the affidavits before the Comelec can act on the petition. There is no grave
are identical. It is highly questionable why different persons abuse of discretion if the Comelec dismisses the petition even
have exactly the same observation of different incidents. Even without a technical examination or hearing if the petition fails
persons confronted with the same occurrence would have to show on its face the existence of any of the three instances
different observations of the same incident because human required by law to declare a failure of election. The Comelec in
perception is essentially affected by several factors like the this case correctly dismissed the petition.
senses, mental condition, personal disposition, environment,
etc. Pasandalan believes that notwithstanding the fact that actual
voting took place in the questioned precincts, the election in
Moreover, the affidavits contain inconsistent statements and this case, just like in Basher v. Commission on Elections,[24]
incredible allegations which bolster the conclusion that they was illegal, irregular, and void.[25] Citing Basher, Pasandalan

6
 Page 7 of 48

argues that the peculiar set of facts in this case do not merely Questioned Document, who examined copies of election
show a failure of election but the absence of a valid electoral returns of the LAKAS-NUCD.
exercise.[26]
On June 4, 1998, COMELEC (Second Division) issued an
The fact that an election is actually held prevents as a rule a Order dismissing the Joint Appeal. Thereafter, TYPOCO filed
declaration of failure of election. It is only when the election is a Motion for Reconsideration reiterating his motion to admit
attended by patent and massive irregularities and illegalities evidence to prove the manufacturing and/or spurious character
that this Court will annul the election. Basher is an example of of the questioned returns which were allegedly prepared in
such a case. group by only one person and which will materially affect the
results of the election for the position of Governor.
In Basher, after a series of failed elections in Barangay
Maidan, Municipality of Tugaya, Lanao del Sur during the In the meantime, on June 10, 1998, TYPOCO and OCO filed
1997 barangay elections, the election was reset to August 30, with the COMELEC En Banc a separate petition for
1997. Due to the prevailing tension in the locality, the voting Annulment of Election or Election Results and/or Declaration
started only at around 9 p.m. and lasted until the early morning of Failure of Elections in several precincts, docketed as SPA
of the following day. Basher filed a petition for the No. 98-413, subject of the instant petition. The petition alleged
nullification of election. The Comelec ruled against a failure of that massive fraud and irregularities attended the preparation of
election because actual voting had taken place. However, we the election returns considering that upon technical
overturned the Comelec ruling because the election was examination, 305 election returns were found to have been
unauthorized and invalid. The electorate was not given prepared in group by one person.
sufficient notice that the election would push through after 9
p.m. of the same day. Moreover, the voting did not comply On July 15, 1998, the COMELEC En Banc issued an Order
with the procedure laid down by law and by Comelec rules as directing the Voters Identification Division of the
to the time and place of voting. Thus, we held that the election Commissions Election Records and Statistics Department
was illegal, irregular and void. Consequently, we annulled the (ERSD) to examine the COMELEC copies of the 305 election
proclamation of the winning candidate and ordered a special returns questioned by TYPOCO.
election.
On August 12, 1998, the COMELECs ERSD Voters
Basher does not apply to this case. Unlike in Basher, the Identification Division submitted its Questioned Document
election in this case proceeded as scheduled, in accordance Report to the COMELEC En Banc on the results of its
with law and Comelec rules. None of the extreme technical examination of the questioned election returns. The
circumstances that marred the election in Basher is present in report disclosed, among others, that the handwritten entries on
this case. We have ruled that there is failure of election only if 278 COMELEC copies of election returns particularly under
the will of the electorate is muted and cannot be the columns Congressman/Governor/Vice-Governor Nickname
ascertained.[27] If the will of the people is determinable, the or Stage Name, were written by one and the same person in
same must be respected as much as possible.[28] In this case, groups.[1]
the will of the electorate is readily discernible. Pasandalan
should have filed an election protest to substantiate his On August 31, 1998, the COMELEC En Banc issued the
allegations of electoral anomalies, not a petition to declare a resolution denying petitioners motion for reconsideration in
failure of election. SPC No. 98-133 on the ground that an election protest is the
proper remedy.
WHEREFORE, the instant petition is DISMISSED. The
assailed Resolution of public respondent Comelec is TYPOCO then filed a petition for certiorari and prohibition
AFFIRMED. Costs against petitioner. under Rule 65 with prayer for the issuance of a temporary
restraining order and/or writ of preliminary injunction assailing
SO ORDERED. 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
8. [G.R. No. 136191. November 29, 1999] Banc.[2] In a resolution dated September 22, 1998, this Court
dismissed the petition finding no grave abuse of discretion on
JESUS O. TYPOCO, JR., petitioner, vs. COMMISSION the part of respondent COMELEC in issuing the aforesaid
ON ELECTIONS (COMELEC) EN BANC, and JESUS assailed orders. TYPOCOs motion for reconsideration was
EMMANUEL PIMENTEL, respondents. likewise denied by this Court with finality on September 29,
DECISION 1998.

Before us is a petition for certiorari and prohibition to annul On October 12, 1998, the COMELEC En Banc promulgated a
and set aside the resolution of the Commission on Elections resolution in SPA 98-413, dismissing TYPOCOs petition for
(COMELEC) En Banc dated October 12, 1998 which the Declaration of Failure of Elections and/or Annulment of
dismissed herein petitioner Jesus Typoco, Jr.s (TYPOCO) Elections in Camarines Norte for lack of merit, thus:
petition for Annulment of Election or Election Results and/or
Declaration of Failure of Elections docketed as SPA No. 98- The grounds cited by petitioners do not fall under any of the
413. instances enumerated in Sec. 6 of the Omnibus Election Code.

FACTS: In Mitmug vs. Commission on Elections, 230 SCRA 54, the

Supreme Court ruled that before the Comelec can act on a
TYPOCO and private respondent Jesus Pimentel (PIMENTEL) verified petition seeking to declare a failure of elections, at
were both candidates for the position of Governor in least two (2) conditions must concur: (a) no voting has taken
Camarines Norte during the May 11, 1998 elections. On May place in the precincts on the date fixed by law, or even if there
22, 1998, TYPOCO together with Winifredo Oco (OCO), a was voting, the election nevertheless resulted in failure to elect;
candidate for the position of Congressman of the Lone District and (b) the votes that were not cast would affect the result of
of Camarines Norte filed a Joint Appeal before the COMELEC the election. From the allegations of the petition in the instant
docketed as SPC-No. 98-133. TYPOCO and OCO questioned cases, it is clear that an election took place and that it did not
therein the ruling of the Provincial Board of Canvassers of result in a failure to elect. In fact, by separate resolution, the
Camarines Norte which included in the canvass of votes the Commission has authorized the provincial board of canvassers
Certificate of Canvass of the Municipality of Labo, Camarines to proclaim the winning candidates and this as been
Norte. TYPOCO also filed a Motion to Admit Evidence to implemented.
Prove That a Substantial Number of Election Returns Were
Manufactured as They Were Prepared by One Person based on WHEREFORE, the Commission hereby DISMISSES the
the report of one Francisco S. Cruz, a Licensed Examiner of petition in each of the above cases, for lack of merit.[3]

7
 Page 8 of 48

Hence, the instant petition on the grounds that the COMELEC

En Banc gravely abused its discretion as follows: 1. in holding Sec. 6. Failure of election. - If, on account of force majeure,
that the grounds cited by TYPOCO do not fall under any of the violence, terrorism, fraud or other analogous causes the
instances enumerated in Section 6 of the Omnibus Election election in any polling place has not been held on the date
Code; 2. in refusing to annul the election or the election results fixed or had been suspended before the hour fixed by the
or to declare a failure of election despite the fact that massive law for the closing of the voting, or after the voting and
fraud and irregularities attended the preparation of the election during the preparation and the transmission of the election
returns; 3. in failing to proclaim TYPOCO as the winning returns or in the custody or canvass thereof, such election
candidate for Governor; 4. in failing to annul the proclamation results in a failure to elect, and in any of such cases the
of PIMENTEL which is null and void from the beginning; 5. in failure or suspension of election would affect the result of
ruling that an election protest is the proper remedy and not an the election, the Commission shall, on the basis of verified
annulment of the election or election results and/or declaration petition by any interested party and after due notice and
of failure of elections.[4] hearing, call for the holding or continuation of the election
not held, suspended or which resulted in a failure to elect
ISSUE: on a date reasonably close to the date of the election not
Simply stated, did the COMELEC commit grave abuse of held, suspended or which resulted in a failure to elect but
discretion in not declaring a failure of elections for the position not later than thirty days after the cessation of the cause of
of Governor in Camarines Norte in the May 11, 1998 such postponement or suspension of the election or failure
elections?NO to elect.

In a Manifestation and Motion (In Lieu of Comment) filed by The same provision is reiterated under Section 2, Rule 26 of
the Office of the Solicitor General (OSG), the latter joins the Revised COMELEC Rules.
TYPOCOs prayer for affirmative relief. The OSG explains
thus: Based on the foregoing laws, the instant petition must fail
because the allegations therein do not justify a declaration of
13. The petition a quo (SPA No. 98-413) specifically prayed failure of election.
for annulment of election returns and/or election results in the
protested precincts where massive fraud and irregularities were The COMELEC correctly pointed out that in the case of
allegedly committed in the preparation of the election returns Mitmug vs. Commission on Elections[6], this Court held that
which, upon technical examination of their authentic copies, before COMELEC can act on a verified petition seeking to
were found to have been prepared in groups by one person declare a failure of election, two (2) conditions must concur:
(Petition, Annex A, p.2). first, no voting has taken place in the precincts concerned on
the date fixed by law or, even if there was voting, the election
14. On this score, it should be stressed that election returns are nevertheless resulted in a failure to elect; and second, the votes
prepared separately and independently by the Board of cast would affect the result of the election. In Loong vs.
Election Inspectors assigned in each and every precinct. Hence, Commission on Elections[7], this Court added that the cause of
uniformity in the handwritten entries in the election returns such failure of election should have been any of the following:
emanating from different electoral precincts, as in this case force majeure, violence, terrorism, fraud of other analogous
speaks only of one thing --- THE ELECTION RETURNS cases. Further, in Borja, Jr. vs. Commission on Elections[8],
WERE FABRICATED OR TAMPERED WITH. we stated that:

Here, the COMELEC itself, through its own Voters The COMELEC can call for the holding or continuation of
Identification Department, certified that out of the 305 election election by reason of failure of election only when the election
returns in the 12 municipalities of Camarines Norte, 278 or is not held, is suspended or results in a failure to elect. The
91.14% thereof were found to have been written by one person latter phrase, in turn, must be understood in its literal sense,
which fact lucidly speaks of massive fraud in the preparation of which is nobody was elected.
election returns.
Clearly then, there are only three (3) instances where a
15. Precisely, massive fraud committed after the voting and failure of election may be declared, namely: (a) the election
during the preparation of the election returns resulting in a in any polling place has not been held on the date fixed on
failure to elect, is a ground for annulment of election under account of force majeure, violence, terrorism, fraud, or
Section 6 of the Omnibus Election Code. As such therefore, the other analogous causes; (b) the election in any polling place
case at bar falls within the jurisdiction of COMELEC. had been suspended before the hour fixed by law for the
closing of the voting on account of force majeure, violence,
x x x x x x x x x. terrorism, fraud or other analogous causes; (c) after the
voting and during the preparation and transmission of the
18. At any rate, there is merit to petitioners claim that the votes election returns or in the custody or canvass thereof, such
in the subject election returns, if correctly appreciated, will election results in a failure to elect on account of force
materially affect the results of the election for Governor, i.e., majeure, violence, terrorism, fraud, or other analogous
causes.[9] In all instances there must have been failure to
TYPOCO PIMENTEL elect; this is obvious in the first scenario where the election
was not held and the second where the election was
Votes per PBC Canvass 53,454 64,358 suspended. As to the third scenario, the preparation and
transmission of the election returns which give rise to the
Less: Votes obtained from consequence of failure to elect must as aforesaid be literally
interpreted to mean that nobody emerged as a winner.
Fraudulent Returns 11,253 27,060
None of these circumstances is present in the case at bar. While
Difference 42,201 37,325 the OSG joins TYPOCO in pinpointing anomalies in the
preparation of the election returns due to the uniformity of the
Vote Lead of Petitioner 4,876[5] handwriting in the same, implying that fraud was committed at
that stage, the fact is that the casting and counting of votes
RULING: proceeded up to the proclamation of the winning candidate
The authority of the COMELEC to declare a failure of thus precluding the declaration of a failure of election. While
elections is derived from Section 4 of Republic Act No. fraud is a ground to declare a failure of election, the
7166, otherwise known as, The Synchronized Elections Law commission of fraud must be such that it prevented or
of 1991, which provides that the COMELEC sitting En suspended the holding of an election including the preparation
Banc by a majority vote of its members may decide, among and transmission of the election returns.[10]
others, the declaration of failure of election and the calling
of special elections as provided in Section 6 of the Omnibus It can thus readily be seen that the ground invoked by
Election Code. Said Section 6, in turn, provides as follows: TYPOCO is not proper in a declaration of failure of

8
 Page 9 of 48

election. TYPOCOs relief was for COMELEC to order a

recount of the votes cast, on account of the falsified election Petitioner then filed a Petition before the Comelec praying that
returns, which is properly the subject of an election the election be declared a failure. Alleging that no election was
contest.[11] conducted in the place and at the time prescribed by law,
petitioner narrated that there was a dispute that day (August 30,
The COMELEC, therefore, had no choice but to dismiss 1997) among the candidates regarding the venue of the election
TYPOCOs petition in accordance with clear provisions of the in the lone voting precinct of the barangay. In order to avoid
law and jurisprudence. bloodshed, they ultimately agreed that no election would be
conducted. Accordingly, the election officer turned over for
WHEREFORE, finding no grave abuse of discretion safekeeping the ballot box containing election paraphernalia to
committed by public respondent Commission on Elections, the the acting station commander (OIC) of the Philippine National
petition is DISMISSED and its Resolution En Banc of October Police (PNP). The following day, petitioner and the third
12,1998 dismissing the petition before it on the ground that the candidate were surprised to learn that the election officer had
allegations therein do not justify a declaration of failure of directed the Board of Election Tellers to conduct the election
election is AFFIRMED. and to fill up the election returns and certificates of canvass on
the night of August 30, 1997 at the residence of the former
SO ORDERED. mayor. Petitioner also stated that no announcement to hold the
election at the former mayors house that night was ever
9. [G.R. No. 139028. April 12, 2000] made.[6]

HADJI RASUL BATADOR BASHER, petitioner, vs. As earlier stated, the Comelec dismissed the Petition. Hence,
COMMISSION ON ELECTIONS and ABULKAIR this recourse to this Court.[7]
AMPATUA, respondents.
Ruling of the Comelec
DECISION
The Comelec ruled against a failure of election because the two
PANGANIBAN, J.: conditions laid down in Mitmug v. Comelec[8] were not
established. It held that the "election was conducted on the
An election must be held at the place, date and time prescribed scheduled date. The precinct functioned. Actual voting took
by law. Likewise, its suspension or postponement must comply place, and it resulted not in a failure to elect."[9]
with legal requirements. Otherwise, it is irregular and void. h Y
In justifying the balloting at the dead of night, the poll body
The Case cited Section 22, Article IV of Comelec Resolution 2971,
Petitioner[1] assails before us the June 8, 1999 Resolution of which provided in part that "[i]f at three oclock, there are still
the Commission on Elections (Comelec)[2] in SPA Case No. voters within thirty meters in front of the polling place who
97-276 which dismissed a Petition to Declare a Failure of have not cast their votes, the voting shall continue to allow said
Election and to Call Special Election in Precinct No. 12, voters to cast their votes without interruption. x x x" The
Barangay Maidan, Tugaya, Lanao del Sur. The assailed Comelec then went on to state that "experience had shown that
Resolution disposed as follows: Jksm even when there is a long delay in the commencement of the
voting, voters continue to stay within the area of the polling
"In view of the foregoing considerations, We he[re]by hold place."[10]
that the special elections in Barangay Maidan, Tugaya, Lanao
del Sur on August 30, 1997 did not fail. The result thereof must ISSUES:
therefore be accorded respect.
Petitioner submits the following questions for the consideration
"WHEREFORE, premises considered, the Commission En of the Court:
Banc RESOLVES to DISMISS the petition for lack of
merit."[3] "1. Whether or not the election held at around 10:00 oclock in
the evening of August 30, 1997 after the Acting Election
FACTS: Officer had verbally declared or announced a failure of
election in Precinct No. 12, Barangay Maidan, Tugaya, Lanao
Petitioner Hadji Rasul Batador Basher and Private Respondent del Sur is contrary to law, rule and jurisprudence;
Abulkair Ampatua were both candidates for the position of
Punong Barangay in Barangay Maidan, Tugaya, Lanao del Sur "2. Whether or not the election held at the residence of an Ex-
during the May 12, 1997 barangay election. The election was mayor far from the designated Polling Place of Precinct No.
declared a failure and a special one was set for June 12, 1997. 12, Barangay Maidan, Tugaya, Lanao del Sur is legal or valid;
Again, the election failed and was reset to August 30, 1997.
Chief "3. Whether or not the proclamation of the private respondent
as the duly elected Punong Barangay of Barangay Maidan and
According to the Comelec, the voting started only around 9:00 the seven (7) Barangay Kagawads is illegal, null and void ab
p.m. on August 30, 1997 because of the prevailing tension in initio."[11]
the said locality. Election Officer Diana DatuImam reported
that she was allegedly advised by some religious leaders not to MAIN ISSUE: In the main, the crucial question that needs
proceed with the election because "it might trigger bloodshed." to be addressed is whether the "election" held on the date,
She also claimed that the town mayor, "being too hysterical, at the time and in the place other than those officially
yelled and threatened me to declare [a] failure of election in designated by the law and by the Comelec was valid. NO
Maidan." Subsequently, the armed followers of the mayor
pointed their guns at her and her military escorts, who RULING:
responded in like manner towards the former. The parties were
then pacified at the PNP headquarters. With the arrival of The Petition is meritorious.
additional troops, the election officer proceeded to Maidan to
conduct the election starting at 9:00 p.m. until the early Main Issue: Validity of the Special Election
morning of the following day. The holding of the election at
that particular time was allegedly announced "over the Citing Mitmug v. Comelec,[12] the Comelec points out that a
mosque."[4] failure of election requires the concurrence of two conditions,
namely (1) no voting took place in the precinct or precincts on
The tally sheet for the said "election" showed the following the date fixed by law, or even if there was voting, the election
results: private respondent 250 votes; petitioner 15 votes; and resulted in a failure to elect; and (2) the votes not cast would
Baulo Abdul Razul, a third candidate 10 votes.[5] Private have affected the result of the election. It ruled that these
respondent was proclaimed winner. requirements were not met. Esmsc

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We do not agree. The peculiar set of facts in the present

case show not merely a failure of election but the absence of Third, the Comelec scheduled the special election on
a valid electoral exercise. Otherwise stated, the disputed August 30, 1997. Any suspension or postponement of an
"election" was illegal, irregular and void. Esmmis election is governed by Section 2 of RA 6679,[17] which
states that "[w]hen for any serious cause such as rebellion,
Election Situs Was Illegal insurrection, violence, terrorism, loss or destruction of
election paraphernalia, and any analogous causes of such
First, the place where the voting was conducted was illegal. nature that the holding of a free, orderly and honest
Section 42 of the Omnibus Election Code provides that election should become impossible in any barangay, the
"[t]he chairman of the board of election tellers shall Commission on Election motu proprio or upon sworn
designate the public school or any other public building petition of ten (10) registered voters of a barangay, after
within the barangay to be used as polling place in case the summary proceedings of the existence of such grounds,
barangay has one election precinct x x x." Petitioner, citing shall suspend or postpone the election therein to a date
an Affidavit[13] supposedly executed by the members of the reasonably close to the date of the election that is not held
Board of Election Tellers (BET) for Barangay Maidan, alleges or is suspended or postponed, or which resulted in a failure
that the election of officials for said barangay was held at the to elect, but not later than thirty (30) days after the
residence of former Mayor Alang Sagusara Pukunun, which is cessation of the cause for such suspension or postponement
located at Barangay Pandarianao, instead of the officially of the election or failure to elect, and in all cases not later
designated polling precinct at Cagayan Elementary School. If than ninety (90) days from the date of the original
this allegation were true, such "election" cannot be valid, as it election." Kycalr
was not held within the barangay of the officials who were
being elected. On the other hand, it is admitted that there was a Election Officer Diana Datu-Imam of Tugaya, Lanao del Sur
public school or building in Barangay Maidan -- the Cagayan practically postponed the election in Barangay Maidan from
Elementary School, which was the earlier validly designated the official original schedule of 7:00 a.m. to 3:00 p.m. of
voting center. August 30, 1997 to 10:00 p.m. of August 30, 1997 until the
early morning of August 31, 1997. She attempted to justify her
While the BET members later repudiated their Affidavit, they postponement of the election by citing threats of violence and
could only claim that the election was held "in Barangay bloodshed in the said barangay. Allegedly because of the
Maidan."[14] They, however, failed to specify the exact venue. tension created by armed escorts of the municipal mayor and
In fact, to this date, even the respondents have failed to the military, Datu-Imam declared a failure of election in order
disclose where exactly the voting was conducted. This glaring "to ease their aggression." However, as election officer, she has
omission definitely raises serious questions on whether the no authority to declare a failure of election. Indeed, only the
election was indeed held in a place allowed by law. Esmso Comelec itself has legal authority to exercise such awesome
power. An election officer alone, or even with the agreement of
Voting Time Was Likewise Irregular the candidates, cannot validly postpone or suspend the
elections. Calrky
Second, as to the time for voting, the law provides that
"[t]he casting of votes shall start at seven o'clock in the Election Postponement Was Invalid
morning and shall end at three o'clock in the afternoon,
except when there are voters present within thirty meters Fourth, Datu-Imam did not follow the procedure laid down by
in front of the polling place who have not yet cast their law for election postponement or suspension or the declaration
votes, in which case the voting shall continue but only to of a failure of election. She narrated the circumstances
allow said voters to cast their votes without surrounding her declaration as follows:[18]
interruption."[15] Section 22, Article IV of Comelec
Resolution No. 2971 also specifies that the voting hours "When I returned to [as]certain the situation in Maidan, the
shall start promptly at 7:00 a.m. and end at 3:00 p.m. of the Mayor, being too hysterical, yelled and threatened me to
same day. Msesm declare [a] failure of elections in Maidan. When I insisted to
personally confirm the probable cause of bloodshed (at
However, the "election" for Barangay Maidan officials was Maidan), his armed followers/escorts pointed their guns to me
supposed to have been held after 9:00 p.m. of August 30, 1997 and my escorts. Likewise my military escorts pointed their
until the wee hours of the following day. Certainly, such guns to the mayor and his men 'Man to Man'. The Datus and
schedule was not in accordance with law or the Comelec religious leaders pacified us at the PNP Headquarters.
Rules. The Comelec erred in relying on the second sentence of
Section 22, Article IV of Comelec Resolution 2971, which "After a couple of hours, the military officers and I agreed to
states that "[i]f at three o'clock [in the afternoon], there are still adapt another strategy just to pursue with the elections in
voters within thirty meters in front of the polling place who Maidan [by] hook or by crook. Considering that they forcibly
have not cast their votes, the voting shall continue to allow said took away from us the ballot box containing paraphernalia of
voters to cast their votes without interruption." This sentence Maidan, I didn't have any recourse but give them. I turned-over
presupposes that the election commenced during the official the ballot box to the Acting Chief of Police, Malik Bantuas
time and is simply continued beyond 3:00 p.m. in order to with proper receipt, taking away from the box the CEF 2 & 2-
accommodate voters who are within thirty meters of the A, declaring verbally a failure of elections in Maidan just to
polling place, already waiting for their turn to cast their votes. ease their aggression and so that we could pull-out of the place
This is clearly the meaning and intent of the word continue -- freely."
"to go on in a specified course of action or condition."[16] The
action or condition already subsists and is allowed to go on. It clearly appears from the very report of Datu-Imam to the
Otherwise, the law should have stated instead that "the voting Comelec that she did not conduct any proceeding, summary or
may also start even beyond 3:00 p.m. if there are voters within otherwise, to find out whether any of the legal grounds for the
thirty meters in front of the polling place." Exsm suspension or postponement or the declaration of failure of the
election actually existed in the barangay concerned. Mesm
The strained interpretation espoused by the Comelec
encourages the conduct of clandestine "elections," for it Notice Was Irregular
virtually authorizes the holding of elections beyond normal
hours, even at midnight when circumstances could be more Finally and very significantly, the electorate was not given
threatening and conducive to unlawful activities. On a ample notice of the exact schedule and venue of the election.
doctrinal basis, such nocturnal electoral practice discourages The election officer herself relates:[19]
the people's exercise of their fundamental right of suffrage, by
exposing them to the dangers concomitant to the dead of night, "When the tension was slightly alleviated, I directed the
especially in far-flung barangays constantly threatened with military personnel to pull-out of the Municipio and withdrew
rebel and military gunfires. Kyle to a nearby Barangay (for safety) where some of the militaries
(sic) were deployed. After planning and coordinating with the
Election Date Was Invalid Batallion (sic) Commander, we waited for the additional troups

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(sic) that arrived at around 8:30 in the evening. At the stroke of Petitioner and private respondent were the candidates for vice-
9:00 o'clock, we started for Maidan via the national Highway mayor of the City of Paraaque in the May 11, 1998 election.
thru the Municipality of Balindong and others thru a short-cut On May 19, 1998, the city board of canvassers proclaimed
way (sic) eastward of Tugaya. Utilizing the election private respondent, Florencio M. Bernabe, Jr., the winner for
paraphernalia earlier shipped by the Commission as I have having garnered a total of Seventy One Thousand Nine
requested (sic) and a ballot box from the PES, we went on with Hundred Seventy Seven (71,977) votes of the total votes cast
the election (after announcing it over the mosque) peacefully for the vice-mayoralty position. On the other hand, petitioner,
and orderly despite the tiredness (sic) and exhaustion felt by Tomas T. Banaga, Jr., received the second highest number of
the people the whole day waiting/expecting for the election as I votes for the said position, with Sixty Eight Thousand Nine
have assured them earlier (sic). x x x" Hundred Seventy (68,970) of the total votes cast. Thus, the
difference between the votes received by the private
As can be gleaned easily from the above report, the electorate respondent and the petitioner is three thousand seven (3,007)
of Barangay Maidan was not given due notice that the election votes.
would push through after 9:00 p.m. that same day. Apparently,
the election officer's decision to hold the election on the night Dissatisfied, petitioner filed with the COMELEC on May 29,
of August 30, 1997 was precipitate. Only after additional 1998, an action denominated as Petition to Declare Failure of
military troops had arrived at their site in a nearby barangay Elections and/or For Annulment of Elections,[1] alleging that:
about 8:30 p.m. did the election officers proceed to Barangay
Maidan. Arriving at Maidan, they allegedly proceeded to 3. xxx the local elections for the office of Vice-Mayor in the
conduct the election "after announcing it over the mosque." City of Paraaque, Metro Manila, held on 11 May 1998,
amounts to a denigration of the expression of the true will of
Such abbreviated announcement "over the mosque" at such late the people, as it was tainted with widespread election
hour did NOT constitute sufficient notice to the electorate. anomalies which constitutes election fraud. The local elections
Consequently, not the entire electorate or even a respectable for the position of Vice-Mayor in the City of Paraaque, Metro
number could have known of the activity and actually Manila, was replete with election offenses, specifically vote
participated therein or voluntarily and discerningly chosen not buying and flying voters being allowed to vote. Moreover,
to have done so. Slx during the canvassing of votes before the Board of Canvasser,
numerous Election Returns were discovered to contain glaring
Indeed, the Court in Hassan v. Comelec[20] held that the discrepancies and are replete with blatant omissions, not to
notice given on the afternoon of the election day resetting the mention the fact that numerous election returns appeared to be
election to the following day and transferring its venue was tampered with. All told, it is readily apparent that the portion
"too short." We said that "[t]o require the voters to come to the of the Election Returns pertaining to the position of Vice-
polls on such short notice was highly impracticable. x x x It is Mayor in the City of Paraaque, appear to be altered, falsified or
essential to the validity of the election that the voters have fabricated.
notice in some form, either actual or constructive, of the time,
place and purpose thereof.[21] The time for holding it must be 4. The will of the legitimate voters of the City of Paraaque
authoritatively designated in advance."[22] were denigrated during the 11 May 1998 election as a
consequence of the fact that an indeterminable number of
In the case at bar, the announcement was made only minutes flying voters were allowed to vote.
before the supposed voting. If one-day notice was held to be
insufficient in Hassan, the much shorter notice in the present xxx
case should all the more be declared wanting. It should in fact
be equated with "no notice." Scslx 5. The 11 May 1998 elections for local officials in the City of
Paraaque has likewise been marred by massive vote buying. To
In sum, the "election" supposedly held for officials of cite but one example, in Precinct Nos. 111-112 at the Tambo
Barangay Maidan cannot be clothed with any form of Elementary School in the City of Paraaque, a certain Dennis
validity. It was clearly unauthorized and invalid. It had no Sambilay Agayan (Agayan) was arrested for voting in
legal leg to stand on. Not only did the substitution of registered voter Ramon Vizcarra. Agayan
suspension/postponement not comply with the procedure admitted before SPO1 Alberto V. Parena that he was paid One
laid down by law and the Comelec Rules, neither was there Hundred Fifty Pesos (P150.00) to vote at precincts No. 111-
sufficient notice of the time and date when and the place 112 and use the name Ramon Vizcarra. As proof of the
where it would actually be conducted. It was thus as if no foregoing, attached hereto as Annex E is the Information dated
election was held at all. Hence, its results could not 11 May 1998 filed against Agayan.
determine the winning punong barangay. Slxsc
The magnitude of the vote buying in the 11 May 1998 local
WHEREFORE, the Petition is hereby GRANTED and the elections in the City of Paraaque, is such that the voters
assailed Resolution SET ASIDE. The proclamation of private involved number in the thousands. Evidence in this regard shall
respondent as punong barangay is hereby declared VOID. be presented in the proper time.
Respondent Comelec is ORDERED to conduct a special
election for punong barangay of Maidan, Tugaya, Lanao del 6. Also, there have been several instances where purported
Sur as soon as possible. No pronouncement as to costs. Slxmis voters were depositing more than one (1) ballot inside the
ballot box. As evidence thereof, attached hereto as Annex F is
SO ORDERED. the Affidavit of a certain Rosemarie Pascua of Barangay
Baclaran, City of Paraaque.
11. [G.R. No. 134696. July 31, 2000]
7. The foregoing incidents alone actually suffices to establish
TOMAS T. BANAGA, JR., petitioner, vs. COMMISSION that a failure of elections should be declared on the ground that
ON ELECTIONS and FLORENCIO M. BERNABE, JR., the will of the electorate of the City of Paraaque has been
respondents. denigrated. The elections for the office of the Vice-Mayor in
DECISION the City of Paraaque, on 11 May 1998 cannot be considered as
QUISUMBING, J.: reflective of the true will of the electorate. However, the
anomalies do not stop there.
This special civil action for certiorari seeks to annul the en
banc resolution of public respondent Commission on Elections 8. In addition to the foregoing, during the canvassing of votes
promulgated on June 29, 1998, in a COMELEC special action before the Board of Canvassers, it was discovered that
case, SPA No. 98-383. numerous election returns contain glaring discrepancies and
are replete with blatant omissions, not to mention the fact that
FACTS: several election returns appeared to be tampered with or appear
to be fabricated. The Honorable Commission should seriously
consider these anomalies specially on account of the fact that

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the lead of the respondent over the petitioner is a mere Three I

Thousand Seven (3,007) votes.
THE PETITION DATED 28 MAY 1998 IS ESSENTIALLY
xxx AN ELECTION PROTEST. HENCE, THE COMELEC
COULD NOT LEGALLY DISMISS THE ENTIRE
9. Moreover, several Election Returns are found to have PETITION MERELY ON THE GROUND THAT THERE
glaring discrepancies which may materially alter the results of WAS ALLEGEDLY NO FAILURE OF ELECTION IN THE
the election for the office of Vice-Mayor in the City of CITY OF PARANAQUE DURING THE 11 MAY 1998
Paraaque. ELECTIONS.

xxx II

10. Finally, what seriously casts doubt on the legitimacy of the THE AUTHORITY RELIED UPON BY THE COMELEC AS
elections for the office of the Vice-Mayor in the City of BASIS FOR THE DISMISSAL OF THE PETITION DATED
Paraaque is the fact that the results thereof are statistically 28 MAY 1998, THAT OF EDWIN SAR[D]EA, ET. AL. V.
improbable. A case in point is precinct number 483 where COMELEC, ET. AL., AND MITMUG V. COMELEC, ARE
petitioner shockingly is supposed to have received zero (0) NOT APPLICABLE TO THE CASE AT BAR
votes. Petitioner is the incumbent Vice-Mayor of the City of CONSIDERING THAT ASIDE FROM BEING AN
Paraaque. It is, thus, impossible that he will receive zero (0) ELECTION PROTEST, THE SAID PETITION SEEKS THE
votes in any given precinct.[2] ANNULMENT OF AN ELECTION PURSUANT TO THE
DOCTRINE LAID DOWN BY THE HONORABLE
Petitioner asked the COMELEC for the following reliefs: SUPREME COURT IN LOONG V. COMELEC.[6]

1. After trial, judgment be rendered as follows: ISSUE:

Clearly, the issue for our resolution is whether or not public
1.1 Declaring a failure of elections, or declaring the annulment respondent acted with grave abuse of discretion in dismissing
of the elections, for the office of the Vice-Mayor in the City of petitioners petition, in the light of petitioners foregoing
Paraaque, Metro Manila; contentions.

1.2. Annulling the proclamation of the respondent as the RULING:

elected Vice-Mayor of the City of Paraaque, Metro Manila, While petitioner may have intended to institute an election
during the 11 May 1998 elections; and protest by praying that said action may also be considered an
election protest, in our view, petitioners action is a petition to
1.3. Declaring that special elections should be held for the declare a failure of elections or annul election results. It is
office of Vice-Mayor in the City of Paraaque, Metro Manila. not an election protest.

2. Alternatively, in the remote event that the Honorable First, his petition before the COMELEC was instituted
Commission does not render judgment as aforesaid, an order pursuant to Section 4 of Republic Act No. 7166 in relation
be issued to the Treasurer of the City of Paraaque to bring and to Section 6 of the Omnibus Election Code. Section 4 of RA
present before this Honorable Commission on or before the 7166 refers to postponement, failure of election and special
day of the hearing of the Election Protest, the ballot boxes, elections[7] while Section 6 of the Omnibus Election Code
copies of the registry lists, election returns, the minutes of relates to failure of election. It is simply captioned as
election in all precincts, and the other documents used in the Petition to Declare Failure of Elections and/or For
local elections for the Office of the Vice-Mayor held on 11 Annulment of Elections.
May 1998 in the said City, for the Honorable Commission to
re-examine and revise the same; and Second, an election protest is an ordinary action while a
petition to declare a failure of elections is a special action
3. After due trial judgment be rendered as follows: under the 1993 COMELEC Rules of Procedure as
amended. An election protest is governed by Rule 20 on
3.1. The election of respondent FLORENCIO M. BERNABE, ordinary actions, while a petition to declare failure of
JR., for the office of Vice-Mayor in the City of Paraaque, elections is covered by Rule 26 under special actions.
Metro Manila be annulled;
In this case, petitioner filed his petition as a special action and
3.2. The petitioner, TOMAS T. BANAGA, JR., be adjudged as paid the corresponding fee therefor. Thus, the petition was
the duly elected Vice-Mayor in the City of Paraaque, during docketed as SPA-98-383. This conforms to petitioners
the 11 May 1998 local elections; and categorization of his petition as one to declare a failure of
elections or annul election results. In contrast, an election
3.3. The expenses, costs and damages incurred in these protest is assigned a docket number starting with EPC,
proceedings be assessed against the respondent. meaning election protest case.

Other just and equitable reliefs are likewise prayed for.[3] Third, petitioner did not comply with the requirements for
filing an election protest. He failed to pay the required
On June 29, 1998, the COMELEC dismissed petitioners suit. It filing fee and cash deposits for an election protest. Failure
held that the grounds relied upon by petitioner do not fall under to pay filing fees will not vest the election tribunal
any of the instances enumerated in Section 6 of the Omnibus jurisdiction over the case. Such procedural lapse on the
Election Code. The election tribunal concluded that based on part of a petitioner would clearly warrant the outright
the allegations of the petition, it is clear that an election took dismissal of his action.
place and that it did not result in a failure to elect.[4]
Fourth, an en banc decision of COMELEC in an ordinary
Considering that a motion for reconsideration of a COMELEC action becomes final and executory after thirty (30) days
en banc ruling is prohibited, except in a case involving an from its promulgation, while an en banc decision in a
election offense,[5] and aggrieved by the COMELECs special action becomes final and executory after five (5)
dismissal of his suit, petitioner timely filed the instant petition days from promulgation, unless restrained by the Supreme
for certiorari with this Court. Court.[8] For that reason, a petition cannot be treated as
both an election protest and a petition to declare failure of
Before us, petitioner now claims that the COMELEC elections.
committed grave abuse of discretion amounting to lack or
excess of jurisdiction when it dismissed his petition motu Fifth, the allegations in the petition decisively determine its
propio without any basis whatsoever and without giving him nature. Petitioner alleged that the local elections for the
the benefit of a hearing. He contends that: office of vice-mayor in Paraaque City held on May 11,
1998, denigrates the true will of the people as it was marred

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with widespread anomalies on account of vote buying,

flying voters and glaring discrepancies in the election In Mitmug vs. COMELEC,[12] petitioner instituted with the
returns. He averred that those incidents warrant the COMELEC an action to declare failure of election in forty-
declaration of a failure of elections.[9] nine precincts where less than a quarter of the electorate were
able to cast their votes. He also lodged an election protest with
Given these circumstances, public respondent cannot be said to the Regional Trial Court disputing the result of the election in
have gravely erred in treating petitioners action as a petition to all precincts in his municipality. The COMELEC denied motu
declare failure of elections or to annul election results. propio and without due notice and hearing the petition to
declare failure of election despite petitioners argument that he
The COMELECs authority to declare a failure of elections has meritorious grounds in support thereto, that is, massive
is provided in our election laws. Section 4 of RA 7166 disenfranchisement of voters due to terrorism. On review, we
provides that the COMELEC sitting en banc by a majority ruled that the COMELEC did not gravely abuse its discretion
vote of its members may decide, among others, the in denying the petition. It was not proven that no actual voting
declaration of failure of election and the calling of special took place. Neither was it shown that even if there was voting,
election as provided in Section 6 of the Omnibus Election the results thereon would be tantamount to failure to elect.
Code. Said Section 6, in turn, provides as follows: Considering that there is no concurrence of the conditions
seeking to declare failure of election, there is no longer need to
Section 6. Failure of Elections. --- If, on account of force receive evidence on alleged election irregularities.
majeure, violence, terrorism, fraud or other analogous
causes the election in any polling place has not been held on In Sardea vs. COMELEC,[13] all election materials and
the date fixed, or had been suspended before the hour fixed paraphernalia with the municipal board of canvassers were
by law for the closing of the voting, or after the voting and destroyed by the sympathizers of the losing mayoralty
during the preparation and the transmission of the election candidate. The board then decided to use the copies of election
returns or in the custody or canvass thereof, such election returns furnished to the municipal trial court. Petitioner therein
results in a failure to elect, and in any of such cases the filed a petition to stop the proceedings of the board of
failure or suspension of election would affect the result of canvassers on the ground that it had no authority to use said
the election, the Commission shall, on the basis of verified election returns obtained from the municipal trial court. The
petition by any interested party and after due notice and petition was denied. Next, he filed a petition assailing the
hearing, call for the holding or continuation of the election composition of the board of canvassers. Despite that petition,
not held, suspended or which resulted in a failure to elect the board of canvassers proclaimed the winning candidates.
on a date reasonably close to the date of the election not Later on, petitioner filed a petition to declare a failure of
held, suspended or which resulted in a failure to elect but election alleging that the attendant facts would justify
not later than thirty days after the cessation of the cause of declaration of such failure. On review, we ruled that petitioners
such postponement or suspension of the election or failure first two actions involved pre-proclamation controversies
to elect. which can no longer be entertained after the winning
candidates have been proclaimed. Regarding the petition to
There are three instances where a failure of election may be declare a failure of election, we held that the destruction and
declared, namely, (a) the election in any polling place has not loss of copies of election returns intended for the municipal
been held on the date fixed on account of force majeure, board of canvassers on account of violence is not one of the
violence, terrorism, fraud or other analogous causes; (b) the causes that would warrant the declaration of failure of election.
election in any polling place has been suspended before the The reason is that voting actually took place as scheduled and
hour fixed by law for the closing of the voting on account of other valid election returns still existed. Moreover, the
force majeure, violence, terrorism, fraud or other analogous destruction or loss did not affect the result of the election. We
causes; or (c) after the voting and during the preparation and also declared that there is failure of elections only when the
transmission of the election returns or in the custody or canvass will of the electorate has been muted and cannot be
thereof, such election results in a failure to elect on account of ascertained. If the will of the people is determinable, the same
force majeure, violence, terrorism, fraud or other analogous must as far as possible be respected.
causes. In these instances, there is a resulting failure to elect.
This is obvious in the first two scenarios, where the election These aforecited cases are instructive in the resolution of the
was not held and where the election was suspended. As to the present case because they involve similar actions and issues.
third scenario, where the preparation and the transmission of No error could be attributed to public respondent for its
the election returns give rise to the consequence of failure to reliance on these precedents.
elect must as aforesaid, is interpreted to mean that nobody
emerged as a winner.[10] In Loong vs. Comelec,[14] the petition for annulment of
election results or to declare failure of elections in Parang,
Before the COMELEC can act on a verified petition Sulu, on the ground of statistical improbability and massive
seeking to declare a failure of election two conditions must fraud was granted by the COMELEC.[15] Even before the
concur, namely (1) no voting took place in the precinct or technical examination of election documents was conducted,
precincts on the date fixed by law, or even if there was the COMELEC already observed badges of fraud just by
voting, the election resulted in a failure to elect; and (2) the looking at the election results in Parang. Nevertheless, the
votes not cast would have affected the result of the COMELEC dismissed the petition for annulment of election
election.[11] Note that the cause of such failure of election results or to declare failure of elections in the municipalities of
could only be any of the following: force majeure, violence, Tapul, Panglima Estino, Pata, Siasi and Kalinggalang Calauag.
terrorism, fraud or other analogous causes. The COMELEC dismissed the latter action on ground of
untimeliness of the petition, despite a finding that the same
badges of fraud evident from the results of the election based
We have painstakingly examined the petition filed by on the certificates of canvass of votes in Parang, are also
petitioner Banaga before the COMELEC. But we found that evident in the election results of the five mentioned
petitioner did not allege at all that elections were either not municipalities. We ruled that COMELEC committed grave
held or suspended. Neither did he aver that although there was abuse of discretion in dismissing the petition as there is no law
voting, nobody was elected. On the contrary, he conceded that which provides for a reglementary period to file annulment of
an election took place for the office of vice-mayor of Paraaque elections when there is yet no proclamation. The election
City, and that private respondent was, in fact, proclaimed resulted in a failure to elect on account of fraud. Accordingly,
elected to that post. While petitioner contends that the election we ordered the COMELEC to reinstate the aforesaid petition.
was tainted with widespread anomalies, it must be noted that to Those circumstances, however, are not present in this case, so
warrant a declaration of failure of election the commission of that reliance on Loong by petitioner Banaga is misplaced.
fraud must be such that it prevented or suspended the holding
of an election, or marred fatally the preparation and Petitioner argues that the COMELEC should not have treated
transmission, custody and canvass of the election returns. his prayer for annulment of elections as a prayer for declaration
These essential facts ought to have been alleged clearly by the of failure of elections.[16] This argument is plainly gratuitous
petitioner below, but he did not. as well as immaterial. A prayer to declare failure of elections

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and a prayer to annul the election results for vice mayor in this
case are actually of the same nature. Whether an action is for On May 30, 2001, petitioners filed with the Comelec a motion
declaration of failure of elections or for annulment of election to lift the suspension of proclamation.[10] On June 14, 2001,
results, based on allegations of fraud, terrorism, violence or the Comelec issued an order lifting the suspension of
analogous cause, the Omnibus Election Code denominates proclamation of the winning candidates for governor, vice-
them similarly.[17] No positive gain will accrue to petitioners governor and board members of the first and second
cause by making a distinction without a difference. districts.[11] Consequently, the Provincial Board of Canvassers
proclaimed petitioners winners.[12]
Finally, petitioner claims that public respondent gravely abused
its discretion when it dismissed his petition motu propio. On June 16, 2001, respondents filed with the Supreme Court a
However, the fact that a verified petition has been filed does petition to set aside the Comelec order dated June 14, 2001,
not mean that a hearing on the case should first be held before and preliminary injunction to suspend the effects of the
COMELEC can act on it. The petition to declare a failure of proclamation of the petitioners.[13] Meantime, petitioners
election and/or to annul election results must show on its face assumed their respective offices on June 30, 2001. On July 17,
that the conditions necessary to declare a failure to elect are 2001, the Court resolved to deny respondents petition.[14]
present. In their absence, the petition must be denied
outright.[18] Public respondent had no recourse but to dismiss Petitioners assumption into office notwithstanding, on July 26,
petition. Nor may petitioner now complain of denial of due 2001, the Comelec ordered the consolidation of respondents
process, on this score, for his failure to properly file an election petition for declaration of failure of elections with SPA Nos.
protest. The COMELEC can only rule on what was filed before 01-244, 01-332, 01-360, 01-388 and 01-390.[15] The
it. It committed no grave abuse of discretion in dismissing his COMELEC further ordered a random technical examination on
petition to declare failure of elections and/or for annulment of four to seven precincts per municipality on the thumb-marks
elections for being groundless, hence without merit. and signatures of the voters who voted and affixed in their
voters registration records, and forthwith directed the
WHEREFORE, the instant petition is DISMISSED. The production of relevant election documents in these
assailed RESOLUTION of public respondent is AFFIRMED. municipalities.[16]
Costs against petitioner.
On August 28, 2001, the Comelec issued another order[17]
SO ORDERED. directing the continuation of the hearing and disposition of the
consolidated SPAs on the failure of elections and other
12. [G. R. No. 149803. January 31, 2002] incidents related thereto. It likewise ordered the continuation of
the technical examination of election documents as authorized
DATU ANDAL S. AMPATUAN, BIMBO Q. SINSUAT, in the July 26, 2001 order. On September 27, 2001, the
SR., IBRAHIM B. BIRUAR, ALONTO B. DAUDIE, Comelec issued an order outlining the procedure to be
MICHAEKL B. DIRANGAREN, ASNAWIS S. followed in the technical examination.[18]
LIMBONA, RUSSMAN Q. SINSUAT, ZALNUDIN M.
ABUTAZIL, DATUWATA U. ADZIS, BORGIVA T. On September 26, 2001, petitioners filed the present
DATU-MANONG, FREDDIE G. MANGUDADATU and petition.[19] They claimed that by virtue of their proclamation
ABBAS A. PENDATUN, JR., petitioners, vs. pursuant to the June 14, 2001 order issued by the Comelec, the
COMMISSION ON ELECTIONS, DATU ZACARIA A. proper remedy available to respondents was not a petition for
CANDAO, DATU NORODIN M. MATALAM, KHARIS declaration of failure of elections but an election protest. The
M. BARAGUIR, PAGRAS D. BIRUAR, CAHAR PENDAT former is heard summarily while the latter involves a full-
IBAY, PATULA O. TIOLO, MARHOMSAL K. LAUBAN, blown trial. Petitioners argued that the manner by which the
MENTANG T. KABAGANI, ELIZABETH C. MASUKAT, technical examination is to be conducted[20] would defeat the
GAPOR A. RAJAMUDA, SAID S. SALIK and LINTATO summary nature of a petition for declaration of failure of
G. SANDIGAN, respondents. elections.
DECISION
PARDO, J.: On October 5, 2001, petitioners filed a motion[21] reiterating
their request for a temporary restraining order to enjoin the
The case is a petition for certiorari and prohibition under Rule implementation of the July 26, 2001 and August 28, 2001
64 in relation to Rule 65 of the Revised Rules of Court with Comelec orders.
preliminary injunction or temporary restraining order[1] to
nullify and set aside two (2) orders dated July 26, 2001[2] and On October 22, 2001, the Comelec issued an order suspending
August 28, 2001[3] of the Commission on Elections the implementation of the two (2) assailed orders, the pertinent
(COMELEC), ordering a random technical examination of portion of which reads as follows:
pertinent election paraphernalia and other documents in several
municipalities in the province of Maguindanao to determine a The Commission, in view of the pendency of G. R. No. 149803
failure of elections. xxx, requiring it to comment within ten (10) days from notice,
hereby suspends implementation of its orders of July 26, 2001
FACTS: and August 28, 2001 in deference to the resolution of said
Petitioners[4] and respondents[5] were candidates for the court.[22]
provincial elective positions in the province of Maguindanao in
the May 14, 2001 election. Petitioner Ampatuan and However, on November 13, 2001, the Comelec issued another
respondent Candao contended for the position of governor. The order lifting the suspension.[23]
slate of Ampatuan emerged as winners as per election returns.
On November 20, 2001, we issued a temporary restraining
On May 23, 2001, respondents filed a petition with the order, to wit:
Comelec for the annulment of election results and/or
declaration of failure of elections[6] in several xxx the Court Resolved to (a) ISSUE the TEMPORARY
municipalities[7] in the province of Maguindanao. They RESTRAINING ORDER prayed for, effective immediately
claimed that the elections were completely sham and farcical. and continuing until further orders from this Court, ordering
The ballots were filled-up en masse by a few persons the night the respondent Commission on Elections to CEASE and
before election day, and in some precincts, the ballot boxes, DESIST from ordering the lifting of the suspended
official ballots and other election paraphernalia were not implementation orders dated 26 July 2001 and 28 August 2001
delivered at all.[8] in SPA No. 01-323 xxx.[24]

On May 25, 2001, the Comelec issued an order suspending the ISSUE:
proclamation of the winning candidates for congressman of the The main issue to be resolved is whether the Commission on
second district, governor, vice-governor and board members of Elections was divested of its jurisdiction to hear and decide
Maguindanao.[9] respondents petition for declaration of failure of elections after
petitioners had been proclaimed. NO

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 Page 15 of 48

RULING: paraphernalia; and in certain municipalities, while some

We deny the petition. semblance of voting was conducted on election day, there was
widespread fraudulent counting and/or counting under very
Petitioners submit that by virtue of their proclamation as irregular circumstances and/or tampering and manufacture of
winners, the only remedy left for private respondents is to file election returns which completely bastardized the sovereign
an election protest, in which case, original jurisdiction lies with will of the people. These illegal and fraudulent acts of
the regular courts. Petitioners cited several rulings that an desecration of the electoral process were perpetrated to favor
election protest is the proper remedy for a losing candidate and benefit respondents. These acts were, by and large,
after the proclamation of the winning candidate.[25] committed with the aid and/or direct participation of military
elements who were deployed to harass, intimidate or coerce
However, the authorities petitioners relied upon involved pre- voters and the supporters or constituents of herein petitioners,
proclamation controversies. In Loong v. Commission on principally, of re-electionist Governor Datu Zacaria Candao.
Elections,[26] we ruled that a pre-proclamation controversy is Military units and personnel visibly, openly and flagrantly
not the same as an action for annulment of election results, or violated election laws and regulations by escorting people or
failure of elections. These two remedies were more specifically elements engaged in the illegal, advanced preparation of
distinguished in this wise: ballots and election returns and, at times, manning the polling
places or precincts themselves and/or staying within the
While, however, the Comelec is restricted, in pre- prohibited radius. Ballot boxes and other election paraphernalia
proclamation cases, to an examination of the election were brought not to the precincts or voting centers concerned
returns on their face and is without jurisdiction to go but somewhere else where massive manufacture of ballots and
beyond or behind them and investigate election election documents were perpetrated.[32]
irregularities, the Comelec is duty bound to investigate
allegations of fraud, terrorism, violence, and other The Comelec en banc has the authority to annul election
analogous causes in actions for annulment of election results and/or declare a failure of elections.[33] Section 6 of
results or for declaration of failure of elections, as the the Omnibus Election Code further provides that:
Omnibus Election Code denominates the same. Thus, the
Comelec, in the case of actions for annulment of election Section 6. Failure of election.- If, on account of force
results or declaration of failure of elections, may conduct majeure, violence, terrorism, fraud, or other analogous
technical examination of election documents and compare causes the election in any polling place has not been held on
and analyze voters signatures and thumbprints in order to the date fixed, or had been suspended before the hour fixed
determine whether or not the elections had indeed been by law for the closing of the voting, or after the voting and
free, honest and clean.[27] during the preparation and the transmission of the election
returns or in the custody or canvass thereof, such election
The fact that a candidate proclaimed has assumed office does results in a failure to elect, and in any of such cases the
not deprive the Comelec of its authority to annul any canvass failure or suspension of election would affect the result of
and illegal proclamation.[28] In the case at bar, we cannot the election, the Commission shall, on the basis of a verified
assume that petitioners proclamation and assumption into petition by any interested party and after due notice and
office on June 30, 2001, was legal precisely because the hearing, call for the holding or continuation of the election
conduct by which the elections were held was put in issue by not held, suspended or which resulted in a failure to elect
respondents in their petition for annulment of election results but not later than thirty days after the cessation of the
and/or declaration of failure of elections. cause of such postponement or suspension of the election of
failure to elect.
Respondents allegation of massive fraud and terrorism that
attended the May 14, 2001 election in the affected Elucidating on the concept of failure of election, we held that:
municipalities cannot be taken lightly as to warrant the
dismissal of their petition by the Comelec on the simple pretext xxx before Comelec can act on a verified petition seeking to
that petitioners had been proclaimed winners. We are not declare a failure of election, two (2) conditions must concur:
unmindful of the fact that a pattern of conduct observed in past first, no voting has taken place in the precincts concerned on
elections has been the pernicious grab-the-proclamation- the date fixed by law or, even if there was voting, the election
prolong-the-protest slogan of some candidates or parties such nevertheless resulted in a failure to elect; and second, the votes
that even if the protestant wins, it becomes a mere pyrrhic cast would affect the result of the election. In Loong vs.
victory, i.e., a vindication when the term of office is about to Commission on Elections, this Court added that the cause of
expire or has expired. xxx We have but to reiterate the oft-cited such failure of election should have been any of the following:
rule that the validity of a proclamation may be challenged even force majeure, violence, terrorism, fraud or other analogous
after the irregularly proclaimed candidate has assumed cases.[34]
office.[29]
In another case, we ruled that while it may be true that election
Petitioners likewise rely on the case of Typoco, Jr. v. did take place, the irregularities that marred the counting of
Commission on Elections.[30] This Court held that Comelec votes and the canvassing of the election returns resulted in a
committed no grave abuse of discretion in dismissing a petition failure to elect.[35]
for declaration of failure of elections. However, we made a
pronouncement that the dismissal was proper since the In the case at bar, the Comelec is duty-bound to conduct an
allegations in the petition did not justify a declaration of failure investigation as to the veracity of respondents allegations of
of elections. Typocos relief was for Comelec to order a recount massive fraud and terrorism that attended the conduct of the
of the votes cast, on account of the falsified election returns, May 14, 2001 election. It is well to stress that the Comelec has
which is properly the subject of an election contest.[31] started conducting the technical examination on November 16,
2001. However, by an urgent motion for a temporary
Respondents petition for declaration of failure of elections, restraining order filed by petitioners, in virtue of which we
from which the present case arose, exhaustively alleged issued a temporary restraining order on November 20, 2001,
massive fraud and terrorism that, if proven, could warrant a the technical examination was held in abeyance until the
declaration of failure of elections. Thus: present. In order not to frustrate the ends of justice, we lift the
temporary restraining order and allow the technical
4.1. The elections in at least eight (8) other municipalities xxx examination to proceed with deliberate dispatch.
were completely sham and farcical. There was a total failure of
elections in these municipalities, in that in most of these WHEREFORE, the petition is hereby DISMISSED. The
municipalities, no actual voting was done by the real, temporary restraining order issued on November 20, 2001 is
legitimate voters on election day itself but voting was made DISSOLVED. The Commission on Elections is directed to
only by few persons who prepared in advance, and en masse, proceed with the hearing of the consolidated petitions and the
the ballots the day or the night before election and, in many technical examination as outlined in its September 27, 2001
precincts, there was completely no voting because of the non- order with deliberate dispatch. No costs.
delivery of ballot boxes, official ballots and other election

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SO ORDERED.
"In the matter of the Petition dated May 12, 1998 of Abdusakur
13. [G.R. No. 133676. April 14, 1999] Tan, Governor, Sulu, to suspend or stop counting of ballots
through automation (sic) machines for the following grounds,
TUPAY T. LOONG, petitioner, vs. COMMISSION ON quoted to wit
ELECTIONS and ABDUSAKUR TAN, respondents,
YUSOP JIKIRI, intervenor. '1.. The Election Returns for the Municipality of Pata, Province
DECISION of Sulu-District II do not reflect or reveal the mandate of the
PUNO, J.: voters:

In a bid to improve our elections, Congress enacted R.A. No. 'DISCUSSIONS

8436 on December 22, 1997 prescribing the adoption of an
automated election system. The new system was used in the 'That the watchers called the attention of our political leaders
May 11, 1998 regular elections held in the Autonomous and candidates regarding their discovery that the election
Region in Muslim Mindanao (ARMM) which includes the returns generated after the last ballots for a precinct is scanned
Province of Sulu. Atty. Jose Tolentino, Jr. headed the revealed that some candidates obtained zero votes, among
COMELEC Task Force to have administrative oversight of the others the Provincial Board Members, Mayor, Vice-Mayor,
elections in Sulu. and the councilors for the LAKAS-NUCD-UMDP;

FACTS: 'That the top ballot, however, reveals that the ballots contained
The voting in Sulu was relatively peaceful and orderly.[1] The votes for Anton Burahan, candidate for Municipal Mayor while
problem started during the automated counting of votes for the the Election Return shows zero vote;
local officials of Sulu at the Sulu State College. At about 6
a.m. of May 12, 1998, some election inspectors and watchers 'That further review of the Election Return reveals that John
informed Atty. Tolentino, Jr. of discrepancies between the Masillam, candidate for Mayor under the LAKAS-NUCD-
election returns and the votes cast for the mayoralty candidates UMDP-MNLF obtains (sic) 100% votes of the total number of
in the municipality of Pata. Some ballots picked at random by voters who actually voted;
Atty. Tolentino, Jr. confirmed that votes in favor of a
mayoralty candidate were not reflected in the printed election 'The foregoing discrepancies were likewise noted and
returns. He suspended the automated counting of ballots in confirmed by the chairmen, poll clerks and members of the
Pata and immediately communicated the problem to the Board of Election Inspectors (BEI) such as Rena Jawan,
technical experts of COMELEC and the suppliers of the Matanka Hajirul, Dulba Kadil, Teddy Mirajuli, Rainer Talcon,
automated machine. After consultations, the experts told him Mike Jupakal, Armina Akmad, Romulo Roldan and Lerma
that the problem was caused by the misalignment of the ovals Marawali to mention some;
opposite the names of candidates in the local ballots. They
found nothing wrong with the automated machines. The error 'The Pata incident can be confirmed by no less than Atty. Jose
was in the printing of the local ballots, as a consequence of Tolentino, Head, Task Force Sulu, whose attention was called
which, the automated machines failed to read them regarding the discrepancies;
correctly.[2]
'The foregoing is a clear evidence that the automated machine
At 12:30 p.m. of the same day, Atty. Tolentino, Jr. called for (scanner) cannot be relied upon as to truly reflect the contents
an emergency meeting of the local candidates and the military- of the ballots. If such happened in the Municipality of Pata, it
police officials overseeing the Sulu elections. Those who is very possible that the same is happening in the counting of
attended were the various candidates for governor, namely, votes in the other municipalities of this province. If this will
petitioner Tupay Loong, private respondent Abdusakur Tan, not be suspended or stopped, the use of automated machines
intervenor Yusop Jikiri and Kimar Tulawie. Also in attendance will serve as a vehicle to frustrate the will of the sovereign
were Brig. Gen. Edgardo Espinosa, AFP, Marine forces, people of Sulu;
Southern Philippines, Brig. Gen. Percival Subala, AFP, 3rd
Marine Brigade, Supt. Charlemagne Alejandrino, Provincial 'Wherefore, the foregoing premises considered and in the
Director, Sulu, PNP Command and congressional candidate interest of an honest and orderly election, it is respectfully
Bensandi Tulawie.[3] prayed of this Honorable Commission that an Order be issued
immediately suspending or stopping the use of the automated
The meeting discussed how the ballots in Pata should be machine (scanner) in the counting of votes for all the eighteen
counted in light of the misaligned ovals. There was lack of (18) municipalities in the Province of Sulu and in lieu thereof,
agreement. Those who recommended a shift to manual count to avoid delay, counting be done through the usual way known
were Brig. Generals Espinosa and Subala, PNP Director and tested by us.'
Alejandrino, gubernatorial candidates Tan and Tulawie and
congressional candidate Bensandi Tulawie. Those who insisted "While the commission does not agree with the conclusions
on an automated count were gubernatorial candidates Loong stated in the petition, and the failure of the machine to read the
and Jikiri. In view of their differences in opinion, Atty. votes may have been occasioned by other factors, a matter that
Tolentino, Jr. requested the parties to submit their written requires immediate investigation, but in the public interest, the
position papers.[4] Commission,

Reports that the automated counting of ballots in other 'RESOLVED to grant the Petition dated May 12, 1998 and to
municipalities in Sulu was not working well were received by Order that the counting of votes shall be done manually in the
the COMELEC Task Force. Local ballots in five (5) Municipality of PATA, the only place in Sulu where the
municipalities were rejected by the automated machines. These automated machine failed to read the ballots, subject to notice
municipalities were Talipao, Siasi, Tudanan, Tapul and Jolo. to all parties concerned."'
The ballots were rejected because they had the wrong sequence
code.[5] Before midnight of May 12,1998, Atty. Tolentino, Jr. was able
to send to the COMELEC en banc his report and
Private respondent Tan and Atty. Tolentino, Jr. sent separate recommendation, urging the use of the manual count in the
communications to the COMELEC en banc in Manila. Still, on entire Province of Sulu, viz:[8]
May 12, 1998, Tan requested for the suspension of the
automated counting of ballots throughout the Sulu province.[6] "The undersigned stopped the counting in the municipality of
On the same day, COMELEC issued Minute Resolution No. Pata since he discovered that votes for a candidate for mayor
98-1747 ordering a manual count but only in the municipality was credited in favor of the other candidate. Verification with
of Pata. The resolution reads:[7] the Sulu Technical Staff, including Pat Squires of ES & S,
reveals that the cause of the error is the way the ballot was
"x x x x x x x x x printed. Aside from misalignment of the ovals and use of codes
assigned to another municipality (which caused the rejection of

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 Page 17 of 48

all local ballots in one precinct in Talipao), error messages political tensions and imminent violence and bloodshed may
appeared on the screen although the actual condition of the not be prevented, as per report received, the MNLF forces are
ballots would have shown a different message. Because of readying their forces to surround the venue for automated
these, the undersigned directed that counting for all ballots in counting and canvassing in Sulu in order that the automation
Sulu be stopped to enable the Commission to determine the process will continue.
problem and rectify the same. It is submitted that stopping the
counting is more in consonance with the Commission's "Director Borra recommends, that while he supports Minute
mandate than proceeding with an automated but inaccurate Resolution No. 98-1747, implementation thereof shall be done
count. as follows:

"In view of the error discovered in Pata and the undersigned's "1. That all the counting machines from Jolo, Sulu be
order to suspend the counting, the following documents were transported back by C130 to Manila and be located at the
submitted to him. available space at PICC for purposes of both automated and
manual operations. This approach will keep the COMELEC
"1. Unsigned letter dated May 12, 1998 submitted by officials away from violence and bloodshed between the two
Congressman Tulawie for manual counting and canvassing; camps who are determined to slug each other as above
mentioned in Jolo, Sulu. Only authorized political party and
"2. Petition of Governor Sakur Tan for manual counting; candidate watchers will be allowed in PICC with proper
security, both inside and outside the perimeters of the venue at
"3. Position paper of Tupay Loong, Benjamin Loong and Asani PICC.
Tamang for automated count;
"2. With this process, there will be an objective analysis and
"4. MNLF Position for automated count; and supervision of the automated and manual operations by both
the MIS and Technical Expert of the ES & S away from the
"5. Recommendation of General E.V. Espinosa, General PM thundering mortars and the sounds of sophisticated heavy
Subala, and PD CS Alejandrino for manual count; weapons from both sides of the warring factions.

"Additional marines have been deployed at the SSC. The "3. Lastly, it will be directly under the close supervision and
undersigned is not sure if it is merely intended to tame a control of Commission on Elections En Banc.
disorderly crowd, inside and outside SSC, or a show of force.
"RESOLVED:
"It is submitted that since an error was discovered in a machine
which is supposed to have an error rate of 1: 1,000,000, not a "1. To transport all counting machines from Jolo, Sulu by
few people would believe that this error in Pata would extend C130 to Manila for purposes of both automated and manual
to the other municipalities. Whether or not this is true, it would operations, with notice to all parties concerned;
be more prudent to stay away from a lifeless thing that has
sown tension and anxiety among and between the voters of "2. To authorize the official travel of the board of canvassers
Sulu. concerned for the conduct of the automated and manual
operations of the counting of votes at PICC under the close
Respectfully submitted: supervision and control of the Commission En Banc. For this
12 May 1998 purpose, to make available a designated space at the PICC;
(Sgd.) JOSE M. TOLENTINO, JR."
"3. To authorize the presence of only the duly authorized
The next day, May 13, 1998, COMELEC issued Resolution representative of the political parties concerned and the
No. 98-1750 approving Atty. Tolentino, Jr.'s recommendation candidates watchers both outside and inside the perimeters of
and the manner of its implementation as suggested by the venue at PICC."
Executive Director Resurreccion Z. Borra. The Resolution
reads:[9] Atty. Tolentino, Jr. furnished the parties with copies of Minute
Resolution No. 98-1750 and called for another meeting the
"In the matter of the Memorandum dated 13 May 1998 of next day, May 14, 1998, to discuss the implementation of the
Executive Director Resurreccion Z. Borra, pertinent portion of resolution.[10] The meeting was attended by the parties, by Lt.
which is quoted as follows: Gen. Joselin Nazareno, then the Chief of the AFP Southern
Command, the NAMFREL, media, and the public. Especially
"In connection with Min. Res. No. 98-1747 promulgated May discussed was the manner of transporting the ballots and the
12, 1998 which resolved to order that the counting of votes counting machines to the PICC in Manila. They agreed to
shall be done manually in the municipality of Pata, the only allow each political party to have at least one (1) escort/
place in Sulu where the automated counting machine failed to watcher for every municipality to acompany the flight. Two
read the ballots, subject to notice to all parties concerned, C130s were used for the purpose.[11]
please find the following:
On May 15, 1998, the COMELEC en banc issued Minute
"1. Handwritten Memo of Director Jose M. Tolentino, Jr., Task Resolution No. 98-1796 laying down the rules for the manual
Force Head, Sulu, addressed to the Executive Director on the count, viz:[12]
subject counting and canvassing in the municipality of Pata
due to the errors of the counting of votes by the machine "In the matter of the Memorandum dated 15 May 1998 of
brought about by the error in the printing of the ballot, causing Executive Director Resurreccion Z. Borra, quoted to wit:
misalignment of ovals and use of codes assigned to another
municipality. 'In the implementation of COMELEC Min. Resolution No. 98-
1750 promulgated 13 May 1998 in the manual counting of
He recommended to revert to the manual counting of votes in votes of Pata, Sulu, and in view of the arrival of the counting
the whole of Sulu. He attached the stand of Congressman machines, ballot boxes, documents and other election
Tulawie, Governor Sakur Tan and recommendation of paraphernalia for the whole province of Sulu now stored in
Brigadier General Edgardo Espinosa, General Percival Subla, PICC, as well as the arrival of the Municipal Board of
P/Supt. Charlemagne Alejandrino for manual counting. The Canvassers of said Municipality in Sulu, and after conference
position paper of former Governor Tupay Loong, Mr. with some members of the Senior Staff and Technical
Benjamin Loong and Mr. Asani S. Tammang, who are Committee of this Commission, the following are hereby
candidates for Governor and Congressman of 1st and 2nd respectfully recommended:
Districts respectively, who wanted the continuation of the
automated counting. '1. Manual counting of the local ballots of the automated
election system in Pata, Sulu;
"While the forces of AFP are ready to provide arm (sic)
security to our Comelec officials, BEIs and other deputies, the

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'2. Automated counting of the national ballots considering that the 'parallel manual counting' ordained in the disputed minute
there are no questions raised on the National Elective Officials resolution."
as pre-printed in the mark-sensed ballots;
Nonetheless, COMELEC started the manual count on the same
'3. The creation of the following Special Boards of Inspectors date, May 18,1998.
under the supervision of Atty. Jose M. Tolentino, Jr., Task
Force Head, Sulu, namely: On May 25, 1998, petitioner filed with this Court a petition for
certiorari and prohibition under Rule 65 of the Rules of Court.
a) Atty. Mamasapunod M. Aguam He contended that: (a) COMELEC issued Minute Resolution
Ms. Gloria Fernandez Nos. 98-1747, 98-1750, and 98-1798 without prior notice and
Ms. Esperanza Nicolas hearing to him; (b) the order for manual counting violated R.A.
No. 8436; (c) manual counting gave "opportunity to the
b) Director Ester L. Villaflor-Roxas following election cheatings," namely:
Ms. Celia Romero
Ms. Rebecca Macaraya "(a) The counting by human hands of the tampered, fake and
counterfeit ballots which the counting machines have been
c) Atty. Zenaida S. Soriano programmed to reject (Section 7, 8 & 9 of Rep. Act 8436).
Ms. Jocelyn Guiang
Ma. Jacelyn Tan "(b) The opportunity to substitute the ballots all stored at the
PICC. In fact, no less than the head of the COMELEC Task
d) Atty. Erlinda C. Echavia Force of Sulu, Atty. Jose M. Tolentino, Jr. who recommended
Ms. Theresa A. Torralba to the COMELEC the anomalous manual counting, had
Ms. Ma. Carmen Llamas approached the watchers of petitioners to allow the retrieval of
the ballots, saying "tayo, tayo lang mga watchers, pag-usapan
e) Director Estrella P. de Mesa natin," dearly indicating overtures of possible bribery of the
Ms. Teresita Velasco watchers of petitioner (ANNEX E).
Ms. Nelly Jaena
"(c) With the creation by the COMELEC of only 22 Boards of
'4. Additional Special Board of Inspectors may be created Election Inspectors to manually count the 1,194 precincts, the
when necesary. manipulators are given sufficient time to change and tamper
the ballots to be manually counted.
'5. The Provincial Board of Canvassers which by standing
Resolution is headed by the Task Force Sulu Head shall "(d) There is the opportunity of delaying the proclamation of
consolidate the manual and automated results as submitted by the winning candidates through the usually dilatory moves in a
the Municipal Boards of Canvassers of the whole province pre-proclamation controversy because the returns and
with two members composed of Directors Estrella P. de Mesa certificates of canvass are already human (sic) made. In the
and Ester L. Villaflor-Roxas; automated counting there is no room for any dilatory pre-
proclamation controversy because the returns and the MBC
'6. The political parties and the candidates in Sulu as well as and PBC certificates of canvass are machine made and
the Party-List Candidates are authorized to appoint their own immediate proclamation is ordained thereafter."
watchers upon approval of the Commission',
Petitioner then prayed:
'RESOLVED to approve the foregoing recommendations in the
implementation of Min. Resolution No. 98-1750 promulgated "WHEREFORE, it is most especially prayed of the Honorable
on 13 May 1998 providing for the manual counting of votes in Court that:
the municipality of Pata, Sulu.
"1. upon filing of this petition, a temporary restraining order be
'RESOLVED, moreover, considering the recommendation of issued enjoining the COMELEC from conducting a manual
Comm. Manolo B. Gorospe, Commissioner-In-Charge, counting of the ballots of the 1,194 precincts of the 18
ARMM, to conduct a parallel manual counting on all 18 municipalities of the Province of Sulu but instead proceed with
municipalities of Sulu as a final guidance of the reliability of the automated counting of the ballots, preparation of the
the counting machine which will serve as basis for the election returns and MBC, PBC certificates of canvass and
proclamation of the winning candidates and for future proclaim the winning candidates on the basis of the automated
reference on the use of the automated counting machine."' counting and consolidation of results;

On May 18, 1998, petitioner filed his objection to Minute "2. this petition be given due course and the respondents be
Resolution No. 98-1796, viz:[13] required to answer;

"1. The minute resolution under agenda No. 98-1796 violates "3. after due hearing, the questioned COMELEC En Banc
the provisions of Republic Act No. 8436 providing for an Minute Resolutions of May 12, 13, 15, and 17, 1998 be all
automated counting of the ballots in the Autonomous Region declared null and void ab initio for having been issued without
in Muslim Mindanao. The automated counting is mandatory jurisdiction and/or with grave abuse of discretion amounting to
and could not be substituted by a manual counting. Where the lack of jurisdiction and for being in violation of due process of
machines are allegedly defective, the only remedy provided for law;
by law is to replace the machine. Manual counting is
prohibited by law; " 4. the winning candidates of the Province of Sulu be
proclaimed on the basis of the results of the automated
"2. There are strong indications that in the municipality of Pata counting, automated election returns, automated MBC and
the ballots of the said municipality were rejected by the PBC certificates of canvass;
counting machine because the ballots were tampered and/or the
texture of the ballots fed to the counting machine are not the "x x x."
official ballots of the Comelec;
On June 8, 1998, private respondent Tan was proclaimed
"3. The automated counting machines of the Comelec have governor- elect of Sulu on the basis of the manual count.[14]
been designed in such a way that only genuine official ballots Private respondent garnered 43,573 votes. Petitioner was third
could be read and counted by the machine; with 35,452 votes or a difference of 8,121 votes.

"4. The counting machines in the other municipalities are in On June 23, 1998, this Court required the respondents to file
order. In fact, the automated counting has already started. The their Comment to the petition and directed the parties "to
automated counting in the municipalities of Lugus and maintain the status quo prevailing at the time of the filing of
Panglima Tahil has been completed. There is no legal basis for

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the petition."[15] The vice-governor elect was allowed to Board of Election Inspectors and others that they voted for
temporarily discharge the powers and functions of governor. him. Another candidate garnered 100% of the votes.

On August 20, 1998, Yusop Jikiri, the LAKAS-NUCD- b. It is likewise conceded that the automated machines
UMDP-MNLF candidate for governor filed a motion for rejected and would not count the local ballots in the
intervention and a Memorandum in Intervention.[16] The municipalities of Talipao, Siasi, Indanan, Tapal and Jolo.
result of the manual count showed he received 38,993 votes
and placed second. Similarly, he alleged denial of due process, c. These flaws in the automated counting of local ballots in
lack of factual basis of the COMELEC resolutions and the municipalities of Pata, Talipao, Siasi, Indanan, Tapal
illegality of manual count in light of R.A. No. 8436. TheCourt and Jolo were carefully analyzed by the technical experts of
noted his intervention.[17] As similar petition for intervention COMELEC and the supplier of the automated machines.
filed by Abdulwahid Sahidulla, a candidate for vice-governor, All of them found nothing wrong with the automated
on October 7, 1998 was denied as it was filed too late. machines. They traced the problem to the printing of local
ballots by the National Printing Office. In the case of the
In due time, the parties filed their respective Comments. On municipality of Pata, it was discovered that the ovals of the
September 25, 1998, the Court heard the parties in oral local ballots were misaligned and could not be read
arguments[18] which was followed by the submission of their correctly by the automated machines. In the case of the
written memoranda. municipalities of Talipao, Siasi, Indanan, Tapal and Jolo, it
turned out that the local ballots contained the wrong
ISSUES: sequence code. Each municipality was assigned a sequence
1. Whether or not a petition for certiorari and prohibition under code as a security measure. Ballots with the wrong
Rule 65 of the Rules of Court is the appropriate remedy to sequence code were programmed to be rejected by the
invalidate the disputed COMELEC resolutions. automated machines.

2. Assuming the appropriateness of the remedy, whether or not It is plain that to continue with the automated count in these
COMELEC committed grave abuse of discretion amounting to five (5) municipalities would result in a grossly erroneous
lack of jurisdiction in ordering a manual count. count. It cannot also be gainsaid that the count in these five (5)
municipalities will affect the local elections in Sulu. There was
2.a. Is there a legal basis for the manual count? no need for more sampling of local ballots in these
municipalities as they suffered from the same defects. All local
2-b. Are its factual bases reasonable? ballots in Pata with misaligned ovals will be erroneously read
by the automated machines. Similarly, all local ballots in
2.c. Were the petitioner and the intervenor denied due process Talipao, Siasi, Indanan, Tapal and Jolo with wrong sequence
by the COMELEC when it ordered a manual count? codes are certain to be rejected by the automated machines.
There is no showing in the records that the local ballots in
3. Assuming the manual count is illegal and that its result is these five (5) municipalities are dissimilar which could justify
unreliable, whether or not it is proper to call for a special the call for their greater sampling.
election for the position of governor of Sulu.
Third. These failures of automated counting created post
We shall resolve the issues in seriatim. election tension in Sulu, a province with a history of violent
elections. COMELEC had to act decisively in view of the
RULING: fast deteriorating peace and order situation caused by the
First. We hold that certiorari is the proper remedy of the delay in the counting of votes. The evidence of this fragile
petitioner. Section 7, Article IX(A) of the 1987 Constitution peace and order cannot be downgraded. In his handwritten
states that if "unless provided by this Constitution or by report to the COMELEC dated May 12, 1998, Atty. Tolentino,
law, any decision, order or ruling of each Commission may Jr. stated:
be brought to the Supreme Court on certiorari by the
aggrieved party within thirty days from receipt of a copy "x x x
thereof." We have interpreted this provision to mean final
orders, rulings and decisions of the COMELEC rendered "Additional marines have been deployed at the SSC. The
in the exercise of its adjudicatory or quasi-judicial undersigned is not sure if it is merely intended to tame a
powers.[19] Contrariwise, administrative orders of the disorderly crowd inside and outside SSC, or a show of force.
COMELEC are not, as a general rule, fit subjects of a
petition for certiorari. The main issue in the case at bar is "It is submitted that since an error was discovered in a machine
whether the COMELEC gravely abused its discretion when which is supposed to have an error rate of 1:1,000,000, not a
it ordered a manual count of the 1998 Sulu local elections. few people would believe that this error in Pata would extend
A resolution of the issue will involve an interpretation of to the other municipalities. Whether or not this is true, it would
R.A. No. 8436 on automated election in relation to the be more prudent to stay away from a lifeless thing that has
broad power of the COMELEC under Section 2(1), Article sown tension and anxiety among and between the voters of
IX(C) of the Constitution "to enforce and administer all Sulu."
laws and regulations relative to the conduct of an election x
x x." The issue is not only legal but one of first impression Executive Director Resurreccion Z. Borra, Task Force Head,
and undoubtedly suffused with significance to the entire ARMM in his May 13,1998 Memorandum to the COMELEC
nation. It is adjudicatory of the right of the petitioner, the likewise stated:
private respondent and the intervenor to the position of
governor of Sulu. These are enough considerations to call "x x x
for an exercise of the certiorari jurisdiction of this Court.
"While the forces of AFP are ready to provide arm (sic)
Second. The big issue, one of first impression, is whether security to our COMELEC officials, BEI's and other deputies,
the COMELEC committed grave abuse of discretion the political tensions and imminent violence and bloodshed
amounting to lack of jurisdiction when it ordered a manual may not be prevented, as per report received, the MNLF forces
count in light of R.A. No. 8436. The post election realities are readying their forces to surround the venue for automated
on ground will show that the order for a manual count counting and canvassing in Sulu in order that automation
cannot be characterized as arbitrary, capricious or process will continue."
whimsical.
Last but not the least, the military and the police authorities
a. It is well established that the automated machines failed unanimously recommended manual counting to preserve peace
to read correctly the ballots in the municipality of Pata. A and order. Brig. Gen. Edgardo V. Espinosa, Commanding
mayoralty candidate, Mr. Anton Burahan, obtained zero General, Marine Forces Southern Philippines, Brig. Gen.
votes despite the representations of the Chairman of the Percival M. Subala, Commanding General, 3rd Marine
Brigade, and Supt. Charlemagne S. Alejandrino, Provincial

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Director, Sulu PNP Command explained that it "x x x will not discuss the process by which the will of the electorate could be
only serve the interest of majority of the political parties determined. Present during the meeting were:
involved in the electoral process but also serve the interest of
the military and police forces in maintaining peace and order 1. Brig. Gen. Edgardo Espinoza
throughout the province of Sulu." Marine Forces, Southern Philippines

An automated count of the local votes in Sulu would have 2. Brig. Gen. Percival Subala
resulted in a wrong count, a travesty of the sovereignty of the 3rd Marine Brigade
electorate. Its aftermath could have been a bloodbath.
COMELEC avoided this imminent probability by ordering a 3. Provincial Dir. Charlemagne Alejandrino
manual count of the votes. It would be the height of irony if the Sulu PNP Command
Court condemns COMELEC for aborting violence in the Sulu
elections. 4. Gubernatorial Candidate Tupay Loong
LAKAS-NUCD Loong Wing
Fourth. We also find that petitioner Loong and intervenor 5. Gubernatorial Candidate Abdusakur Tan
Jikiri were not denied due process. The Tolentino LAKAS-NUCD Tan Wing
memorandum clearly shows that they were given every
opportunity to oppose the manual count of the local ballots 6. Gubernatorial Candidate Yusop Jikiri
in Sulu. They were orally heard. They later submitted LAKAS-NUCD-MNLF Wing
written position papers. Their representatives escorted the
transfer of the ballots and the automated machines from 7. Gubernatorial Candidate Kimar Tulawie
Sulu to Manila. Their watchers observed the manual count LAMMP
from beginning to end. We quote the Tolentino
memorandum, viz: 8. Congressional Candidate Bensaudi Tulawie
LAMMP
"x x x
"During said meeting, all of the above parties verbally
"On or about 6:00 a.m. of May 12, 1998, while automated advanced their respective positions. Those in favor of a manual
counting of all the ballots for the province of Sulu was being count were:
conducted at the counting center located at the Sulu State
College, the COMELEC Sulu Task Force Head (TF Head) 1. Brig. Gen. Edgardo Espinoza
proceeded to the room where the counting machine assigned to
the municipality of Pata was installed to verify the cause of the 2. Brig. Gen. Percival Subala
commotion therein.
3. Provincial Dir. Charlemagne Alenjandrino
"During the interview conducted by the TF Head, the members
of the Board of Election Inspectors (BEI) and watchers present 4. Gubernatorial Candidate Abdusakur Tan
in said room stated that the counting machine assigned to the
municipality of Pata did not reflect the true results of the 5. Gubernatorial Candidate Kimar Tulawie
voting thereat. The members of the BEI complained that their
votes were not reflected in the printout of the election returns 6. Congressional Candidate Bensaudi Tulawie and those in
since per election returns of their precincts, the candidate they favor of an automated count were:
voted for obtained "zero". After verifying the printout of some
election returns as against the official ballots, the TF Head 1. Gubernatorial Candidate Tupay Loong
discovered that votes cast in favor of a mayoralty candidate
were credited in favor of his opponents. 2. Gubernatorial Candidate Yusop Jikiri

"In his attempt to remedy the situation, the TF Head suspended "Said parties were then requested by the TF Head to submit
the counting of all ballots for said municipality to enable their respective position papers so that the same may be
COMELEC field technicians to determine the cause of the forwarded to the Commission en banc, together with the
technical error, rectify the same, and thereafter proceed with recommendations of the TF Head.
automated counting. In the meantime, the counting of the
ballots for the other municipalities proceeded under the 'The TF Head returned to the counting center at the Sulu State
automated system. College and called his technical staff to determine the extent of
the technical error and to enable him to submit the appropriate
"Technical experts of the supplier based in Manila were recommendation to the Commission en banc.
informed of the problem and after numerous consultations
through long distance calls, the technical experts concluded "Upon consultation with the technical staff, it was discovered
that the cause of the error was in the manner the ballots for that in the Municipality of Talipao, some of the local ballots
local positions were printed by the National Printing Office were rejected by the machine. Verification showed that while
(NPO), namely, that the ovals opposite the names of the the ballots were genuine, ballot paper bearing a wrong
candidates were not properly aligned. As regards the ballots for "sequence code" was used by the NPO during the printing
national positions, no error was found. process.

"Since the problem was not machine-related, it was obvious "Briefly, the following is the manner by which a sequence
that the use of counting machines from other municipalities to code" determined genuineness of a ballot. A municipality is
count the ballots of the municipality of Pata would still result assigned a specific machine (except for Jolo, which was
in the same erroneous count. Thus, it was found necessary to assigned two (2) machines, and sharing of one (1) machine by
determine the extent of the error in the ballot printing process two (2) municipalities, namely, H.P. Tahil and Maimbung,
before proceeding with the automated counting. Pandami and K. Caluang, Pata and Tongkil and Panamao and
Lugus). A machine is then assigned a specific "sequence code"
"To avoid a situation where proceeding with automation will as one of the security features to detect whether the ballots
result in an erroneous count, the TF Head, on or about 11:45 passing through it are genuine. Since a counting machine is
a.m. ordered the suspension of the counting of all ballots in the programmed to read the specific "sequence code" assigned to
province to enable him to call a meeting with the heads of the it, ballots which bear a "sequence code" assigned to another
political parties which fielded candidates in the province, machine/municipality, even if said ballots were genuine, will
inform them of the technical error, and find solutions to the be rejected by the machine.
problem.
"Other municipalities, such as Siasi, Indanan, Tapul and Jolo
"On or about 12:30 p.m., the TF Head presided over a also had the same problem of rejected ballots. However, since
conference at Camp General Bautista (3rd Marine Brigade) to the machine operators were not aware that one of the reasons

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for rejection of ballots is the use of wrong "sequence code", "Two C130s left Sulu on May 15, 1998 to transport all the
they failed to determine whether the cause for rejection of ballot boxes and counting machines, accompanied by all the
ballots for said municipalities was the same as that for the authorized escorts. Said ballots boxes reached the PICC on the
municipality of Talipao. same day, with all the escorts/watchers allowed to station
themselves at the ballot box storage area. On May 17, 1998,
"In the case of 'misaligned ovals', the counting machine will another C130 left Sulu to ferry the members of the board of
not reject the ballot because all the security features, such as canvassers."
"sequence code", are present in the ballot, however, since the
oval is misaligned or not placed in its proper position, the Fifth. The evidence is clear that the integrity of the local
machine will credit the shaded oval for the position where the ballots was safeguarded when they were transferred from
machine is programmed to "read" the oval. Thus, instead of Sulu to Manila and when they were manually counted.
rejecting the ballot, the machine will credit the votes of a
candidate in favor of his opponent, or in the adjacent space As shown by the Tolentino memorandum, representatives of
where the oval should be properly placed. the political parties escorted the transfer of ballots from Sulu to
PICC. Indeed, in his May 14, 1992 letter to Atty. Tolentino, Jr.,
"It could not be determined if the other municipalities also had petitioner Tupay Loong himself submitted the names of his
the same technical error in their official ballots since the representatives who would accompany the ballot boxes and
"misaligned ovals" were discovered only after members of the other election paraphernalia, viz:[20]
Board of Election Inspectors of the Municipality of Pata
complained that their votes were not reflected in the printout of "Dear Atty. Tolentino:
the election returns.
"Submitted herewith are the names of escort(s) to accompany
"As the extent or coverage of the technical errors could not be the ballot boxes and other election pharaphernalia to be
determined, the TF Head, upon consultation with his technical transported to COMELEC, Manila, to wit:
staff, was of the belief that it would be more prudent to count
the ballots manually than to proceed with an automated system 1. Jolo - Joseph Lu
which will result in an erroneous count. 2. Patikul - Fathie B. Loong
3. Indanan - - Dixon Jadi
"The TF Head thus ordered the indefinite suspension of 4. Siasi - Jamal Ismael
counting of ballots until such time as the Commission shall 5. K. Kaluang - Enjimar Abam
have resolved the petition/position papers to be submitted by 6. Pata - Marvin Hassan
the parties. The TF Head and his staff returned to Camp 7. Parang - Siyang Loong
General Bautista to await the submission of the position papers 8. Pangutaran - Hji. Nasser Loong
of the parties concerned. 9. Marunggas - Taib Mangkabong
10. Luuk - Jun Arbison
"Upon receipt of the position papers of the parties, the TF 11. Pandami - Orkan Osman
Head faxed the same in the evening of May 12, 1998, together 12. Tongkil - Usman Sahidulla
with his handwritten recommendation to proceed with a 13. Tapul - Alphawanis Tupay
manual count." Attached are copies of the recommendations of 14. Lugus - Patta Alih
the TF Head (Annex "1"), and the position papers of the 15. Maimbong - Mike Bangahan
Philippine Marines and Philippine National Police (Annex 16. P. Estino - Yasir lbba
"2"), LAKAS-NUCD Tan Wing Annex (Annex "3"), Lakas- 17. Panamao - Hamba Loong
NUCD Loong Wing (Annex "4"), LAKAS-NUCD-MNLF 18. Talipao - Ismael Sali
Wing (Annex "5") and LAMMP (Annex "6"). Said
recommendations and position papers were the bases for the "Hoping for your kind and (sic) consideration for approval on
promulgation of COMELEC Minute Resolution No. 98-1750 this matter.
dated May 13, 1998 (Annex "7"), directing among other things,
that the ballots and counting machines be transported by C130 "Thank you.
to Manila for both automated and manual operations.
Very truly yours,
"Minute Resolution No. 98-1750 was received by the TF Head
through fax on or about 5:30 in the evening of May 13, 1998. (Sgd.) Tupay T. Loong
Copies were then served through personal delivery to the heads
of the political parties, with notice to them that another (Sgd.) Asani S. Tammang"
conference will be conducted at the 3rd Marine Brigade on
May 14, 1998 at 9:00 o'clock in the morning, this time, with The ballot boxes were consistently under the watchful eyes of
Lt. General Joselin Nazareno, then AFP Commander, Southern the parties' representatives. They were placed in an open space
Command. Attached is a copy of said notice (Annex "8") at the PICC. The watchers stationed themselves some five (5)
bearing the signatures of candidates Tan (Annex "8-A") and meters away from the ballot boxes. They watched 24 hours a
Loong (Annex "8-B"), and the representatives of candidates day and slept at the PICC.[21]
Tulawie (Annex "8-C") and Jikiri (Annex "8-D").
The parties' watchers again accompanied the transfer of the
"On May 14, 1998, the TF Head presided over said conference ballot boxes from PICC to the public schools of Pasay City
in the presence of the heads of the political parties of Sulu, where the ballots were counted. After the counting they once
together with their counsel, including Lt. Gen. Nazareno, Brig. more escorted the return of the ballot boxes to PICC.[22]
Gen. Subala, representatives of the NAMFREL, media and the
public. In fine, petitioner's charge that the ballots could have been
tampered with before the manual counting is totally
"After hearing the sides of all parties concerned, including that unfounded.
of NAMFREL, the procedure by which the ballots and
counting machines were to be transported to Manila was Sixth. The evidence also reveals that the result of the
finalized, with each political party authorized to send at least manual count is reliable.
one (1) escort/watcher for every municipality to accompany the
ballot boxes and counting machines from the counting center at It bears stressing that the ballots used in the case at bar were
the Sulu State College to the Sulu Airport up to the PICC, specially made to suit an automated election. The ballots were
where the COMELEC was then conducting its Senatorial uncomplicated. They had fairly large ovals opposite the names
Canvass. There being four parties, a total of seventy-two (72) of candidates. A voter needed only to check the oval opposite
escorts/watchers accompanied the ballots and counting the name of his candidate. When the COMELEC ordered a
machines. manual count of the votes, it issued special rules as the
counting involved a different kind of ballot, albeit, more
simple ballots. The Omnibus Election Code rules on

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appreciation of ballots cannot apply for they only apply to '6. Return all pertinent election documents and paraphernalia
elections where the names of candidates are handwritten in the inside the ballot box.
ballots. The rules were spelled out in Minute Resolution 98-
1798, viz:[23] 'III. Consolidation of Results

"In the matter of the Memorandum dated 17 May 1998 of 'A. National Ballots
Executive Director Resurreccion Z. Borra, re procedure of the
counting of votes for Sulu for the convening of the Board of '1. The results of the counting for the national ballots for each
Election Inspectors, the Municipal Board of Canvassers and municipality shall be consolidated by using the ERs of the
the Provincial Board of Canvassers on May 18, 1998 at 9:00 automated election system;
a.m. at the Philippine International Convention Center (PICC),
'2. After the consolidation, the Machine Operator shall print the
'RESOLVED to approve the following procedure for the certificate of canvass by municipality and statement of votes
counting of votes for Sulu at the PICC: by precinct;

'I. Common Provisions: '3. To consolidate the provincial results, the MO shall load all
the diskettes used in the scanner to the ERs;
'1. Open the ballot box, retrieve the Minutes of Voting and the
uncounted ballots or the envelope containing the counted '4. The MO shall print the provincial certificate of canvass and
ballots as the case may be; the SOV by municipality;

'2. Segregate the national ballots from the local ballots; '5. In case there is system failure in the counting and/or
consolidation of the results, the POBC/MOBC shall revert to
'3. Count the number of pieces of both the national and local manual consolidation.
ballots and compare the same with the number of votes who
actually voted as stated in the Minutes of Voting: 'B. Local Ballots

- If there is no Minutes of Voting, refer to the Voting Records '1. - The consolidation of votes shall be done manually by the
at the back of the VRRs to determine the number of voters who Provincial/Municipal Board of Canvassers;
actually voted.
'2. The proclamation of winning candidates shall be based on
- If there are more ballots than the number of voters who the manual consolidation.
actually voted, the poll clerk shall draw out as many local and
national ballots as may be equal to the excess and place them 'RESOLVED, moreover, that the pertinent provisions of
in the envelope for excess ballots. COMELEC Resolution Nos. 2971 and 3030 shall apply.

'II Counting of Votes 'Let the Executive Director implement this resolution."'

'A. National Ballots: As aforestated, five (5) Special Boards were initially created
under Atty. Tolentino, Jr. to undertake the manual
'1. If the national ballots have already been counted, return the counting,[24] viz:
same inside the envelope for counted ballots, reseal and place
the envelope inside the ballot box; "a) Atty. Mamasapunod M. Aguam
Ms. Gloria Fernandez
'2. If the national ballots have not yet been counted, place them Ms. Esperanza Nicolas
inside an envelope and give the envelope through a liaison
officer to the machine operator concerned for counting and b) Director Ester L. Villaflor-Roxas
printing of the election returns; Ms. Celia Romero
Ms. Rebecca Macaraya
'3. The machine operator shall affix his signature and
thumbmark thereon, and return the same to the members of the c) Atty. Zenaida S. Soriano
BEI concerned for their signatures and thumbmarks; Ms. Jocelyn Guiang
Ma. Jocelyn Tan
'4. The said returns shall then be placed in corresponding
envelopes for distribution; d) Atty. Erlinda C. Echavia
Ms. Teresa A. Torralba
'B. Local Ballots: Ms. Ma. Carmen Llamas

'1. Group the local ballots in piles of fifty (50); e) Director Estrella P. de Mesa
Ms. Teresita Velasco
'2. The Chairman shall read the votes while the poll clerk and Ms. Nelly Jaena"
the third member shall simultaneously accomplish the election
returns and the tally board respectively. Later, the COMELEC utilized the services of 600 public
school teachers from Pasay City to do the manual counting.
'If the voters shaded more ovals than the number of positions to Five (5) elementary schools served as the venues of the
be voted for, no vote shall be counted in favor of any counting, viz:[25]
candidate.
"1. Gotamco Elementary School, Gotamco Street, Pasay City -
'3. After all the local ballots shall have been manually counted, for the municipalities of Indanan, Pangutaran, Panglima Tahil,
the same shall be given to the machine operator concerned for Maimbung;
counting by the scanning machine. The machine operator shall
then save the results in a diskette and print out the election "2. Zamora Elementary School, Zamora Street, Pasay City - for
returns for COMELEC reference. the municipalities of Jolo, Talipao, Panglima Estino, and
Tapul;
'4. The BEI shall accomplish the certification portion of the
election returns and announce the results; "3. Epifanio Elementary School, Tramo Street, Pasay City - for
the municipalities of Parang, Lugus, Panamao;
'5. Place the election returns in their respective envelopes and
distribute them accordingly; "4. Burgos Elementary School, Burgos Street, Pasay City - for
the municipalities of Luuk and Tongkil;

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5. Palma Elementary School - for the municipalities of Siasi COMELEC the broad power "to enforce and administer
and Kalingalang Caluang." all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum and recall."
From beginning to end, the manual counting was done with the Undoubtedly, the text and intent of this provision is to have
watchers of the parties concerned in attendance. Thereafter, the COMELEC all the necessary and incidental powers for it
certificates of canvass were prepared and signed by the to achieve the objective of holding free, orderly, honest,
City/Municipal Board of Canvassers composed of the peaceful, and credible elections. Congruent to this intent,
Chairman, Vice-Chairman, and Secretary. They were also this Court has not been niggardly in defining the
signed by the parties' watchers.[26] parameters of powers of COMELEC in the conduct of our
elections. Thus, we held in Sumulong v. COMELEC:[28]
The correctness of the manual count cannot therefore be
doubted. There was no need for an expert to count the votes. "Politics is a practical matter, and political questions must be
The naked eye could see the checkmarks opposite the big dealt with realistically - not from the standpoint of pure theory.
ovals. Indeed, nobody complained that the votes could not be The Commission on Elections, because of its fact-finding
read and counted. The COMELEC representatives had no facilities, its contacts with political strategists, and its
difficulty counting the votes. The 600 public school teachers of knowledge derived from actual experience in dealing with
Pasay City had no difficulty. The watchers of the parties had political controversies, is in a peculiarly advantageous position
no difficulty. Petitioner did not object to the rules on manual to decide complex political questions x x x. There are no ready
count on the ground that the ballots cannot be manually made formulas for solving public problems. Time and
counted. Indeed, in his original Petition, petitioner did not experience are necessary to evolve patterns that will serve the
complain that the local ballots could not be counted by a ends of good government. In the matter of the administration
layman. Neither did the intervenor complain in his petition for of laws relative to the conduct of election, x x x we must not
intervention. The allegation that it will take a trained eye to by any excessive zeal take away from the Commission on
read the ballots is more imagined than real. Elections the initiative which by constitutional and legal
mandates properly belongs to it."
This is not all. As private respondent Tan alleged, the manual
count could not have been manipulated in his favor because the In the case at bar, the COMELEC order for a manual count
results show that most of his political opponents won. Thus, was not only reasonable. It was the only way to count the
"the official results show that the two congressional seats in decisive local votes in the six (6) municipalities of Pata,
Sulu were won by Congressman Hussin Amin of the LAKAS- Talipao, Siasi, Tudanan, Tapul and Jolo. The bottom line is
MNLF Wing for the 1st District and Congressman Asani that by means of the manual count, the will of the voters of
Tammang of the LAKAS-Loong Wing for the 2nd District. In Sulu was honestly determined. We cannot kick away the will
the provincial level, of the eight (8) seats for the Sangguniang of the people by giving a literal interpretation to R.A. 8436.
Panlalawigan, two (2) were won by the camp of respondent R.A. 8436 did not prohibit manual counting when machine
Tan; three (3) by the camp of petitioner Loong; two (2) by the count does not work. Counting is part and parcel of the conduct
MNLF; and one (1) by LAMMP. In the mayoral race, seven of an election which is under the control and supervision of the
(7) out of eighteen (18) victorious municipal mayors were COMELEC. It ought to be self-evident that the Constitution
identified with respondent Tan; four (4) with petitioner Loong; did not envision a COMELEC that cannot count the result of
three (3) with the MNLF; two (2) with LAMMP and one (1) an election.
with REPORMA."[27] There is logic to private respondent
Tan's contention that if the manual count was tampered, his Ninth. Our elections are not conducted under laboratory
candidates would not have miserably lost. conditions. In running for public offices, candidates do not
follow the rules of Emily Post. Too often, COMELEC has
Seventh. We further hold that petitioner cannot insist on to make snap judgments to meet unforseen circumstances
automated counting under R.A. No. 8436 after the that threaten to subvert the will of our voters. In the
machines misread or rejected the local ballots in five (5) process, the actions of COMELEC may not be impeccable,
municipalities in Sulu. Section 9 of R.A. No. 8436 provides: indeed, may even be debatable. We cannot, however,
engage in a swivel chair criticism of these actions often
"SEC. 9. Systems Breakdown in the Counting Center. In taken under very difficult circumstances. Even more, we
the event of a systems breakdown of all assigned machines cannot order a special election unless demanded by
in the counting center, the Commission shall use any exceptional circumstances. Thus, the plea for this Court to
available machine or any component thereof from another call a special election for the governorship of Sulu is
city/municipality upon approval of the Commission En completely off-line. The plea can only be grounded on
Banc or any of its divisions. failure of election. Section 6 of the Omnibus Election Code
tells us when there is a failure of election, viz:
The transfer of such machines or any component thereof shall
be undertaken in the presence of representatives of political "Sec. 6. Failure of election. - If on account of force majeure,
parties and citizens' arm of the Commission who shall be terrorism, fraud, or other analogous causes, the election in
notified by the election officer of such transfer. any polling place has not been held on the date fixed, or
had been suspended before the hour fixed by law for the
There is a systems breakdown in the counting center when the closing of the voting, or after the voting and during the
machine fails to read the ballots or fails to store/save results or preparation and the transmission of the election returns or
fails to print the results after it has read the ballots; or when the in the custody or canvass thereof, such election results in a
computer fails to consolidate election results/reports or fails to failure to elect, and in any of such cases the failure or
print election results/reports after consolidation." suspension of election would affect the result of the election,
the Commission shall on the basis of a verified petition by
As the facts show, it was inutile for the COMELEC to use any interested party and after due notice and hearing, call
other machines to count the local votes in Sulu. The errors in for the holding or continuation of the election, not held,
counting were due to the misprinting of ovals and the use of suspended or which resulted in a failure to elect but not
wrong sequence codes in the local ballots. The errors were not later than thirty days after the cessation of the cause of
machine-related. Needless to state, to grant petitioner's prayer such postponement or suspension of the election or failure
to continue the machine count of the local ballots will certainly to elect."
result in an erroneous count and subvert the will of the
electorate. To begin with, the plea for a special election must be addressed
to the COMELEC and not to this Court. Section 6 of the
Eighth. In enacting R.A. No. 8436, Congress obviously Omnibus Election Code should be read in relation to Section 4
failed to provide a remedy where the error in counting is of R.A. No. 7166 which provides:
not machine-related for human foresight is not all-seeing.
We hold, however, that the vacuum in the law cannot "Sec. 4. Postponement, Failure of Election and Special
prevent the COMELEC from levitating above the problem. Elections. - The postponement, declaration of failure of
Section 2(1) of Article IX(C) of the Constitution gives the elections and the calling of special elections as provided in

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Sections 5, 6, and 7 of the Omnibus Election Code shall be

decided by the Commission en banc by a majority vote of xxx
its members. The causes for the declaration of a failure of
election may occur before or after casting of votes or on the 'The purpose of the Revised Election Code is to protect the
day of the election." integrity of elections and to suppress all evils that may violate
its purity and defeat the will of the voters. The purity of the
The grounds for failure of election - force majeure, terrorism, elections is one of the most fundamental requisites of popular
fraud or other analogous causes - clearly involve questions of government. The Commission on Elections, by constitutional
fact. It is for this reason that they can only be determined by mandate, must do everything in its power to secure a fair and
the COMELEC en banc after due notice and hearing to the honest canvass of the votes cast in the elections. In the
parties. In the case at bar, petitioner never asked the performance of its duties, the Commission must be given a
COMILEC en banc to call for a special election in Sulu. Even considerable latitude in adopting means and methods that will
in his original petition with this Court, petitioner did not pray insure the accomplishment of the great objective for which it
for a special election. His plea for a special election is a mere was created -- to promote free, orderly, and honest elections.
afterthought. Too late in the day and too unprocedural. Worse, The choice of means taken by the Commission on Elections,
the grounds for failure of election are inexistent. The records unless they are clearly illegal or constitute grave abuse of
show that the voters of Sulu were able to cast their votes freely discretion, should not be interfered with."
and fairly. Their votes were counted correctly, albeit manually.
The people have spoken. Their sovereign will has to be In Pacis vs. COMELEC,[34] we reiterated the guiding
obeyed. principle that "clean elections control the appropriateness of
the remedy." The dissent, for all its depth, is out of step with
There is another reason why a special election cannot be this movement. It condemns the COMELEC for exercising its
ordered by this Court. To hold a special election only for the discretion to resort to manual count when this was its only
position of Governor will be discriminatory and will violate the viable alternative. It would set aside the results of the manual
right of private respondent to equal protection of the law. The count even when the results are free from fraud and
records show that all elected officials in Sulu have been irregularity. Worse, it would set aside the judgment of the
proclaimed and are now discharging their powers and duties. people electing the private respondent as Governor. Upholding
Thus, two (2) congressmen, a vice-governor, eight (8) the sovereignty of the people is what democracy is all about.
members of the Sangguniang Panlalawigan and eighteen (18) When the sovereignty of the people expressed thru the ballot is
mayors, numerous vice-mayors and municipal councilors are at stake, it is not enough for this Court to make a statement but
now serving in their official capacities. These officials were it should do everything to have that sovereignty obeyed by all.
proclaimed on the basis of the same manually counted votes of Well done is always better than well said.
Sulu. If manual counting is illegal, their assumption of office
cannot also be countenanced. Private respondent's election IN VIEW WHEREOF, the petition of Tupay Loong and the
cannot be singled out as invalid for alikes cannot be treated petition in intervention of Yusop Jikiri are dismissed, there
unalikes. being no showing that public respondent gravely abused its
discretion in issuing Minute Resolution Nos. 98-1748, 98-
A final word. Our decision merely reinforces our collective 1750, 98-1796 and 98-1798. Our status quo order of June 23,
efforts to endow COMELEC with enough power to hold free, 1998 is lifted. No costs.
honest, orderly and credible elections. A quick flashback of its
history is necessary lest our efforts be lost in the labyrinth of SO ORDERED.
time.
15. [G.R. No. 120140. August 21, 1996]
The COMELEC was organized under Commonwealth Act No.
607 enacted on August 22,1940. The power to enforce our BENJAMIN U. BORJA, JR., petitioner, vs.
election laws was originally vested in the President and COMMISSION ON ELECTIONS, PATEROS
exercised through the Department of Interior. According to MUNICIPAL BOARD OF CANVASSERS and JOSE T.
Dean Sinco,[29] the view ultimately emerged that an CAPCO, JR., respondents.
independent body could better protect the right of suffrage of DECISION
our people. Hence, the enforcement of our election laws, while ROMERO, J.:
an executive power, was transferred to the COMELEC.
FACTS:
From a statutory creation, the COMELEC was transformed to a Petitioner Benjamin U. Borja, Jr. questions the authority of
constitutional body by virtue of the 1940 amendments to the respondent Commission on Elections en banc to hear and
1935 Constitution which took effect on December 2, 1940. decide at the first instance a petition seeking to declare a
COMELEC was generously granted the power to "have failure of election without the benefit of prior notice and
exclusive charge of the enforcement and administration of all hearing.
laws relative to the conduct of elections x x x."[30]
During the May 8, 1995 elections, Borja and private
Then came the 1973 Constitution. It further broadened the respondent Jose T. Capco vied for the position of Mayor of the
powers of COMELEC by making it the sole Judge of all Municipality of Pateros which was won by Capco by a margin
election contests relating to the election, returns and of 6,330 votes. Capco was consequently proclaimed and has
qualifications of members of the national legislature and since been serving as Mayor of Pateros.
elective provincial and city officials.[31] In fine, the
COMELEC was given judicial power aside from its traditional Alleging lack of notice of the date and time of canvass, fraud,
administrative and executive functions. violence, terrorism and analogous causes, such as
disenfranchisement of voters, presence of flying voters, and
The 1987 Constitution quickened this trend of strengthening unqualified members of the Board of Election Inspectors,
the COMELEC. Today, COMLEC enforces and administers all Borja filed before the COMELEC a petition to declare a failure
laws and regulations relative to the conduct of elections, of election and to nullify the canvass and proclamation made
plebiscites, initiatives, referenda and recalls. Election contests by the Pateros Board of Canvassers.
involving regional, provincial and city elective officials are
under its exclusive original jurisdiction. All contests involving Concluding that the grounds relied upon by Borja were
elective municipal and barangay officials are under its warranted only in an election contest, the COMELEC en banc
appellate jurisdiction.[32] dismissed the petition in its resolution dated May 25, 1995. It
declared that forced majeure, violence, terrorism, fraud and
Our decisions have been in cadence with the movement other analogous causes . . . are merely the causes which may
towards empowering the COMELEC in order that it can more give rise to the grounds to declare failure of elections. These
effectively perform its duty of safeguarding the sanctity of our grounds, which include (a) no election held on the designated
elections. In Cauton vs. COMELEC,[33] we laid down this election date; (b) suspension of election before the hour fixed
liberal approach, viz:

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by law for the closing of voting; and (c) election in any polling the Commission shall, on the basis of a verified petition by
place resulted in a failure to elect, were not present in Borjas any interested party and after due notice, and hearing, call
petition. for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect on a date
ISSUE: reasonably close to the date of the election not held,
Aggrieved by said resolution, petitioner elevated the matter to suspended or which resulted in a failure to elect but not
this Court, arguing the same matters while claiming that the later than thirty days after the cessation of the cause of
COMELEC committed grave abuse of discretion in issuing the such postponement or suspension of the election or failure
questioned resolution of May 25, 1995. He avers that the to elect.
COMELEC en banc does not have the power to hear and
decide the merits of the petition he filed below because under The same provisions are reiterated under Section 2, Rule 26 of
Article IX-C, Section 3 of the Constitution, all election cases, the Revised COMELEC Rules. In other words, the COMELEC
including pre-proclamation controversies, shall be heard and can call for the holding or continuation of election by reason of
decided in division, provided that motions for reconsideration failure of election only when the election is not held, is
of decision shall be decided by the Commission en banc. suspended or results in a failure to elect. The latter phrase, in
turn, must be understood in its literal sense, which is nobody
RULING: was elected. None of these circumstances is present in the case
After a careful scrutiny of petitioners arguments, this Court at bar. At best, the grounds cited by Borja are simply events
finds the same to be untenable. The petition must inevitably be which give rise to the three consequences just mentioned.
dismissed.
In reality, Borjas petition was nothing but a simple election
In order to resolve the threshold issue formulated at the outset, protest involving an elective municipal position which, under
there must first be a determination as to whether a petition to Section 251 of the Election Code, falls within the exclusive
declare a failure of election qualifies as an election case or a original jurisdiction of the appropriate Regional Trial Court.
pre-proclamation controversy. If it does, the Constitution Section 251 states:
mandates that it be heard and adjudged by the COMELEC
through any of its Divisions. The COMELEC en banc is only Section 251. Election contests for municipal offices. A
empowered to resolve motions for reconsideration of cases sworn petition contesting the election of a municipal officer
decided by a Division for Article IX-C, Section 3 of the shall be filed with the proper regional trial court by any
Constitution expressly provides: candidate who has duly filed a certificate of candidacy and
has been voted for the same office, within ten days after
SEC 3. The Commission on Elections may sit en banc or in proclamation of the results of the election. (Italics supplied)
two divisions, and shall promulgate its rules of procedure
in order to expedite disposition of election cases, including The COMELEC in turn exercises appellate jurisdiction over
pre-proclamation controversies. All such election cases the trial courts decision pursuant to Article IX-C, Section 2(2)
shall be heard and decided in division, provided that of the Constitution which states:
motions for reconsideration shall be decided by the
Commission en banc. Sec. 2. The Commission on Elections shall exercise the
following powers and functions:
In the case at bar, no one, much less the COMELEC, is
disputing the mandate of the aforequoted Article IX-C, Section xxx xxx xxx
3 of the Constitution. As Borja himself maintained, the
soundness of this provision has already been affirmed by the (2) Exercise exclusive original jurisdiction over all contests
Supreme Court in a number of cases, albeit with some relating to the elections, returns, and qualifications of all
dissent.[1] In Ong, the Court declared that if a case raises pre- elective regional, provincial, and city officials, and
proclamation issues, the COMELEC, sitting en banc, has no appellate jurisdiction over all contests involving elective
original jurisdiction over the same. Accordingly, said case municipal officials decided by trial courts of general
should be remanded to the COMELEC which, in turn, will jurisdiction, or involving elective barangay officials decided
refer the same to any of its Divisions for proper disposition. by trial courts of limited jurisdiction.

A petition to declare a failure of election is neither a pre- Decisions, final orders, or rulings of the Commission on
proclamation controversy as classified under Section 5(h), election contests involving elective municipal and barangay
Rule 1 of the Revised COMELEC Rules of Procedure, nor offices shall be final, executory, and not appealable.
an election case.
The COMELEC, therefore, had no choice but to dismiss Borjas
It must be remembered that Capco was duly elected and petition, not only for being deficient in form but also for
proclaimed as Mayor of Pateros. Such proclamation enjoys the having been filed before the wrong tribunal. This reason need
presumption of regularity and validity.[2] To destroy the not even be stated in the body of the decision as the same is
presumption, Borja must convincingly show that his opponents patent on the face of the pleading itself. Nor can Borja claim
victory was procured through extra-legal means. This he tried that he was denied due process because when the COMELEC
to do by alleging matters in his petition which he thought en banc reviewed and evaluated his petition, the same was
constituted failure of election, such as lack of notice of the date tantamount to a fair hearing of his case. The fact that Capco
and time of canvass; fraud, violence, terrorism and analogous was not even ordered to rebut the allegations therein certainly
causes; disenfranchisement of voters; presence of flying voters; did not deprive him of his day in court. If anybody here was
and unqualified members of the Board of Election Inspectors. aggrieved by the alleged lack of notice and hearing, it was
These grounds, however, as correctly pointed out by the Capco whose arguments were never ventilated. If he remained
COMELEC, are proper only in an election contest but not complacent, it was because the COMELECs actuation was
in a petition to declare a failure of election and to nullify a favorable to him.
proclamation. Section 6 of the Omnibus Election Code lays
down the instances when a failure of election may be Certainly, the COMELEC cannot be said to have committed
declared. It states thus: abuse of discretion, let alone grave abuse thereof, in dismissing
Borjas petition. For having applied the clear provisions of the
SEC. 6. Failure of Election. If, on account of force majeure, law, it deserves, not condemnation, but commendation.
violence, terrorism, fraud, or other analogous causes the
election in any polling place has not been held on the date WHEREFORE, the instant petition is hereby DISMISSED.
fixed, or had been suspended before the hour fixed by law The Resolution of the Commission on Elections dated May 25,
for the closing of the voting, or after the voting and during 1995 is hereby AFFIRMED. No pronouncement as to cost.
the preparation and the transmission of the election returns
or in the custody or canvass thereof, such election results in SO ORDERED.
a failure to elect, and in any of such cases the failure or
suspension of election would affect the result of the election,

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16. [G.R. No. 124041. August 9, 1996] Despite petitioners objection, the returns of Precinct No. 4
were included in the canvass. As the final tally stood, Tanog
SULTAN AMER BALINDONG, petitioner, vs. received 2,271 votes, while Balindong, 2,122 votes. Tanog led
COMMISSION ON ELECTIONS and MAYOR CABIB A. by 149 votes. On May 16, 1995, he was proclaimed mayor of
TANOG, respondents. Pualas, prompting petitioner to file a Petition to Suspend
DECISION and/or Annul Proclamation and a Supplemental Petition.

MENDOZA, J.: In its resolution dated June 26, 1996, the Second Division of
the COMELEC dismissed the Petition to Suspend/Annul
Petitioner Sultan Amer Balindong seeks to annul the Proclamation and the Supplemental Petition for lack of merit,
resolution, dated June 26, 1995, of the Commission on ruling that the grounds relied upon by the petitioner were
Elections (COMELEC), dismissing his petition to annul the proper for an election protest rather than a pre-proclamation
proclamation of his opponent, herein private respondent Cabib controversy. The ruling was affirmed, on reconsideration, by
A. Tanog, as mayor of Pualas, Lanao del Sur, and the the COMELEC en banc.
resolution, dated March 12, 1996, of the COMELEC en banc,
denying petitioners motion for reconsideration. The COMELEC en banc held that the transfer of the polling
place of Precinct No. 4 was illegal because it was made only
FACTS: by agreement of the watchers of the candidates and the
Petitioner and private respondent were candidates for members of the Board of Election Inspectors, the District
municipal mayor of Pualas, Lanao del Sur in the elections held Officer of the DECS, the Municipal Treasurer and an Election
on May 8, 1995. After the canvass, private respondent Tanog Officer, without notice and hearing and in violation of the
was credited with 2,271 votes, while petitioner was credited prohibition against transfers less than 45 days before a regular
with 2,122 votes. Tanog thus led by a margin of 149 votes. election, as provided in 153-154 of the Omnibus Election Code
(OEC). The COMELEC, therefore, ordered its Law
On May 17, 1995, petitioner filed in the COMELEC a Petition Department to investigate the matter and determine the parties
to Suspend and/or Annul Proclamation of respondent Cabib responsible for it.
Tanog. He alleged that the polling place in Precinct No. 4 had
been transferred from Barangay Lumbac to Barangay Talambo, The COMELEC held, however, that a failure of election could
both in the municipality of Pualas, without prior notice and not be declared because for such a declaration to be proper
hearing, with the result that voters in Lumbac, who were his under 6 of the OEC, two conditions must concur, namely, (1)
supporters, were not able to cast their votes. Petitioner claimed that no voting has taken place in the precinct on the date fixed
that, over his objection, the Municipal Board of Canvassers by law or, even if there was voting, the election results in a
(MBC) proceeded with the canvass, including therein the failure to elect; and (2) that the votes not cast would affect the
election return from Precinct No. 4. result of the election.[4] The COMELEC ruled that neither of
these conditions existed in the case at bar, because the election
On June 17, 1995, petitioner filed an Ex-Parte Motion to Set actually took place in Precinct No. 4 and, although it appeared
for Hearing and Supplemental Petition (hereinafter referred to that 66 voters were not able to vote, their votes, even if counted
as Supplemental Petition). He alleged that the election return in petitioners favor, could not overcome private respondents
from Precinct No. 4 was obviously manufactured and therefore margin of 149.
should have been excluded from the canvass, because of
massive substitute voting which could be established by a ISSUE:
technical examination of the signatures and thumbmarks Hence, this petition for certiorari. Petitioner contends that the
affixed in the List of Voters (C.E. Form No. 2) and Voters COMELEC gravely abused its discretion in refusing to annul
Affidavits (C.E. Form No. 1) of Precinct No. 4. Petitioner, the results in Precinct No. 4 despite its finding that the transfer
therefore, prayed that a technical examination of the signatures of the polling place was not in accordance with law and to
and thumbmarks in C.E. Forms No. 1 and 2 be ordered. order a technical examination of the signatures and
thumbmarks in the List of Voters and in the Voters Affidavits.
Indeed, it appears that in the morning of the election day, the
members of the Board of Election Inspectors transferred the On March 19, 1996, we issued a temporary restraining order,
polling place of Precinct No. 4 from the Lumbac Primary ordering private respondent to cease and desist from exercising
School at Barangay Lumbac to the Pualas Elementary School the duties and functions of the Office of the Mayor of Pualas,
in Barangay Talambo, on the ground that there was no existing Lanao del Sur, until further orders from this Court. Upon
public school or public building in Lumbac and free elections further consideration of the petition, in light of the comments
could not be insured in that place. The resolution of the Board separately filed by respondents, it is now our opinion that
of Election Inspectors transferring the polling place was signed petitioners remedy is not to seek the annulment of private
by the chairman, the poll clerk, and the member, as well as by respondents proclamation but, if at all, to file an election
the two watchers of the candidates for mayor,[1] although it is protest against private respondent.
now claimed that petitioners watchers were intimidated to sign
the resolution. RULING:
First. The mere fact that the transfer of polling place was
Petitioner charged that supporters of private respondent Tanog not made in accordance with law does not warrant a
filled out the ballots with the knowledge and approval of the declaration of failure of election and the annulment of the
members of the Board of Election Inspectors who were proclamation of the winning candidate, unless the number
relatives of Tanog, the chairman being the wife of a nephew of of uncast votes will affect the result of the election. Thus, in
Tanog and the poll clerk and member, his nieces. The two Co v. COMELEC,[5] we upheld the transfer of polling places
nieces in fact allegedly lived in private respondents house. ordered by the Election Registrar four days before the election,
Petitioner filed a petition for the disqualification of the allegedly because the teachers, who were members of the
members of the Board on May 7, 1995, but, apparently, Board of Election Inspectors, were afraid of reported terrorists
because of its proximity to the day of the election, it was not plans to disrupt the elections in the affected areas. Only
acted upon by the Office of the Municipal Election Officer. barangay captains in the areas were notified of the change.
Despite claims that the transfer of polling place was illegal,
On May 15, 1995, petitioner objected to the inclusion in the because it was made in disregard of 152, 153, and 154 of the
canvass of the election return from Precinct No. 4.[2] He OEC, and that it had resulted in the disfranchisement of 15,000
submitted in support of his objection a complaint-affidavit voters, we upheld the COMELEC in refusing to declare a
signed by 63 voters who allegedly were not able to cast their failure of election, it appearing that the disfranchised voters
votes during the election.[3] In that barangay, which he were only 2,978 and represented only 22.6% of the entire
claimed is his bailiwick, petitioner obtained 11 votes, while electorate, and their votes would not affect the result of the
private respondent obtained 178, or 167 more votes than election even if they were counted.
petitioner.
In the case at bar, although the COMELEC declared the
transfer of the polling place to be illegal, the fact is that only

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66, out of 255 registered voters in Precinct No. 4, were not able Indeed, what petitioner wants is a technical examination of the
to vote. Assuming that all the 63 signatures on the affidavit[6] signatures so that he can prove fraud. Petitioner must find his
submitted by petitioner were authentic and that the 63 voters own evidence rather than fish for it in this manner. To allow
who signed the complaint-affidavit would have voted for election documents to be examined on a mere hunch or at the
petitioner, their votes would increase petitioners 2,122 votes to whim of a losing candidate without any factual basis would be
2,185 only, which is still less than private respondents total of to allow him to trifle with the will of the people.
2,271 votes. The additional votes would not have materially
affected the results of the election so as to warrant a The COMELEC thus correctly denied petitioners motion for
declaration of failure of election. technical examination of the Voters Lists and Voters Affidavits
(C.E. Form Nos. 1 & 2).
Second. It is contended that if a technical examination of
the List of Voters and the Voters Affidavits had been Third. Petitioners remedy is to raise the issues he seeks to
ordered, the COMELEC would have discovered massive ventilate in this case in an election protest before the
substitute voting which would convince it that indeed the Regional Trial Court. He can there show if the illegality of
election return from Precinct No. 4 is obviously the transfer of the polling place, as determined by the
manufactured within the meaning of 243(c) of the OEC. COMELEC, in any way affected the result of the voting in
This contention is without merit. As we recently ruled in the precint and ultimately the result of the election in
Loong v. COMELEC,[7] as long as the returns appear to be Pualas, Lanao del Sur. The records show that he filed two
authentic and duly accomplished on their face, the Board of pre-proclamation controversies before private respondent was
Canvassers cannot look beyond or behind them to verify proclaimed as mayor on May 16, 1995. The second of these
allegations of irregularities in the casting or the counting of the petitions, which was filed on May 15, 1995, questioned the
votes. Corollarily, technical examination of voting validity of the returns from Precinct No. 4 on the ground that
paraphernalia involving analysis and comparison of voters they were falsified, obviously manufactured and prepared
signatures and thumbprints thereon is prohibited in pre- under duress, threats, coercion and intimidation. As his petition
proclamation cases which are mandated by law to be was not acted upon by the Municipal Board of Canvassers, he
expeditiously resolved without involving evidence aliunde and filed a petition for the annulment of private respondents
examination of voluminous documents which take up much proclamation in the COMELEC. Pursuant to 248 of the OEC,
time and cause delay in defeat of the public policy underlying the filing of this case for suspension or annulment of the
the summary nature of pre-proclamation controversies. If the proclamation of Tanog suspended the running of the period for
technical examination of the Voters List and Voters Affidavits filing an election protest.
was sustained in that case, it was because even before the
technical examination was conducted, the Commission already WHEREFORE, the petition is DISMISSED. The temporary
noted certain badges of fraud just by looking at the election restraining order issued on March 19, 1996 is LIFTED
results of Parang, Sulu. effective immediately.

By contrast whether the election return in this case is SO ORDERED.

manufactured is not obvious, but would depend for its showing
on an examination of C.E. Forms No. 1 and 2. Sec. 243(c), in 17. [G.R. No. 107987. March 31, 1993.]
relation to 242, in giving the COMELEC jurisdiction over pre-
proclamation controversies and allowing the suspension or JOSE M. BULAONG, M.D., Petitioner, v. COMELEC,
annulment of any proclamation, requires, if the basis of the FIRST DIVISION, and LUIS VILLAFUERTE,
controversy is that election returns are manufactured, that this Respondents.
fact be obvious on the face of the returns.[8] Such would be the
case, for example, if all votes therein reported are cast in favor Chaves, Hechanova & Lim Law Offices for Petitioner.
of a candidate or candidates belonging to the same party,[9] or,
if the results of the canvass are statistically improbable.[10] In Brillantes, Nachura, Navarro & Arcilla for Private Respondent.
such a case, the results of the election would be
unascertainable, making it necessary to conduct a technical Simando & Associates for intervenor.
examination of the Voters List and Voters Affidavits.

But in the case at bar, the results are not unascertainable. SYLLABUS
Petitioners allegation of massive substitute voting as a result of
the transfer of polling place has not been proved.
Consequently, his call for the examination of the Voters List 1. POLITICAL LAW; COMMISSION ON
and Voters Affidavits is without any basis. ELECTIONS; REFERRAL OF PENDING MOTIONS FOR
RECONSIDERATION IN A DIVISION TO THE COMELEC
In Loong we also held: EN BANC, NOT MANDATORY; UNANIMOUS VOTE OF
DIVISION MEMBERS NECESSARY TO BE CONSIDERED
While, however, the COMELEC is restricted, in pre- EN BANC. It is not mandatory on the part of a division of
proclamation cases, to an examination of the election returns the COMELEC to refer all pending motions for reconsideration
on their face and is without jurisdiction to go beyond or behind to the COMELEC en banc. Being an interlocutory matter, the
them and investigate election irregularities, the COMELEC is question now before us is whether or not the First Division of
duty bound to investigate allegations of fraud, terrorism, the COMELEC committed grave abuse of discretion in
violence and other analogous causes in actions for annulment refusing to refer petitioners motion for reconsideration to the
of election results or for declaration of failure of elections, as COMELEC en banc. It is our opinion that the COMELEC did
the Omnibus Election Code denominates the same. Thus, the not commit grave abuse of discretion. For said motion to be
COMELEC, in the case of actions for annulment of election considered en banc, it requires the unanimous vote of the
results or declaration of failure of elections, may conduct members of the division as mandated by Section 2 Rule 3 of
technical examination of election documents and compare and the COMELEC Rules. In the case at bar, there was an absence
analyze voters signatures and fingerprints in order to determine of such vote. Instead of withholding its decision on such
whether or not the elections had indeed been free, honest and interlocutory matter, the First Division of the COMELEC
clean. Needless to say, a pre-proclamation controversy is not decided to exercise its power under Section 6 of Rule 20 of the
the same as an action for annulment of election results or COMELEC Rules with states: "When the allegations in a
declaration of failure of elections. protest or counter-protest so warrant, or whenever in the
opinion of the Commission or Division the interest of justice so
Here, there were mere rumors that the ballots had been filled demands, it shall immediately order the ballot boxes containing
out by private respondents supporters, but there was no ballots and their keys, list of voters with voting records, book
evidence shown to support the claim. Not a single witness had of voters and other documents used in the election to be
first hand knowledge of actual fraud, terrorism, violence or brought before the Commission, and shall order the revision of
force majeure that attended the election. the ballots . . .

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 Page 28 of 48

On October 19,1992, the COMELEC thru its First Division

2. ID.; ID.; MANDAMUS DOES NOT LIE denied petitioners motion for reconsideration dated September
AGAINST A DISCRETIONARY POWER OF THE 21, 1992. 8 On the same day, petitioner also filed an Omnibus
COMELEC. A mandamus proceeding involving a motion praying that his two motions for reconsideration
discretionary power of the COMELEC does not lie. A perusal (Annexes G and J) be certified to the COMELEC en banc
of the aforecited section impliedly reveals the discretionary pursuant to Section 5 of Rule 19 of the COMELEC Rules of
power of the COMELEC Division or En Banc to order a Procedure. 9
revision of ballots. This can be gleaned from the use of the
phrase, "whenever in the opinion of the Commission or On October 30, 1992, petitioner filed with the COMELEC en
Division the interest of justice so demand." Petitioner is to be banc a manifestation end motion praying that his motions for
reminded that mandamus, as a remedy, is available to compel reconsideration 10 and his Omnibus Motion 11 filed with the
the doing of an act specifically enjoined by law as a duty. It First Division be ordered certified to it for resolution. 12 On
cannot compel the doing of an act involving the exercise of December 3, 1992, the First Division of the COMELEC denied
discretion one way or the other. Undoubtedly, the First petitioners manifestation that its motions for reconsiderations
Division of the COMELEC was within its powers in be certified to the COMELEC en banc because the order
designating Manila as the venue of the revision of ballots. directing the Provincial Election Supervisor of Camarines Sur
to immediately send the 649 ballot boxes to Manila is merely
3. ID.; ID.; MOTIONS FOR RECONSIDERATIONS interlocutory. 13
FILED WITHIN THE FIVE (5) DAY REGLEMENTARY
PERIOD PRESCRIBED BY SEC. 2, RULE 19, COMELEC Hence, this instant petition for certiorari and mandamus with
RULES, CAN BE REFERRED TO THE COMELEC EN prayer for a temporary restraining order to enjoin the order to
BANC. Even if we are to consider the case at bar as falling the First Division of the COMELEC dated September 9,1992.
within the jurisdiction of the COMELEC en banc by virtue of On December 14,1992, this Court issued a temporary
Section 3 of Rule 5(c) of the COMELEC Rules, it goes without restraining order against public Respondent.
saying that only motions for reconsideration filed within the
five (5) day reglementary period as prescribed by Section 2 of On January 26, 1992, Marito Bernales, a candidate for the
Rule 19 of said Rules can be referred to the COMELEC en position of provincial board member in Camarines Sur, filed a
banc. Petitioner should have filed his motion for motion for intervention alleging that the temporary restraining
reconsideration on or before September 21, 1992 considering order we issued has affected the outcome of his electoral
that he received the COMELECs order dated September 9, protest with the COMELEC (EPC 92-38), his votes being in
1992 on September 16, 1992. the same contested ballots subject of the revision proceedings
in the case at bar. We granted movants motion to intervene in
our resolution dated February 9, 1992.
DECISION
ROMERO, J.: ISSUE:
The issue at hand is whether or not the First Division of the
FACTS: COMELEC committed grave abuse of discretion when it
Petitioner Jose M. Bulaong, M.D. and private respondent Luis refused to refer petitioners motions for reconsideration 14 to
Villafuerte were both candidates for the office of the provincial the COMELEC en banc notwithstanding the mandate of
governor of Camarines Sur in the May 11, 1992 local elections. Section 5 of Rule 19 of the COMELEC Rules of Procedure
Petitioner, having obtained a total of 184,654 votes as against (COMELEC Rules) which provides that:
private respondents vote of 155,359 or a difference of 29,295
votes, was proclaimed by the Provincial Board of Canvassers "How motion for reconsideration disposed of Upon the
as the duly elected governor on June 30, 1992. Accordingly, filing of a motion to reconsider a decision, resolution, order
petitioner took his oath of office on July 1, 1992. or ruling of a Division, the Clerk of Court concerned shall
within twenty four (24) hours from the filing thereof, notify
On July 9, 1992, private respondent filed an election protest the Presiding Commissioner. The latter shall within two (2)
questioning the precinct results of ten (10) Municipalities of days thereafter, certify the case to the Commission en
Baao, Buhi, Cabusao, Calabanga, Libmanan, Pamplona, banc."
Pasacao, Pili, San Fernando and Sipocot end the City of Iriga.
Subsequently, on August 21, 1992, private respondent filed an While petitioner concedes that the order of the COMELEC
Omnibus Motion praying that the venue for the ballot revision designating Manila as the venue of the revision proceedings
proceedings be conducted at the main office of the dated September 9, 1992 is interlocutory, petitioner
Commission on Elections in Intramuros, Manila. 1 Petitioner nonetheless contends that a reading of Section 2 of Rule 3 15
opposed private respondents prayer citing that ballot revision in conjunction with Section 5 (c) of the same rule 16 would
proceedings need not be held in Manila since there was no reveal that it is the duty of the First Division of the COMELEC
untoward incident that happened during the canvassing of to refer his motion for reconsideration to the COMELEC en
votes from May 12 to May 30, 1992 in Naga City. banc, since the matter concerning the venue of the revision of
ballots is a substantial issue which the latter should review. 17
Acting on private respondents prayer, the First Division of the
COMELEC through its order dated September 9, 1992 granted Petitioner prays that a writ of mandamus he issued directing
private respondents prayer for a revision of ballots to be held the First Division of the COMELEC to certify and elevate his
in Manila. 2 This order was received by petitioner on motions for reconsideration to the COMELEC en banc.
September 16, 1992.
RULING:
On September 21,1992, Petitioner, fearing that his motion for We vote to dismiss the instant petition. It is not mandatory
reconsideration might not be finished on time, filed an "Urgent on the part of a division of the COMELEC to refer all
Motion for One-day Extension." 3 A day after or on September pending motions for reconsideration to the COMELEC en
22, 1992, petitioner filed his motion for reconsideration dated banc.
September 21, 1992. 4
Admittedly, the order regarding the revision of ballots is an
There being no resolution yet on his motion for extension, interlocutory order because it still requires a party to perform
petitioner then filed a "Supplement to Urgent Motion for One- certain acts leading to the final adjudication of a case. 18 The
day Extension," on October 6, 1992. 5 order in the case at bar is for the Provincial Election Supervisor
of Camarines Sur to transfer the ballot boxes from Camarines
On October 12, 1992, petitioner received his copy of the Sur to Manila for a recount and revision of ballots, for the
COMELECs order dated October 6, 1992 denying petitioners purpose of determining who won the gubernatorial race in
urgent motion for one day extension. 6 On October 14, 1992, Camarines Sur.
petitioner moved to reconsider. 7
Being an interlocutory matter, the question now before us is
whether or not the First Division of the COMELEC committed

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grave abuse of discretion in refusing to refer petitioners SUBSTITUTE MEMBERS, BOARDS OF ELECTION
motion for reconsideration to the COMELEC en banc. It is our INSPECTORS FOR PRECINCTS 7-A, 9, 9-A, 10, 13 and
opinion that the COMELEC did not commit grave abuse of 14, MADALUM, care of REGIONAL ELECTION
discretion. DIRECTOR, REGION XII; CANDIDATES FOR VICE-
MAYOR OSOP KIRAM, ANGNI ERSA AND IBRAHIM
For said motion to be considered en banc, it requires the ALAWI, and CANDIDATES FOR COUNCILOR
unanimous vote of the members of the division as USNGAN MACASAMBIT, MALIK M. COSAIN,
mandated by Section 2 of Rule 3 of the COMELEC Rules. FARIDA S. TANTAO, ALIM A. PATARANDANG,
In the case at bar, there was an absence of such vote. HALIL D. DAISANGKAY, BINOLAWAN L. HASSAN,
Instead of withholding its decision on such interlocutory and ALEX M. ASIZ, respondents.
matter, the First Division of the COMELEC decided to DECISION
exercise its power under Section 6 of Rule 20 of the
COMELEC Rules which states: KAPUNAN, J.:

"When the allegations in a protest or counter-protest so FACTS:

warrant, or whenever in the opinion of the Commission or Petitioner, Hadji Nor Basher L. Hassan, and private
Division the interest of justice so demands, it shall respondent, Mangondaya P. Hassan Buatan were candidates
immediately order the ballot boxes containing ballots and for the Office of the Vice-Mayor while the other private
their keys, list of voters with voting records, book of voters respondents were candidates for councilors in Madalum, Lanao
and other documents used in the election to be brought del Sur in the last regular local elections of May 8, 1995.
before the Commission, and shall order the revision of the However, due to threats of violence and terrorism in the area
ballots . . . there was failure of elections in six out of twenty-four precincts
in Madalum.
"The revision of ballots shall be made in the office of the
Clerk of Court concerned or at such places as the The ballot boxes were burned and there were threats by
Commission or Division shall designate, and shall be unidentified persons in Precinct No. 7-A. In Precinct Nos. 9, 9-
completed within three (3) months from the date of the A, 10, 13, and 14, elections did not take place because the
order, unless otherwise directed by the Commission." members of the Board of Election Inspectors (BEI) failed to
(Emphasis provided) report to their respective polling places.

Similarly, a mandamus proceeding involving a discretionary Thus, the Monitoring Supervising Team (COMELEC Team)
power of the COMELEC does not lie. A perusal of the headed by Regional Election Director Virgilio O. Garcillano
aforecited section impliedly reveals the discretionary power of recommended to the COMELEC the holding of special
the COMELEC Division or En Banc to order a revision of elections in said precincts. The special elections were thereby
ballots. This can be gleaned from the use of the phrase, set on May 27, 1995. On said date, however, the members of
"whenever in the opinion of the Commission or Division the the BEI again failed to report for duty in their respective
interest of justice so demand." Although in most instances the polling places.
revision of ballots takes place in the office of the Clerk of
Court concerned, revision of ballots may also be held in "such In an Order dated May 28, 1995, the COMELEC Team re-
places as the Commission or Division shall designate." scheduled the elections in these precincts for May 29, 1995 at
Petitioner is to be reminded that mandamus, as a remedy, is Liangan Elementary (Arabic) School, which is 15 kilometers
available to compel the doing of an act specifically enjoined by away from the designated polling places.
law as a duty. It cannot compel the doing of an act involving
the exercise of discretion one way or the other. 19 On May 29, 1995, the members of the Board did not again
Undoubtedly, the First Division of the COMELEC was within report for duty. Hence, the COMELEC Team was constrained
its powers in designating Manila as the venue of the revision of to appoint police/military personnel to act as substitute
ballots. members so as to push through with the elections.

Even if we are to consider the case at bar as falling within In the May 8 elections, the results for the Office of the Vice-
the jurisdiction of the COMELEC en banc by virtue of Mayor were as follows:
Section 3 of Rule 5(c) of the COMELEC Rules, it goes
without saying that only motions for reconsideration filed 1. MANGONDAYA HASSAN - 884
within the five (5) day reglementary period as prescribed
by Section 2 of Rule 19 20 of said Rules can be referred to 2. OSOP KIRAM - 816
the COMELEC en banc. Petitioner should have filed his
motion for reconsideration on or before September 21, 1992 3. PETITIONER HASSAN - 801
considering that he received the COMELECs order dated
September 9, 1992 on September 16, 1992. Petitioner may 4. ESRA S. ANGNI - 340
have been overly optimistic in expecting that his "urgent
motion for one-day extension" would be granted forthwith by 5. IBRAHIM ALAWI - 185
the First Division, which it did not. Hence, upon the lapse of
five (5) days, the order of the COMELEC dated September 9, In the May 29 special elections held in Precinct Nos. 9, 9-A,
1992 can no longer be questioned; much less can it be referred 10, 13 and 14 the following votes were obtained.
to the COMELEC en banc.
1. M. HASSAN - 214
WHEREFORE, the instant petition is hereby DISMISSED.
The temporary restraining order issued by this court against the 2. OSOP KIRAM - 17
First Division of the COMELEC enjoining the transfer of
ballot boxes to Manila is hereby LIFTED. 3. N. HASSAN - 78

SO ORDERED. 4. ANGNI ESRA - 1

18. [G.R. No. 124089. November 13, 1996] 5. IBRAHIM ALAWI - 0

HADJI NOR BASHER L. HASSAN, petitioner, vs. Hence the final results are as follows:
COMMISSION ON ELECTIONS, MANGONDAYA P.
HASSAN BUATAN; COMELEC MONITORING AND 1. MANGONDAYA HASSAN - 1,098
SUPERVISING TEAM, REGION XII; MADALUM
ELECTION OFFICER; MADALUM MUNICIPAL 2. PETITIONER NOR HASSAN - 879
BOARD OF CANVASSERS; REGULAR and
3. OSOP KIRAM - 833

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SEC. 6. Failure of election. If, on account of force majeure,

4. ANGNI ESRA - 341 violence, terrorism, fraud, or other analogous causes the
election in any polling place has not been held on the date
5. IBRAHIM ALAWI - 185[1] fixed, or had been suspended before the hour fixed by law
for the closing of the voting, or after the voting and during
On June 10, 1995, petitioner Hadji Nor Basher L. Hassan filed the preparation and the transmission of the election returns
a petition with the COMELEC docketed as SPA 95-283 or in the custody or canvass thereof, such election results in
assailing the validity of the May 29 re-scheduled special a failure to elect, and in any of such cases the failure or
elections on the following grounds: suspension of election would affect the result of the election,
the Commission shall, on the basis of a verified petition by
a) The voting which started at 10:00 A.M. was forcibly ended any interested party and after due notice and hearing, call
at around 2:00 p.m. because of exchanges of rapid gunfiring for the holding or continuation of the election not held,
and grenade launching between unknown elements and the suspended or which resulted in a failure to elect on a date
Army or PNP soldiers; reasonably close to the date of the election not held,
suspended or which resulted in a failure to elect but not
b) The voting was moved to Liangan Elementary (Arabic) later than thirty days after the cessation of the cause of
School, located about 15 kilometers away from the respective such postponement or suspension of the election or failure
polling places; to elect. (Sec. 7, 1978 EC)

c) Notices in the transfer of venue of the voting was sent only In several cases,[5] the Court has ruled that the pre-
on the night of May 28, 1995 and only to a few but not to all conditions for declaring a failure of election are: (1) that no
concerned; voting has been held in any precinct or precincts because of
force majeure, violence or terrorism, and (2) that the votes
d) Only 328 out of the 1,645 registered voters of said 5 not cast therein suffice to affect the results of the elections.
precincts were able to vote constituting only about 21.1%[2] The concurrence of these two (2) circumstances are
and disenfranchising 78% of the registered voters thereof; and required to justify the calling of a special election.

e) The regular members of the BEI did not report for duty and Mindful of these two (2) requirements, we rule in favor of the
were substituted by military personnel.[3] petitioner.

At the same time, private respondent Mangondaya P. Hassan The COMELEC explained that:
Buatan also filed a petition with the COMELEC (docketed as
SPA 95-286) assailing the inaction of the Municipal Board of Jurisprudence holds that terrorism may not as a rule be invoked
Canvassers of Madalum on his petition to be proclaimed the to declare a failure of elections and to disenfranchise the
winning vice-mayoralty candidate. greater number of the electorate through the misdeeds of only a
relative few. Otherwise elections will never be carried out with
On February 21, 1996 the COMELEC en banc issued a the resultant disenfranchisement of the innocent voters, for the
resolution denying the petition for a declaration of failure of losers will always cry fraud and terrorism. It has been ruled
elections and to call special elections in Precinct Nos. 7-A that annulment of election results and consequent
(Abaga), 9, 9-A, 10, 13 and 14, in Madalum, Lanao del Sur. It disenfranchisement of voters is a very stringent one. The power
disposed of the consolidated petitions (SPA 95-283 and SPA to annul an election should be exercised with the greatest care
95-286) by directing the Regional Election Director of Region and circumspection and only in extreme cases and under
XII in consultation with the Commissioner-in-Charge of circumstances which demonstrate beyond doubt and to the
Region XII to reconstitute the Municipal Board of Canvassers fullest degree of fundamental and wanton disregard of the law.
of Madalum, Lanao del Sur, of which shall convene forthwith (Grand Alliance for Democracy [GAD] vs. Comelec, 150
and complete the canvass by proclaiming the winning vice- SCRA 665; Reyes vs. Mamba, HRET Case No. 92-022,
mayoralty candidate, Mangondaya P. Hassan Buatan, and eight September 14, 1994).[6]
winning candidates for member, Sangguniang Bayan of that
municipality.[4] While we are aware of the aforesaid rule, the COMELEC can
not turn a blind eye to the fact that terrorism was so prevalent
Thus, petitioner went up to this Court assailing the aforesaid in the area, sufficient enough to declare that no voting actually
resolution with a prayer for Temporary Restraining Order occurred on May 29, 1995 in the areas concerned.
(TRO) to enjoin the proclamation of the winning candidates.
It must be recalled that elections had to be set for the third time
On March 26, 1996, the Court issued a Temporary Restraining because no members of the Board of Election Inspectors (BEI)
Order as prayed for pending the resolution of the issue as to reported for duty due to impending threats of violence in the
whether or not the COMELEC erred in not declaring a failure area. This then prompted COMELEC to deploy military men to
of elections on May 29, 1995 in Madalum, Lanao del Sur. act as substitute members just so elections could be held; and
to thwart these threats of violence, the COMELEC Team,
In its Resolution dated February 21, 1996, the COMELEC moreover, decided to transfer the polling places to Liangan
ruled that the petition to declare a failure of elections in Elementary School which was 15 kilometers away from the
Madalum has no valid grounds since the outcome of the special polling place. Nonetheless, voting on May 29 had to be
elections in the said precincts would nonetheless not change suspended before the hour fixed by law for the closing of the
the final results of the elections in petitioners favor. voting because of threats of violence, grenade launching and
gunfires. The Memorandum and Offer of Evidence submitted
The difference between the first and second place is only 219 by the petitioner are quite revealing, among which are the
votes. The only precinct left which was not counted since the following:
ballot box was burned was Precinct 7-A and Precinct 7-A has
219 voters. The COMELEC opined that it would be quite (1) EXH. A Memorandum of the respondent Comelec Team,
impossible for all 219 voters to have voted for petitioner. dated June 4, 1995, recommending the holding of special
election in Pct. 7-A, because the ballot box with ballots were
ISSUE: set on fire by unknown men amounting to failure of election
Hence, whether or not a special election would be held, also;
Mangondaya P. Hassan Buatan would in all probability still
come out the winner. (2) EXH B Certification by the Madalum Acting Election
Officer on the appointment of substitute members, who are
RULING: military personnel, in the 5 precincts involved in this case,
The authority of the COMELEC to declare a failure of election because of failure of the regular members thereof to report for
is provided by Section 6 of the Omnibus Election Code, which duty in the May 29, 1995 special election;
reads:

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(3) EXH. C Minutes of Voting for Pct. 9, showing that 59 of It is essential to the validity of the election that the voters
the 418 registered voters voted; voting started at 11:40 a.m. have notice in some form, either actual or constructive of
and ended at 2:25 p.m.; only 58 valid ballots were found inside the time, place and purpose thereof.[9] The time for holding
the ballot box; and the reported violence and terrorism, which it must be authoritatively designated in advance. The
reads: requirement of notice even becomes stricter in cases of special
elections where it was called by some authority after the
happening of a condition precedent, or at least there must be a
UNTOWARD INCIDENTS HAPPENED. substantial compliance therewith so that it may fairly and
reasonably be said that the purpose of the statute has been
AT ABOUT 2: 15 PM MAY 29, 1995, WHILE THE VOTING carried into effect.[10] The sufficiency of notice is
IS BEING CONDUCTED, AN M-79 OR M203 GRENADE determined on whether the voters generally have
LAUNCHER WAS FIRED BEHIND THE WOODEN knowledge of the time, place and purpose of the elections so
SCHOOL BUILDING WHERE PRECINCT NO. 9, 9-A, AND as to give them full opportunity to attend the polls and
13, 14 WERE LOCATED. THIS WAS FOLLOWED BY express their will or on the other hand, whether the
RAPID FIRE FROM THE UNIDENTIFIED GROUP. WE omission resulted in depriving a sufficient number of the
PUT ALL THE ELECTION PARAPHERNALIA AND qualified electors of the opportunity of exercising their
FORMS INSIDE THE BALLOT BOX AND PADLOCKED franchise so as to change the result of the election.[11]
THE SAME. THERE WERE ABOUT 5 GRENADE
LAUNCHERS WERE FIRED AT THE SCHOOL, THE From the foregoing, it is not difficult for us to rule that there
MILITARY SECURITY EXCHANGED FIRE TO THE was insufficiency of notice given as to the time and transfer of
GROUP. IT LASTED FOR ABOUT 30 MINUTES. WE LEFT the polling places. The low turnout of voters is more than
THE SCHOOL (LIANGAN ARABIC SCHOOL) AT ABOUT sufficient proof that the elections conducted on that day was
2:45 PM AND PROCEEDED TO MUNICIPAL HALL OF vitiated. A less than a days notice of time and transfer of
MADALUM. WE LEFT MADALUM AT 3:15 PM AND polling places 15 kilometers away from the original polls
ARRIVED AT MARAWI CITY AT ABOUT 5:00 PM (p. 4) certainly deprived the electors the opportunity to participate in
the elections.
xxx
Respondents argue that since voting actually occurred on May
(8) EXH. H Joint Affidavit of Hassans watchers, dated June 29, the substantial requirement of notice was complied with,
11, 1995, corroborating that: which should not necessarily invalidate the elections; more so,
if the votes not cast therein suffice to affect the results of the
4. That at about 2:00 p.m. unidentified gunmen began elections.
indiscriminately fired their guns around the polling place
which provoked the military serving the precincts to close the We disagree. It was quite sweeping and illogical for the
ballot boxes and the other military men guarding the polling COMELEC to state that the votes uncast would not have in any
place reacted and also fired their guns which caused panic to way affected the results of the elections. While the difference
the voters around; between the two candidates is only 219 out of the votes
actually cast, the COMELEC totally ignored the fact that there
That to our evaluation at the closing of the voting at 2:00 p.m. were more than a thousand registered voters who failed to vote.
only more or less 20 percent of the registered voters in each of Aside from Precinct 7-A where the ballot box had been burned
the five precincts have casted their votes;.[7] and which had 219 voters, the COMELEC failed to consider
the disenfranchisement of about 78% of the registered voters in
The peculiar situation of Madalum can not be overstated. the five (5) precincts of Madalum. Out of the 1,546 registered
Notwithstanding, the notice given on the afternoon of May 28 voters, only 328 actually voted because of the insufficient and
resetting the special elections to May 29 and transferring the ineffectual notice given of the time and place of elections.
venue of the elections 15 kilometers away from the farthest Whether or not another special election would turn the tide in
barangay/school was too short resulting to the petitioners favor is of no moment because what is more
disenfranchisement of voters. Out of the 1,546 registered important is that the electors should not have been deprived of
voters in the five (5) precincts only 328 actually voted. The their right to vote which was rather apparent in the case at bar.
COMELEC justified this short notice in this light:
Finally, in Lucero v. COMELEC,[12] we stated that:
x x x. Viewed from ordinary human experience and the
election culture obtaining in the locality, there can be no doubt In fixing the date of the special election, the COMELEC
that, the date on which special elections were to be held after should see to it that: (1) it should be not later than thirty days
one that previously failed, was high in the agenda of concerns after the cessation of the cause of the postponement or
and interests of the constituents involved. In Sabeniano, et al. suspension of the election or the failure to elect, and (2) it
vs. Comelec, 101 SCRA 289, 301 and Quilala vs. Comelec, should be reasonably close to the date of the election not held,
188 SCRA 502, the Supreme Court, referring to election suspended, or which resulted in failure to elect. The first
processes and incidents as matters directly affecting the involves questions of fact. The second must be determined in
political fortunes of a candidate, held that it is a matter of the light of the peculiar circumstances of a case.
judicial notice that the candidates, their representatives and
watchers station or deploy themselves among the various The re-scheduling of the special elections from May 27 to May
voting and canvassing centers to watch the proceedings from 29, was done in uncommon haste and unreasonably too close
the first hour of voting until the completion of the canvassing. for all voters to be notified of the changes, not only as to the
In instant case, the May 27 special elections failed and were date but as to the designated polling place. We must agree with
reset for May 29, 1995. Petitioner Hassan cannot claim that the the dissenting opinion that even in highly urbanized areas, the
later notice was not good enough for him. He was aware and dissemination of notices poses to be a problem. In the absence
ready for the May 27 special elections. He was just as alert and of proof that actual notice of the special elections has reached a
prepared for the May 29 special elections as these are matters great number of voters, we are constrained to consider the May
directly affecting his political fortunes.[8] 29 elections as invalid. If only to ascertain the will of the
people and to prevent that will from being muted, it is
We cannot agree with the COMELEC that petitioner, his necessary that a special election be held in view of the failure
followers or the constituents must be charged with notice of the of elections in Madalum, Lanao del Sur.
special elections to be held because of the failure of the two (2)
previous elections. To require the voters to come to the polls WHEREFORE, the petition is GRANTED.
on such short notice was highly impracticable. In a place
marred by violence, it was necessary for the voters to be given (1) The COMELEC is hereby enjoined from proclaiming the
sufficient time to be notified of the changes and prepare winners for the Office of Vice-Mayor and Councilors
themselves for the eventuality. respectively; and

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(2) The COMELEC is ORDERED to conduct special elections 1. The applicants for the registration shall be 25 years of age or
in Madalum, Lanao del Sur as soon as possible. less and will be registering for the first time on May 14, 2001;

SO ORDERED. 2. The applicants shall register in their places of residences;

and
POWER TO CALL SPECIAL ELECTIONS
3. The applicants shall present valid identification documents,
1. [G.R. No. 147066. March 26, 2001] like school records.

AKBAYAN Youth, SCAP, UCSC, MASP, KOMPIL II Preparatory to the registration days, the following activities are
Youth, ALYANSA, KALIPI, PATRICIA O. PICAR, likewise agreed:
MYLA GAIL Z. TAMONDONG, EMMANUEL E.
OMBAO, JOHNNY ACOSTA, ARCHIE JOHN TALAUE, 1. Submission of the list of students and their addresses
RYAN DAPITAN, CHRISTOPHER OARDE, JOSE immediately prior to the actual registration of the applicants;
MARI MODESTO, RICHARD M. VALENCIA, EDBEN
TABUCOL, petitioners, vs. COMMISSION ON 2. The Comelec field officers will be given the opportunity to
ELECTIONS, respondents. verify the voters enumerators list or conduct ocular inspection;
[G.R. No. 147179. March 26, 2001]
3. Availability of funds for the purpose; and
MICHELLE D. BETITO, petitioner, vs. CHAIRMAN
ALFREDO BENIPAYO, COMMISSIONERS MEHOL 4. Meetings with student groups to ensure orderly and honest
SADAIN, RUFINO JAVIER, LUZVIMINDA conduct of the registration and drum up interest to register
TANCANGCO, RALPH LANTION, FLORENTINO among the new voters.
TUASON and RESURRECCION BORRA, all of the
Commission on Election (COMELEC), respondents. The rationale for the additional two-day registration is the
DECISION renewed political awareness and interest to participate in the
BUENA, J.: political process generated by the recent political events in the
country among our youth. Considering that they failed to
At the helm of controversy in the instant consolidated register on December 27, 2000 deadline, they approved for
petitions[1] before us is the exercise of a right so indubitably special registration days.
cherished and accorded primacy, if not utmost reverence, no
less than by the fundamental law - the right of suffrage. In view of the foregoing, the Commission en banc has to
discuss all aspects regarding this request with directives to the
FACTS: Finance Services Department (FSD) to submit certified
Invoking this right, herein petitioners - representing the youth available funds for the purpose, and for the Deputy Executive
sector - seek to direct the Commission on Elections Director for Operations (DEDO) for the estimated costs of
(COMELEC) to conduct a special registration before the May additional two days of registration.
14, 2001 General Elections, of new voters ages 18 to 21.
According to petitioners, around four million youth failed to The presence of REDs on January 30 can be used partly for
register on or before the December 27, 2000 deadline set by the consultation on the practical side and logistical requirements of
respondent COMELEC under Republic Act No. 8189.[2] such additional registration days. The meeting will be set at
1:30 p.m. at the Office of ED.[4]
Acting on the clamor of the students and civic leaders, Senator
Raul Roco, Chairman of the Committee on Electoral Reforms, Immediately, Commissioner Borra called a consultation
Suffrage, and Peoples Participation, through a Letter dated meeting among regional heads and representatives and a
January 25, 2001, invited the COMELEC to a public hearing number of senior staff headed by Executive Director
for the purpose of discussing the extension of the registration Mamasapunod Aguam. It was the consensus of the group, with
of voters to accommodate those who were not able to register the exception of Director Jose Tolentino, Jr. of the ASD, to
before the COMELEC deadline.[3] disapprove the request for additional registration of voters on
the ground that Section 8 of R.A. 8189 explicitly provides that
Commissioners Luzviminda G. Tancangco and Ralph C. no registration shall be conducted during the period starting
Lantion, together with Consultant Resurreccion Z. Borra (now one hundred twenty (120) days before a regular election and
Commissioner) attended the public hearing called by the that the Commission has no more time left to accomplish all
Senate Committee headed by Senator Roco, held at the Senate, pre-election activities.[5]
New GSIS Headquarters Bldg., Pasay City.
On February 8, 2001, the COMELEC issued Resolution No.
On January 29, 2001, Commissioners Tancangco and Lantion 3584, the decretal portion of which reads:
submitted Memorandum No. 2001-027 on the Report on the
Request for a Two-day Additional Registration of New Voters Deliberating on the foregoing memoranda, the Commission
Only, excerpts of which are hereto quoted: RESOLVED, as it hereby RESOLVES, to deny the request to
conduct a two-day additional registration of new voters on
Please be advised that the undersigned attended the public February 17 and 18, 2001.
hearing called by the Senate Committee on electoral Reforms,
Suffrage and Peoples Participation presided over by the Hon. Commissioners Rufino S. B. Javier and Mehol K. Sadain voted
Sen. Raul Roco, its Committee Chairman to date at the Senate, to deny the request while Commissioners Luzviminda
New GSIS Headquarters Building, Pasay City. The main Tancangco and Ralph Lantion voted to accommodate the
agenda item is the request by youth organizations to hold students request. With this impasse, the Commission construed
additional two days of registration. Thus, participating students its Resolution as having taken effect.
and civic leaders along with Comelec Representatives were in
agreement that is legally feasible to have a two-day additional Aggrieved by the denial, petitioners AKBAYAN-Youth,
registration of voters to be conducted preferably on February SCAP, UCSC, MASP, KOMPIL II (YOUTH) et al. filed
17 and 18, 2001 nationwide. The deadline for the continuing before this Court the instant Petition for Certiorari and
voters registration under R.A. 8189 is December 27, 2000. Mandamus, docketed as G.R. No. 147066, which seeks to set
aside and nullify respondent COMELECs Resolution and/or to
To address the concern that this may open the flood parts for declare Section 8 of R. A. 8189 unconstitutional insofar as said
hakot system, certain restrictive parameters were discussed. provision effectively causes the disenfranchisement of
The following guidelines to serve as safeguards against petitioners and others similarly situated. Likewise, petitioners
fraudulent applicants: pray for the issuance of a writ of mandamus directing
respondent COMELEC to conduct a special registration of new
voters and to admit for registration petitioners and other

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similarly situated young Filipinos to qualify them to vote in the As to the procedural limitation, the right of a citizen to vote is
May 14, 2001 General Elections. necessarily conditioned upon certain procedural requirements
he must undergo: among others, the process of registration.
On March 09, 2001, herein petitioner Michelle Betito, a Specifically, a citizen in order to be qualified to exercise his
student of the University of the Philippines, likewise filed a right to vote, in addition to the minimum requirements set by
Petition for Mandamus, docketed as G.R. No. 147179, praying the fundamental charter, is obliged by law to register, at
that this Court direct the COMELEC to provide for another present, under the provisions of Republic Act No. 8189,
special registration day under the continuing registration otherwise known as the Voters Registration Act of 1996.
provision under the Election Code.
Stated differently, the act of registration is an indispensable
On March 13, 2001, this Court resolved to consolidate the two precondition to the right of suffrage. For registration is
petitions and further required respondents to file their part and parcel of the right to vote and an indispensable
Comment thereon within a non-extendible period expiring at element in the election process. Thus, contrary to petitioners
10:00 A.M. of March 16, 2001. Moreover, this Court resolved argument, registration cannot and should not be denigrated to
to set the consolidated cases for oral arguments on March 16, the lowly stature of a mere statutory requirement. Proceeding
2001.[6] from the significance of registration as a necessary requisite to
the right to vote, the State undoubtedly, in the exercise of its
On March 16, 2001, the Solicitor General, in its Manifestation inherent police power, may then enact laws to safeguard and
and Motion in lieu of Comment, recommended that an regulate the act of voters registration for the ultimate purpose
additional continuing registration of voters be conducted at the of conducting honest, orderly and peaceful election, to the
soonest possible time in order to accommodate that incidental yet generally important end, that even pre-election
disenfranchised voters for purposes of the May 14, 2001 activities could be performed by the duly constituted
elections. authorities in a realistic and orderly manner one which is not
indifferent and so far removed from the pressing order of the
In effect, the Court in passing upon the merits of the present day and the prevalent circumstances of the times.
petitions, is tasked to resolve a two-pronged issue focusing on
respondent COMELECs issuance of the assailed Resolution Viewed broadly, existing legal proscription and pragmatic
dated February 8, 2001, which Resolution, petitioners, by and operational considerations bear great weight in the adjudication
large, argue to have undermined their constitutional right to of the issues raised in the instant petitions.
vote on the May 14, 2001 general elections and caused the
disenfranchisement of around four (4) million Filipinos of On the legal score, Section 8, of the R.A. 8189, which
voting age who failed to register before the registration provides a system of continuing registration, is explicit, to
deadline set by the COMELEC. wit:

ISSUES: SEC. 8. System of Continuing Registration of Voters. The

Personal filing of application of registration of voters shall
a) Whether or not respondent COMELEC committed grave be conducted daily in the office of the Election Officer
abuse of discretion in issuing COMELEC Resolution dated during regular office hours. No registration shall, however,
February 8, 2001; be conducted during the period starting one hundred
twenty (120) days before a regular election and ninety (90)
b) Whether or not this Court can compel respondent days before a special election. (Emphasis Ours)
COMELEC, through the extraordinary writ of mandamus, to
conduct a special registration of new voters during the period Likewise, Section 35 of R.A. 8189, which among others,
between the COMELECs imposed December 27, 2000 speaks of a prohibitive period within which to file a sworn
deadline and the May 14, 2001 general elections. petition for the exclusion of voters from the permanent voters
list, provides:
RULING:
The petitions are bereft of merit. SEC. 35. Petition for Exclusion of Voters from the List Any
registered voter, representative of a political party x x x
In a representative democracy such as ours, the right of may file x x x except one hundred (100) days prior to a
suffrage, although accorded a prime niche in the hierarchy of regular election xxx.
rights embodied in the fundamental law, ought to be exercised
within the proper bounds and framework of the Constitution As aptly observed and succinctly worded by respondent
and must properly yield to pertinent laws skillfully enacted by COMELEC in its Comment:
the Legislature, which statutes for all intents and purposes, are
crafted to effectively insulate such so cherished right from x x x The petition for exclusion is a necessary component to
ravishment and preserve the democratic institutions our people registration since it is a safety mechanism that gives a measure
have, for so long, guarded against the spoils of opportunism, of protection against flying voters, non-qualified registrants,
debauchery and abuse. and the like. The prohibitive period, on the other hand serves
the purpose of securing the voters substantive right to be
To be sure, the right of suffrage ardently invoked by herein included in the list of voters.
petitioners, is not at all absolute. Needless to say, the
exercise of the right of suffrage, as in the enjoyment of all In real-world terms, this means that if a special voters
other rights, is subject to existing substantive and registration is conducted, then the prohibitive period for filing
procedural requirements embodied in our Constitution, petitions for exclusion must likewise be adjusted to a later date.
statute books and other repositories of law. Thus, as to the If we do not, then no one can challenge the Voters list since we
substantive aspect, Section 1, Article V of the Constitution would already be well into the 100-day prohibitive period.
provides: Aside from being a flagrant breach of the principles of due
process, this would open the registration process to abuse and
SECTION 1. SUFFRAGE MAY BE EXERCISED BY ALL seriously compromise the integrity of the voters list, and
CITIZENS OF THE PHILIPPINES NOT OTHERWISE consequently, that of the entire election.
DISQUALIFIED BY LAW, WHO ARE AT LEAST
EIGHTEEN YEARS OF AGE, AND WHO SHALL HAVE x x x It must be remembered that the period serve a vital role in
RESIDED IN THE PHILIPPINES FOR AT LEAST ONE protecting the integrity of the registration process. Without the
YEAR AND IN THE PLACE WHEREIN THEY prohibitive periods, the COMELEC would be deprived of any
PROPOSE TO VOTE FOR AT LEAST SIX MONTHS time to evaluate the evidence on the application. We would be
IMMEDIATELY PRECEDING THE ELECTIONS. NO obliged to simply take them at face value. If we compromise
LITERACY, PROPERTY, OR OTHER SUBSTANTIVE on these safety nets, we may very well end up with a voters list
REQUIREMENT SHALL BE IMPOSED ON THE full of flying voters, overflowing with unqualified registrants,
EXERCISE OF SUFFRAGE. populated with shadows and ghosts x x x.

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x x x The short cuts that will have to be adopted in order to fit prior to election day. In more categorical language, Section
the entire process of registration within the last 60 days will 28 of R.A. 8436 is, to our mind, anchored on the sound
give rise to haphazard list of voters, some of whom might not premise that these certain pre-election acts are still capable
even be qualified to vote. x x x the very possibility that we of being reasonably performed vis-a-vis the remaining
shall be conducting elections on the basis of an inaccurate list period before the date of election and the conduct of other
is enough to cast a cloud of doubt over the results of the polls. related pre-election activities required under the law.
If that happens, the unforgiving public will disown the results
of the elections, regardless of who wins, and regardless of how In its Comment, respondent COMELECwhich is the
many courts validate our own results. x x x constitutional body tasked by no less than the fundamental
charter (Sec. 2, par. 3, Article IX-C of the Constitution) to
Perhaps undaunted by such scenario, petitioners invoke the so decide, except those involving the right to vote, all
called standby powers or residual powers of the COMELEC, as questions affecting elections, including registration of
provided under the relevant provisions of Section 29, Republic voterspainstakingly and thoroughly emphasized the
Act No. 6646[7] and adopted verbatim in Section 28 of operational impossibility[12] of conducting a special
Republic Act No. 8436,[8] thus: registration, which in its on language, can no longer be
accomplished within the time left to (us) the
SEC. 28. Designation of other Dates for Certain Pre- Commission.[13]
election Acts - If it should no longer be possible to observe
the periods and dates prescribed by law for certain pre- Hence:
election acts, the Commission shall fix other periods and
dates in order to ensure accomplishments of the activities xxx xxx xxx.
so voters shall not be deprived of their right to suffrage.
19) In any case, even without the legal obstacles, the last 60
On this matter, the act of registration is concededly, by its very days will not be a walk in the park for the Comelec. Allow us
nature, a pre-election act. Under Section 3(a) of R.A. 8189, to outline what the Commission has yet to do, and the time to
registration, as a process, has its own specific definition, do it in:
precise meaning and coverage, thus:
20) First we have to complete the Project of Precincts by the
a) Registration refers to the act of accomplishing and filing 19th of March. The Projects of Precincts Indicate the total
of a sworn application for registration by a qualified voter number of established precincts and the number of registered
before the election officer of the city or municipality voters per precincts in a city or municipality. Without the final
wherein he resides and including the same in the book of Project of Precincts, we cannot even determine the proper
registered voters upon approval by the Election allocation of official ballots, election returns and other election
Registration Board; forms and paraphernalia. More succinctly said, without the
Project of Precincts, we wont know how many forms to print
At this point, it bears emphasis that the provisions of Section and so were liable to come up short.
29 of R.A. 8436 invoked by herein petitioners and Section 8 of
R.A. 8189 volunteered by respondent COMELEC, far from 21) More Importantly, without a completed Project of
contradicting each other, actually share some common ground. Precincts, it will be impossible to complete the rest of the tasks
True enough, both provisions, although at first glance may that must be accomplished prior to the elections.
seem to be at war in relation to the other, are in a more
circumspect perusal, necessarily capable of being harmonized 22) Second, the Board of Elections Inspectors must be
and reconciled. constituted on or before the 4th of March. In addition, the list
of the members of the BEI including the precinct where they
Rudimentary is the principle in legal hermeneutics that changes are assigned and the barangay where that precinct is located -
made by the legislature in the form of amendments to a statute must be furnished by the Election Officer to all the candidates
should be given effect, together with other parts of the and political candidates not later than the 26th of March.
amended act. It is not to be presumed that the legislature, in
making such changes, was indulging in mere semantic 23) Third, the Book of Voters, which contains the approved
exercise. There must be some purpose in making them, which Voter Registration Records of registered voters in particular
should be ascertained and given effect.[9] precinct, must be inspected, verified, and sealed beginning
March 30, until April 15.
Similarly, every new statute should be construed in connection
with those already existing in relation to the same subject 24) Fourth, the Computerized Voters List must be finalized and
matter and all should be made to harmonize and stand together, printed out of use on election day; and finally
if they can be done by any fair and reasonable
interpretation.[10] Interpretare et concordare legibus est 25) Fifth, the preparation, bidding, printing, and distribution of
optimus interpretandi, which means that the best method of the Voters Information Sheet must be completed on or before
interpretation is that which makes laws consistent with other April 15.
laws. Accordingly, courts of justice, when confronted with
apparently conflicting statutes, should endeavor to reconcile 26) With this rigorous schedule of pre-election activities, the
them instead of declaring outright the invalidity of one against Comelec will have roughly a month that will act as a buffer
the other. Courts should harmonize them, if this is possible, against any number of unforeseen occurrences that might delay
because they are equally the handiwork of the same the elections. This is the logic and the wisdom behind setting
legislature.[11] the 120-day prohibitive period. After all, preparing for an
election is no easy task.
In light of the foregoing doctrine, we hold that Section 8 of
R.A. 8189 applies in the present case, for the purpose of 27) To hold special registrations now would, aside from being
upholding the assailed COMELEC Resolution and denying Illegal, whittle that approximately 30-day margin away to
the instant petitions, considering that the aforesaid law nothing.
explicitly provides that no registration shall be conducted
during the period starting one hundred twenty (120) days 28) When we say registration of voters, we do not - contrary to
before a regular election. popular opinion - refer only to the act of going to the Election
Officer and writing our names down. Registration is, In fact, a
Corollarily, it is specious for herein petitioners to argue long process that takes about three weeks to complete not even
that respondent COMELEC may validly and legally counting how long it would take to prepare for the registration
conduct a two-day special registration, through the in the first place.
expedient of the letter of Section 28 of R.A. 8436. To this
end, the provisions of Section 28, R.A. 8436 would come 29) In order to concretize, the senior Staff of the Comelec, the
into play in cases where the pre-election acts are other Commissioners, prepared a time-table in order to see
susceptible of performance within the available period

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exactly how the superimposition of special registration would Truly, in the interpretation of statutes, the interpretation to be
affect the on-going preparation for the May 14 elections. given must be such that it is in accordance with logic, common
sense, reasonableness and practicality. Thus, we are of the
30) We assumed for the sake of argument that we were to hold considered view that the stand-by power of the respondent
the special registration on April 16 and 17. These are not COMELEC under Section 28 of R.A. 8436, presupposes the
arbitrary numbers, by the way it takes in account the fact that possibility of its being exercised or availed of, and not
we only have about 800,000 Voters Registration Forms otherwise.
available, as against an estimated 4.5 million potential
registrants, and it would take about 14 days If we were to Further, petitioners bare allegation that they were
declare special registrations today to print up the difference disenfranchised when respondent COMELEC pegged the
and to verify these accountable forms. After printing and registration deadline on December 27, 2000 instead of January
verification, the forms would have to be packed and shipped - 13, 2001 the day before the period before the May 14, 2001
roughly taking up a further two and a half weeks. Only then regular elections commences is, to our mind, not sufficient. On
can we get on with registration. this matter, there is no allegation in the two consolidated
petitions and the records are bereft of any showing that anyone
31) The first step in registration is, of course, filling the of herein petitioners has filed an application to be registered as
application for registration with the Election Officer. The a voter which was denied by the COMELEC nor filed a
application, according to Section 17 of R.A. 8189, is then set complaint before the respondent COMELEC alleging that he or
for hearing, with notice of that hearing being posted in the city she proceeded to the Office of the Election Officer to register
or municipal bulletin board for at least one week prior. Thus, if between the period starting from December 28, 2000 to
we held registrations on the 16th and the 17th the posting January 13, 2001, and that he or she was disallowed or barred
requirement would be completed by the 24th. Considering that by respondent COMELEC from filing his application for
time must be allowed for the filling of oppositions, the earliest registration. While it may be true that respondent COMELEC
that the Election Registration Board can be convened for set the registration deadline on December 27, 2000, this Court
hearing would be the May 1st and 2nd. is of the Firm view that petitioners were not totally denied the
opportunity to avail of the continuing registration under R.A.
32) Assuming and this is a big assumption that there are nit 8189. Stated in a different manner, the petitioners in the instant
challenges to the applicants right to register, the Election case are not without fault or blame. They admit in their
registration Board can immediately rule on the Applicants petition[18] that they failed to register, for whatever reason,
registration, and post notices of its action by the 2nd until the within the period of registration and came to this Court and
7th of May. By the 10th, copies of the notice of the action invoked its protective mantle not realizing, so to speak, the
taken by the Board will have already been furnished to the speck in their eyes. Impuris minibus nemo accedat curiam. Let
applicants and the heads of registered political parties. no one come to court with unclean hands.

33) Only at this point can our Election Officers once again In a similar vein, well-entrenched is the rule in our jurisdiction
focus on the business of getting ready for the elections. Once that the law aids the vigilant and not those who slumber on
the results of the special registration are finalized, they can be their rights. Vigilantis sed non dormientibus jura in re
encoded and a new Computerized Voters List generated - at the subveniunt.
earliest, by May 11, after which the new CVL would be posted.
Incidentally, it we were to follow the letter of the law strictly, a Applying the foregoing, this court is of the firm view that
May 11 posting date for the new CVL would be improper since respondent COMELEC did not commit an abuse of
the R.A. 8189 provides that the CVL be posted at least 90 days discretion, much less be adjudged to have committed the
before the election. same in some patent, whimsical and arbitrary manner, in
issuing Resolution No. 3584 which, in respondents own
34) Assuming optimistically that we can then finish the terms, resolved to deny the request to conduct a two-day
inspection, verification, and sealing of the Book if Voters by additional registration of new voters on February 17 and
May 15, we will already have overshot the May 14, election 18, 2001.
date, and still not have finished our election preparations.
On this particular matter, grave abuse of discretion implies a
35) After this point, we could have to prepare the allocation of capricious and whimsical exercise of judgment as is equivalent
Official Ballots, Election Returns, and other Non-Accountable to lack of jurisdiction, or, when the power is exercised in an
Forms and Supplies to be used for the new registrants. Once arbitrary or despotic manner by reason of passion or personal
the allocation is ready, the contracts would be awarded, the hostility, and it must be so patent and gross as to amount to an
various forms printed, delivered, verified, and finally shipped evasion of positive duty enjoined or to act at all in
out to the different municipalities. All told, this process would contemplation of laws.[19]
take approximately 26 days, from the 15th of May until June
10. Under these circumstances, we rule that the COMELEC, in
denying the request of petitioners to hold a special registration,
36) Only then can we truly say that we are ready to hold the acted within the bounds and confines of the applicable law on
elections. the matter --Section 8 of RA 8189. In issuing the assailed
Resolution, respondent COMELEC simply performed its
xxx xxx xxx.[14] constitutional task to enforce and administer all laws and
regulations relative to the conduct of an election,[20] inter alia,
It is an accepted doctrine in administrative law that the questions relating to the registration of voters; evidently,
determination of administrative agency as to the operation, respondent COMELEC merely exercised a prerogative that
implementation and application of a law would be accorded chiefly pertains to it and one which squarely falls within the
great weight considering that these specialized government proper sphere of its constitutionally-mandated powers. Hence,
bodies are, by their nature and functions, in the best position to whatever action respondent takes in the exercise of its wide
know what they can possibly do or not do, under prevailing latitude of discretion, specifically on matters involving voters
circumstances. registration, pertains to the wisdom rather than the legality of
the act. Accordingly, in the absence of clear showing of grave
Beyond this, it is likewise well-settled that the law does not abuse of power of discretion on the part of respondent
require that the impossible be done.[15] The law obliges no COMELEC, this Court may not validly conduct an incursion
one to perform an impossibility, expressed in the maxim, nemo and meddle with affairs exclusively within the province of
tenetur ad impossible.[16] In other words, there is no respondent COMELEC a body accorded by no less than the
obligation to do an impossible thing. Impossibilium nulla fundamental law with independence.
obligato est. Hence, a statute may not be so construed as to
require compliance with what it prescribes cannot, at the time, As to petitioners prayer for the issuance of the writ of
be legally, coincidentally[17], it must be presumed that the mandamus, we hold that this Court cannot, in view of the very
legislature did not at all intend an interpretation or application nature of such extraordinary writ, issue the same without
of a law which is far removed from the realm of the possible. transgressing the time-honored principles in this jurisdiction.

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Robiso, Pedro T. Dabu, Jr., Lope E. Feble, Noel T.

As an extraordinary writ, the remedy of mandamus lies Tiampong and Jose Floro Crisologo (collectively,
only to compel an officer to perform a ministerial duty, not petitioners) for the declaration of nullity of the Supreme
a discretionary one; mandamus will not issue to control the Assembly held on February 6, 2010 and (ii) denied the
exercise of discretion of a public officer where the law motion for reconsideration the petitioners subsequently
imposes upon him the duty to exercise his judgment in filed.
reference to any manner in which he is required to act,
because it is his judgment that is to be exercised and not
The petitioners are officials and members of Abakada Guro
that of the court.[21]
Partylist (ABAKADA): Attys. Alcantara, Tiampong and
Considering the circumstances where the writ of mandamus Dabu (Alcantara et. al) are the founding President, Vice
lies and the peculiarities of the present case, we are of the firm President for the Visayas and Secretary, respectively, of
belief that petitioners failed to establish, to the satisfaction of Abakada; while Robiso, Feble and Crisologo have been
this Court, that they are entitled to the issuance of this members of the party since 2007.
extraordinary writ so as to effectively compel respondent
COMELEC to conduct a special registration of voters. For the FACTS:
determination of whether or not the conduct of a special Sometime between January and April 2003, Alcantara, et
registration of voters is feasible, possible or practical within the al., along with their fellow law teachers, organized a party
remaining period before the actual date of election, involves named Advocates and Adherents of Social Justice for
the exercise of discretion and thus, cannot be controlled by School Teachers and Allied Workers. The party has a
mandamus. constitution and by-laws (CBL) and a principal office at the
same location as Atty. Alcantaras law office.3
In Bayan vs. Executive Secretary Zamora and related
cases,[22] we enunciated that the Courts function, as On May 14, 2004, the party name was amended and
sanctioned by Article VIII, Section 1, is merely (to) check changed to Abakada Guro Party list. The change was duly
whether or not the governmental branch or agency has gone
approved by the COMELEC. In the May 2007 elections,
beyond the constitutional limits of its jurisdiction, not that it
where ABAKADA participated and won a seat, Jonathan
erred or has a different view. In the absence of a showing...(of)
grave abuse of discretion amounting to lack of jurisdiction, de la Cruz (De la Cruz), its first nominee, became the
there is no occasion for the Court to exercise its corrective partys sole representative in Congress.4
power... It has no power to look into what it thinks is apparent
error.[23] In a May 5, 2009 letter separately addressed to the
COMELEC and the Speaker of the House of
Finally, the Court likewise takes judicial notice of the fact that Representatives, De la Cruz tendered his "irrevocable"
the President has issued Proclamation No. 15 calling Congress resignation effective December 31, 2009.5 Despite the
to a Special Session on March 19, 2001, to allow the conduct supposed effectivity of his resignation however, De la Cruz
of Special Registration of new voters. House Bill No. 12930 refused to vacate his seat, prompting Alcantara et. al to file
has been filed before the Lower House, which bill seeks to a petition for quo warranto with the Supreme Court. This
amend R.A. 8189 as to the 120-day prohibitive period provided petition was subsequently dismissed for being moot and
for under said law. Similarly, Senate Bill No. 2276[24] was academic.6
filed before the Senate, with the same intention to amend the
aforesaid law and, in effect, allow the conduct of special In several occasions between October and December 2009,
registration before the May 14, 2001 General Elections. This De la Cruz requested Alcantara in writing to convene the
Court views the foregoing factual circumstances as a clear
Supreme Assembly. He informed Alcantara, too, of the
intimation on the part of both the executive and legislative
nationwide party caucuses being held and of the common
departments that a legal obstacle indeed stands in the way of
the conduct by the Commission on Elections of a special sentiment among members that a party meeting should be
registration before the May 14, 2001 General Elections. called. Under ABAKADAs CBL, a Supreme Assembly
meeting should be held at least once every three years;
WHEREFORE, premises considered, the instant petitions for since 2004, no Supreme Assembly had been called and
certiorari and mandamus are hereby DENIED. held.

SO ORDERED. In his letter-response, Alcantara explained that the Supreme

Assembly cannot be held as requested because many of the
members reside in the provinces; the party lacked the funds
POWER TO REGISTER POLITICAL PARTIES; to cover the necessary expenses. Instead, Alcantara replied
ACCREDIT CITIZEN ARMS; SECTION 5 (2) that it would be more "feasible to hold the Supreme
ARTICLE 9-C; SECTION 60 BP 881 Assembly early next year, as may be determined by the
National Executive Board."7 Alcantara added:
1. G.R. No. 203646 April 16, 2013
1. Approval of applications for membership in Abakada is a
SAMSON S. ALCANTARA, ROMEO R. ROBJSO, party matter, and genuine devotion to the advancement of
PEDRO T. DABU, JR., LOPE E. FEBLE, NOEL T. the welfare of the teachers and other school personnel is a
TIAMPONG and JOSE FLORO CRTSOLOGO, basic qualification for membership as prescribed in our
Petitioners, CBL.
vs.
COMMISSION ON ELECTIONS, JONATHAN DE LA 2. Membership identification cards have to be signed by the
CRUZ, ED VINCENT ALBANO and BENEDICT Secretary and the President of ABAKADA.
KATO, Respondents.
xxx
DECISION
Incidentally, we have filed with the Comelec our
BRION, J.: Manifestation to Participate on November 24, 2009.8

Before the Court is a petition for certiorari under Rule 64 in On December 15, 2009, an All Leaders Assembly was
relation with Rule 65 assailing the May 4, 20101 and convened. While Alcantara failed to attend the meeting, he
September 5, 2012 resolutions of the Commission on sent Noel Tiampong in his stead. The convening of a
Elections (COJvfELEC). The assailed rulings (i) dismissed Supreme Assembly was proposed at the meeting, with the
the petition filed by Samson S. Alcantara, Romeo R. agenda of amending the ABAKADA CBL, the election of

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new officers, and the discussion of other election related We find this argument unavailing. While we agree with
matters. The proposal was to hold the meeting sometime in petitioners supposition that only legitimate members of a
February 2010. party may move to determine its destiny, we believe that
petitioners have failed to prove their allegation that the
Accordingly, in a letter dated January 23, 2010, Ed Vincent Supreme Assembly delegates are non-members of the
Albano (Albano), acting as the partys Secretary, notified party. Petitioners offer nothing to corroborate such
the partys chapters and members that the party would hold assertion except the words of Mr. Alcantara himself, which,
its first Supreme Assembly on February 6, 2010 "pursuant to our mind, is self serving, at best. Moreover, we cannot
to the resolution adopted by the party during its First All accept their claim that only those one hundred eight (108)
individuals listed by them should be considered as
Leaders Assembly held last December 15, 2009."9 As legitimate members of ABAKADA Guro. The "Members
scheduled, the respondents proceeded to hold a Supreme Personal Data Cards" that have been submitted by
Assembly that resulted in the approval and ratification of petitioners to confirm the membership of these persons are
the revised ABAKADA CBL; the ouster of Alcantara et. al dated either 2002 or 2003, or during the inception of the
from their positions; the expulsion of the petitioners from party as AASJS, which is at least seven (7) years before the
the party; and the election of De la Cruz and Albano as new Supreme Assembly of 06 February 2010. At best, what
President and Secretary-General, respectively. these documents only evince is that the people listed by
petitioner are members of AASJS or ABAKADA Guro as
This prompted the petitioners to file a petition with the of 2003. They do not prove that the attendees in the
COMELEC to (i) declare the meeting held on February 6, assailed Supreme Assembly are not legitimate members of
2010 void and (ii) restrain the respondents from falsely the party, for it is quite possible and highly probable that
representing themselves as the duly elected officers of several more individuals have become members of the
ABAKADA. party since 2002 and 2003. A party like ABAKADA Guro,
which was able to gain a seat in Congress following the
In their petition, the petitioners alleged that the sending of 2007 elections, could not have remained stagnant as
notices and the holding of a Supreme Assembly were petitioners would have us believe (sic).11
contrary to the partys CBL for not having been authorized
by the President and by the partys National Executive With their recourses at the COMELEC exhausted, the
Board. They alleged that Albano has no authority to sign petitioners now come before this Court on the present
and send notices, much less call a Supreme Assembly, petition for certiorari under Rules 64 and 65 of the Rules of
since he is not the partys Secretary. Likewise, the Court.
membership status of several meeting participants have
neither been approved nor accepted in accordance with the THE PETITION/ISSUES
partys CBL.
The petition alleged that the COMELEC gravely abused its
The respondents defended the validity of the meeting in discretion when it did not consider Alcantaras affidavit,
their comment to the petition. They narrated that between the submitted list of party members, and the attached
September 2009 and February 2010, De la Cruz made individual applications for membership. Since the
several communications to Alcantara to urge him to call a attendance sheets of the participants in the Supreme
general membership meeting and to inform him of the Assembly were submitted to the COMELEC, it could have
consultation meetings and party caucuses being conducted simply compared the submitted lists to determine whether
at the respondents instance in preparation for the May the Supreme Assembly participants are legitimate party
2010 elections. The respondents added that since members.
Alcantaras letter-response merely sought the deferment of
the Supreme Assembly to "early next year"10 i.e., 2010, an Assuming arguendo that the participants in the Supreme
All Leaders Assembly was convened on December 15, Assembly were all party members, the petition further
2009, with prior notice to Alcantara, leading to the alleged that the meeting was not convened in accordance
Supreme Assembly on February 6, 2010. with the partys CBL; thus, the COMELEC should have
granted their petition to declare the Supreme Assembly
COMELEC Rulings meeting void.

The COMELEC Second Division dismissed the petition. It THE RESPONDENTS COMMENT
ruled that the holding of an assembly for purposes of
electing party officers and the amendment of the partys The respondents pray for the dismissal of the petition,
CBL have long been overdue. Under the partys CBL, a submitting that the general membership is empowered to
Supreme Assembly must be convened every three years to take the initiative and call for a Supreme Assembly when
elect officers and to amend or revise the partys CBL. the duly elected officials unjustifiably refused to do so.
Under Alcantaras leadership, no Supreme Assembly was This was what the respondents simply did. Only after
convened since ABAKADAs accreditation in 2004. sending several letters to petitioner Alcantara and only after
a consensus was reached in the All Leaders Assembly in
As members in good standing, therefore, the respondents December 15, 2009 (that the Supreme Assembly be
had every right to ask Alcantara to make a call for a convened), all with prior notices to petitioner Alcantara, did
Supreme Assembly; the respondents even notified him of respondent Albano, acting as Secretary General, sign and
earlier meetings and caucuses being held by the party. send notices to the chapter leaders who are the official
Because of the petitioners (particularly, Alcantaras) representatives of the general membership.
failure, if not outright refusal, to heed the respondents
requests pursuant to the partys CBL, the respondents had The respondents further posit that the petitioners cannot
"good cause" to initiate the holding of the meeting. invoke ABAKADAs CBL in assailing the validity of the
Supreme Assembly because their own refusal to abide by
The petitioners moved for reconsideration of the ruling, the democratic provisions of the CBL (among others, on
mainly questioning the COMELEC Second Divisions electing new officers every three years) is the very violation
failure to address the issue of validity of the Supreme that prompted the conduct of the party proceeding now
Assembly based on the non-membership status of several being assailed.
meeting participants. The COMELEC En Banc denied the
petitioners motion under the following terms: The respondents add that during the hearing on the
registered party-list groups continuing compliance with

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Republic Act No. 7941 and the 1987 Constitution, only With clear jurisdictional authority to resolve the issue
respondent De la Cruz and the present ABAKADA of party leadership and party identity, this Court will
composition participated and submitted the necessary only be justified in interfering with the COMELECs
documentary and testimonial evidence proving the partys action under Rules 64 and 65 of the Rules of Court if
continuing existence and accomplishments for the purpose the petitioners can establish that the COMELEC acted
of party-list accreditation. without or in excess of jurisdiction or with grave abuse
of discretion amounting to lack or excess of jurisdiction.
OUR RULING By grave abuse of discretion is generally meant the
capricious and whimsical exercise of judgment equivalent
We dismiss the petition. to lack of jurisdiction. Mere abuse of discretion is not
enough. It must be grave, as when it is exercised arbitrarily
At the outset, the respondents informed the Court (and the or despotically by reason of passion or personal hostility.
Court takes judicial notice) of the fact that Atty. Alcantara Such abuse must be so patent and so gross as to amount to
is now running for a seat in the Senate under the group an evasion of a positive duty or to a virtual refusal to
Social Justice Society. The respondents claim that by filing perform the duty enjoined or to act at all in contemplation
his certificate of candidacy for the Senate under a different of law.15 The petitioners failed to hurdle this barrier.
party, Alcantara effectively abandoned any claim to the
ABAKADA presidency - the position he seeks to recover The petitioners opened their petition with the principle that
by asking for the nullity of the Supreme Assembly. They only members of a registered party can chart its destiny to
argue that petitioner Alcantaras claim to the presidency of the necessary exclusion of non-members. The COMELEC
ABAKADA, a marginalized and underrepresented party- correctly observed that while this may be true, all that the
list group, is inconsistent with his act of waging an petitioners established is the groups membership as of
expensive national campaign for the Philippine Senate. 2003. The petitioners failed to account for the groups
actual membership at least as of 2009, i.e., five (5) years
We need not dwell at length on this development as this is after ABAKADA was accredited and the year immediately
not a matter that the parties presented and argued before the prior to the Supreme Assembly held in February 2010 and
COMELEC and which that tribunal resolved; there is no the party-list elections of May 2010.
ruling on the matter that is now before us for review.
Additionally, what the petitioners question is petitioner What the petitioners presented are simply applications for
Alcantaras expulsion as a party president and as a member membership with ABAKADA as of November 3, 2003
of the party when he questioned the legality of the holding during the partys inceptive stage, and Alcantaras affidavit
of the Supreme Assembly. This was the matter directly that denies the membership of most of those who attended
litigated before the COMELEC and an issue that the the 2010 Supreme Assembly. Alcantara alleged on this
tribunal directly ruled upon. We can resolve this issue point that:
without need of considering the effect of petitioner
Alcantaras Senate candidacy. 17. Nonetheless, Jonathan de la Cruz proceeded with the
meeting, and in that meeting they removed me and the
We additionally observe that the respondents merely other officers of the party allied with me. That meeting was
informed us of the fact of petitioner Alcantaras Senate illegal because in so far as the participants therein are
candidacy but did not at all attempt to show that by running concerned, I never signed and approved any written
under another group, the Social Justice Society, Alcantara applications for membership. While they may be party
effectively acted prejudicially or to the detriment of the supporters or guests, they are not necessarily members of
interests that ABAKADA seeks to advance. We have not the party. I am listing the names of the participants of that
been likewise directed to any provision in the meeting here in an alphabetical order for easy reference as
ABAKADAs CBL that would support the respondents follows:
claim of inconsistency between ABAKADA leadership and
filing of a certificate of candidacy in the Senate. xxx

Hence, petitioner Alcantaras Senate candidacy is a non- 18. These names were culled from the attendance sheets
issue in the present case. submitted by the group of Jonathan de la Cruz before the
Legal Department of the COMELEC. Except for a few,
Valid reasons exist to oust they did not submit their applications for membership to me
as President of the Party; I did not approve their
petitioner Alcantara from ABAKADA membership; neither the National Executive Board, the
policy making body of the party, had seen any written
Under the Constitution, the COMELEC is empowered to application from any of them nor have approved of their
register political parties.12 More specifically, as part of membership into the party.
its power to enforce and administer laws relative to the
conduct of an election, the COMELEC possesses the The petitioners have not pointed out the basis for such
power to register national, regional, and sectoral parties broad claim of authority by Alcantara. Under Article IV
or organizations or coalitions for purposes of the party- (Membership) of ABAKADAs CBL,16 however, the
list system of elections.13 It is the party-list groups President or the National Executive Board is not given the
registration under the party-list system that confers exclusive authority to approve applications for party
juridical personality on the party-list group for election membership. Such applications are approved by the
related purposes.14 membership council in the municipal, city, provincial or
regional levels.17 In turn each municipal unit is entitled to
As a juridical entity, a party-list group can only validly act two delegates to the Supreme Assembly while each
through its duly authorized representative/s. In the exercise provincial or city unit is entitled to five delegates.18
of its power to register parties, the COMELEC necessarily
possesses the power to pass upon the question of who, Given ABAKADAs membership structure, Alcantaras
among the legitimate officers of the party-list group, are own affidavit and the approved membership applications
entitled to exercise the rights and privileges granted to a during the ABAKADAs earliest stage are certainly not
party-list group under the law. The COMELECs sufficient to support the petitions opening legal principle.
jurisdiction on this point is well settled and is not here As the party seeking to nullify the conduct of the Supreme
disputed. Assembly, the petitioners must first clearly substantiate
their allegation on who the legitimate members of

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ABAKADA were at the time Supreme Assembly was held. assemble the leaders, as well as members of the party,
After this failure, the COMELEC cannot be faulted, much for the coming May 2010 elections." This call, to our
less be charged with committing grave abuse of discretion, mind, is far from unreasonable and was in fact a
in ruling that petitioners failed to discharge its burden of practical approach to a coming political exercise.
proving that the attendees in the Supreme Assembly were
not legitimate members of the party. Unfortunately, all the respondents communications appear
to have fallen on deaf ears. Instead, the petitioners chose to
We remind the petitioners that the findings of fact of the cling to legal technicalities under the partys constitution
COMELEC are generally binding on the Court, unless its over the provisions of the same constitution that promotes
factual conclusions are clearly shown to be unsupported by democratic accountability within the party. As the
substantial evidence.19 The petitioners have not COMELEC did, the Court cannot certainly give primacy to
demonstrated that its case fall within this narrow exception. matters of procedure over substance in ABAKADAs CBL
especially after the general membership has spoken.
Even assuming that all participants in the 2010 Supreme
Assembly are legitimate members of the party, the The COMELEC, in the exercise of its jurisdiction to
petitioners claim that since the Supreme Assembly meeting resolve party leadership disputes, has rendered its
did not comply with the provisions of the partys CBL, then ruling. By failing to establish grave abuse of discretion
the COMELEC should have granted their petition to nullify on the part of the COMELEC, this Court can do no less
the meeting. than dismiss this petition and allow ABAKADA as a
sectoral party to determine its own affairs under its
Again, we disagree with the petitioners. present leadership.

While ABAKADA is registered as a sectoral party, the WHEREFORE, premises considered, we hereby DISMISS
general principles applicable to political parties as a the petition.
voluntary association apply to it. Political parties constitute
a basic element of our democratic institutional apparatus.20 SO ORDERED.
Among others, political parties help stimulate public
participation in the political arena and translate the results 2. G.R. No. 204591 April 16, 2013
of this participation into meaningful policies and programs
of government offered to the electorate. Once in AGAPAY NG INDIGENOUS PEOPLES RIGHTS
government, they are able to significantly contribute in ALLIANCE (A-IPRA), Petitioner,
forging linkages between the government and the society vs.
by adjusting these policies with the varying and often COMMISSION ON ELECTIONS, MELVIN G. LOTA,
conflicting interests of the different segments of society. MAC-MAC BERNALES, MARY ANNE P. SANTOS,
Should they belong to the minority, they also provide a JEAN ANNABELL S. GAROTA, JOSEPH T.
check to counterbalance those who are in power. EVANGELISTA, ET AL. Respondents.

For these reasons, particularly, for the role they play in the RESOLUTION
general political process, political parties are generally free
to conduct its internal affairs pursuant to its REYES, J.:
constitutionally-protected right to free association.21
This is a petition for certiorari1 filed under Rule 64, in
This includes the determination of the individuals who shall relation to Rule 65 of the Rules of Court, seeking to annul
constitute the association and the officials who shall lead and set aside the Resolution2 dated November 7, 2012 of
the party in attaining its goals.22 The political parties, the Commission on Elections (COMELEC) in SPP Case
through their members, are free to adopt their own No. 12-292 (PLM).
constitution and by-laws that contain the terms governing
the group in pursuing its goals. These terms, include the FACTS:
terms in choosing its leaders and members, among others. Petitioner Agapay ng Indigenous Peoples Rights Alliance
To the group belongs the power to adopt a constitution; to (A-IPRA) is a sectoral political party whose primordial
them likewise belongs the power to amend, modify or objectives are the recognition, protection and promotion of
altogether scrap it. the rights of the indigenous people.3 It was allowed
registration and accreditation by the COMELEC Second
The petitioners argument is contrary to these basic tenets. Division in its Resolution4 dated January 13, 2010 in SPP
If the validity of the Supreme Assembly would completely Case No. 09-214 (PL), which reads:
depend on the person who calls the meeting and on the
person who sends the notice of the meeting who are As borne by the evidence, petitioner has ably complied
petitioners Alcantara and Dabu themselves then the procedurally and substantially with the requirements of
petitioners would be able to perpetuate themselves in power Republic Act No. 7941 or Party-List Law as well as with
in violation of the very constitution whose violation they the guidelines enumerated in the case of Ang Bagong
now cite. This kind of result would strike at the heart of Bayani vs. Comelec. It has coordinators in almost all of the
political parties as the "basic element of the democratic provinces and cities of Region III.
institutional apparatus." This potential irregularity is what
the COMELEC correctly prevented in ruling for the Petitioner committed itself to protect and work for the
dismissal of the petition. betterment of the underrepresented and marginalized sector
of indigenous peoples by ensuring that their rights, cultural
As the COMELEC correctly observed, ABAKADAs communities and ancestral domains are accorded priority
constitution expressly requires the convening of the and recognition. Petitioner likewise committed itself to
Supreme Assembly once every three years for purposes promote the culture of the indigenous people through
of (i) electing the members of the National Executive education and the delivery of basic services to the
Board - the governing body of ABAKADA - headed by indigenous cultural communities. Its track record is
petitioner Alcantara as President.23 In contravention of manifested by its active advocacy for the passage of the
ABAKADAs own constitution, no Supreme Assembly IPRA Law (Republic Act No. 8371) by conducting a series
was ever held since ABAKADA came into existence in of campaigns and seminars to educate and inform the
2003, prompting the respondents to communicate with indigenous people of their rights. When the
petitioner Alcantara to urge him "to call for and constitutionality of Republic Act No. 8371 or the

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Indigenous Peoples Rights Act was challenged before the (3) Consolacion B. Abad, Vice Chairman for External
Courts, petitioner A-IPRA gave valuable inputs to the Affairs
National Commission on Indigenous Peoples, resulting in
the dismissal of the petition to declare said law (4) Jordan P. Cimafranca, Secretary General
unconstitutional.
(5) Oscar D. Celeste, Treasurer
Moreover, it has supported, defended and lobbied for the
passage of laws for the protection and promotion of the (6) Thomas A. Siy, III, Auditor
rights of indigenous people in Congress.
(7) Frances Trina A. Salvante, Public Relations Officer8
With these, we are convinced that petitioner can truly
promote the interests and concerns of the section which its Subsequently, on August 2, 2012, the COMELEC en banc
seeks to represent and uplift their living conditions. issued Resolution No. 9513 entitled "In the Matter of: (1)
the automatic review by the Commission En Banc of
WHEREFORE, in view of the foregoing, the petitions [sic] pending petitions for registration of party-list groups; and
for registration filed by AGAPAY NG INDIGENOUS (2) setting for hearing the accredited party-list groups or
PEOPLES RIGHTS ALLIANCE, INC. (A-IPRA) is organizations which are existing and which have filed
GRANTED. Accordingly, the Clerk of the Commission is manifestations of intent to participate in the 2013 national
hereby directed to prepare the necessary certification and local elections." Pursuant thereto, the COMELEC
declaring A-IPRA as a duly registered and accredited resolved to review and affirm the grant of registration and
regional sectoral party with all the rights and privileges accreditation to party-list groups and organizations in order
under the law.5 that it may fulfill its role of ensuring that only those parties,
groups or organizations with the requisite character
A-IPRA participated in the May 2010 elections, with the consistent with the purpose of the party-list system are
following as nominees and officers (Insigne Group), registered and accredited to participate in the party-list
namely: system of representation. It also suspended the application
of Section 19 of the COMELEC Rules of Procedure which
Nominees: pertains to the filing of a motion for reconsideration.

(1) Atty. Eugenio A. Insigne MNSA On August 9, 2012, the COMELEC en banc issued an
Order, requiring A-IPRA to appear before them to present
(2) Atty. Gregorio A. Andolana documentary evidence which will establish its continuing
compliance with the requirements set forth under Republic
(3) Atty. Pablo S. Bernardo6 Act No. 7941 (R.A. No. 7941) and the guidelines in Ang
Bagong Bayani-OFW Labor Party v. COMELEC.9
Officers:
On October 11, 2012, the Insigne Group, under the name of
(1) Ruben R. Sison, President A-IPRA, filed a Petition for Intervention with Opposition to
the Nomination filed by Bogus Officers of A-IPRA.10
(2) Ricardo B. Rivera, Vice President for External Affairs They alleged that their members remain the legitimate
nominees and officers of A-IPRA as they were never
(3) Larry G. Ramos, Vice President for Internal Affairs replaced in accordance with procedure stated in the by-laws
of the organization. Further, they pointed out that the
(4) Oscar B. Rivera, Public Information Officer members of the Lota Group are complete strangers to the
organization and that their names do not appear in the
(5) Ronnie T. Dizon, Secretary roster of A-IPRA membership. Even more, they do not
appear to be members of the indigenous cultural
(6) Antonio M. Sumilang, Treasurer7 communities/indigenous people as they are all residents of
Metro Manila and are unknown to the members of A-IPRA.
Unfortunately, the group failed to muster the necessary Finally, they charged the Lota Group of submitting fake
number of votes to obtain a seat in Congress. documents which contained forged signatures.11 Thus,
they prayed that the Lota Group be disqualified as
On May 31, 2012, A-IPRA filed a Manifestation of Intent nominees and officers of A-IPRA and that they be
to Participate in the May 2013 Elections with the recognized as the legitimate nominees and officers of the
COMELEC. Appended in the manifestation is a new list of group and be allowed to participate in the May 2013
nominees and officers (Lota Group), consisting of the elections.12
following individuals:
The COMELEC En Bancs Ruling
Nominees:
On November 7, 2012, the COMELEC en banc issued the
(1) Melvin G. Lota assailed Resolution,13 cancelling the registration and
accreditation of A-IPRA. The pertinent portions of the
(2) Mac-Mac Bernales resolution state:

(3) Mary Anne P. Santos In the instant case, A-IPRA failed to convince the
Commission that it has satisfied the aforequoted guidelines
(4) Jean Annabell S. Garota pertaining to party-list nominees. It did not submit proof
that would establish that the said nominees are indeed
(5) Joseph T. Evangelista indigenous people; have actively participated in the
undertakings of A-IPRA; truly adhere to its advocacies; and
Officers: most of all, that the said nominees are its bona fide
members. It focused solely on presenting its track
(1) Antonio S. Abad, Chairman record/activities. It overlooked the fact that nominees also
play a significant role in every party-list groups
(2) Jennita G. Bascones, Vice Chairman for Internal Affairs accreditation/registration.

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As they say, representation is easy to claim and to feign. COMELEC to determine who are qualified to register
The Commission is thus determined to evaluate with under the partylist system, and to participate in the coming
utmost caution not only the petitions for registration of new 13 May 2013 party-list elections, under the new parameters
party-list aspirants but also the accreditation of the existing prescribed in this Decision.17
party-list groups. This goes without saying that substantial
compliance of the rules has no place in this so-called With a definite ruling of this Court on the absence of grave
"cleansing" of the party-list groups. Thus, no matter how abuse of discretion in the consolidated cases of Atong
noble the intention of A-IPRA to represent the Paglaum, the instant petition had become moot and
marginalized and underrepresented sector of indigenous academic and must therefore be dismissed.
people, its registration should still be cancelled for failure
to comply with items 6, 7 and 8 of the Eight-Point As regards the legitimacy of the nomination of the Lota
Guideline enunciated in Ang Bagong Bayani. Group raised by the Insigne group in their petition for
intervention and opposition, the same is more aptly
WHEREFORE, premises considered, the Commission en addressed to the COMELEC. The determination of who is
banc RESOLVED, as it hereby RESOLVES, to CANCEL the rightful representative of a political party or the
the registration/accreditation of A-IPRA. legitimate nominee of a party-list group lies with the
COMELEC, as part and parcel of its constitutional task of
SO ORDERED.14 registering political parties, organizations and coalitions
under Section 2(5),18 Article IX(C) of the 1987
On December 13, 2012, the Insigne Group filed the instant Constitution.
petition with this Court, claiming that the COMELEC
gravely abused its discretion in issuing Resolution dated In Laban ng Demokratikong Pilipino v. COMELEC,19 this
November 7, 2012 and reiterating their prayer to be Court held that the COMELEC correctly ruled that "the
recognized as the legitimate nominees and officers of A- ascertainment of the identity of a political party and its
IPRA. legitimate officers is a matter that is well within its
authority. The source of this authority is no other than the
ISSUE: fundamental law itself, which vests upon the COMELEC
the power and function to enforce and administer all laws
WHETHER THE COMELEC GRAVELY ABUSED ITS and regulations relative to the conduct of an election."20
DISCRETION IN ISSUING RESOLUTION DATED
NOVEMBER 7, 2012. Apparently, the COMELEC failed to resolve the issue
of the legitimacy of the nomination of the Lota Group in
RULING: its Resolution dated November 7, 2012 and this was
raised as an issue by the Insigne Group in the instant
It is a well-settled principle that this Courts jurisdiction to petition. However, with the remand of all the petitions
review decisions and orders of electoral tribunals is to the COMELEC and the directive for it to
exercised only upon showing of grave abuse of discretion redetermine the qualifications of the petitioning party-
committed by the tribunal; otherwise, the Court shall not list groups, it is only appropriate that the Insigne Group
interfere with the electoral tribunals exercise of its present their challenge to the legitimacy of the Lota
discretion or jurisdiction. Grave abuse of discretion has Groups nomination before the Commission to give it
been defined as the capricious and whimsical exercise of the opportunity to rule on the matter at the same time
judgment, the exercise of power in an arbitrary manner, that it reevaluates A-IPRAs qualifications to run in the
where the abuse is so patent and gross as to amount to an May 2013 elections based on the new set of guidelines in
evasion of positive duty.15 Atong Paglaum.

The Insigne Group impute grave abuse of discretion on the WHEREFORE, the instant petition is DISMISSED for
part of the COMELEC in issuing Resolution dated having become moot and academic.
November 7, 2012 which cancelled A-IPRAs
registration/accreditation on the ground of disqualification SO ORDERED.
of its nominees. This issue, however, had already been
resolved by this Court in Atong Paglaum, Inc. v. 3. G.R. No. 221318, December 16, 2015
Commission on Elections.16 It is well to remember that the
Lota Group also filed a separate petition for certiorari with KABATAAN PARTY-LIST, REPRESENTED BY
this Court, challenging the same resolution of the REPRESENTATIVE JAMES MARK TERRY L.
COMELEC. The said petition was docketed as G.R. No. RIDON AND MARJOHARA S. TUCAY; SARAH
204125 and was consolidated with several other cases JANE I. ELAGO, PRESIDENT OF THE NATIONAL
questioning similar issuances by the COMELEC. UNION OF STUDENTS OF THE PHILIPPINES;
Eventually, the Court resolved the consolidated cases in VENCER MARI E. CRISOSTOMO, CHAIRPERSON
Atong Paglaum by upholding the validity of the issuances OF THE ANAKBAYAN; MARC LINO J. ABILA,
of the COMELEC, albeit, ordering that all the petitions be NATIONAL PRESIDENT OF THE COLLEGE
remanded to the COMELEC for reevaluation of the EDITORS GUILD OF THE PHILIPPINES; EINSTEIN
qualifications of the party-list groups based on the new set Z. RECEDES, DEPUTY SECRETARY- GENERAL
of parameters laid down in the mentioned decision. OF ANAKBAYAN; CHARISSE BERNADINE I.
BAEZ, CHAIRPERSON OF THE LEAGUE OF
In Atong Paglaum, the Court specifically ruled that the FILIPINO STUDENTS; ARLENE CLARISSE Y.
COMELEC did not gravely abuse its discretion, thus: JULVE, MEMBER OF ALYANSA NG MGA
GRUPONG HALIGI NG AGHAM AT
We hold that the COMELEC did not commit grave abuse TEKNOLOHIYA PARA SA MAMAMAYAN
of discretion in following prevailing decisions of this Court (AGHAM); AND SINING MARIA ROSA L.
in disqualifying petitioners from participating in the coming MARFORI, Petitioners, v. COMMISSION
13 May 2013 party-list elections. However, since the Court ELECTIONS, ON, Respondent.
adopts in this Decision new parameters in the qualification
of national, regional, and sectoral parties under the party- DECISION
list system, thereby abandoning the rulings in the decisions
applied by the COMELEC in disqualifying petitioners, we PERLAS-BERNABE, J.:
remand to the COMELEC all the present petitions for the

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Rights beget responsibilities; progress begets change. On July 1, 2013, the COMELEC, pursuant to the aforesaid
Resolution, commenced the mandatory biometric system of
registration. To make biometric registration convenient and
Before the Court is a petition for certiorari and prohibition1 accessible to the voting public, aside from the COMELEC
filed by herein petitioners Kabataan Party-List, represented offices in every local government unit, it likewise
by Representative James Mark Terry L. Ridon and National established satellite registration offices in barangays and
President Marjohara S. Tucay; Sarah Jane I. Elago, mails.26
President of the National Union of Students of the
Philippines; Veneer Mari E. Crisostomo and Einstein Z. On April 1, 2014, the COMELEC issued Resolution No.
Recedes, Chairperson and Deputy Secretary-General of 986327 which amended certain portions28 of Resolution
Anakbayan, respectively; Marc Lino J. Abila, National No. 985329 dated February 19, 2014, by stating that ERBs
President of the College Editors Guild of the Philippines; shall deactivate the VRRs of those who "failed to submit
Charisse Bernadine I. Baez, Chairperson of the League of for validation despite notice on or before October 31,
Filipino Students; Arlene Clarisse Y. Julve, member of 2015," and that the "[d]eactivation for cases falling under
Alyansa ng mga Grupong Haligi ngAgham at Teknolohiya this ground shall be made during the November 16, 2015
para sa Mamamayan (AGHAM); and Sining Maria Rosa L. Board hearing."30
Marfori (petitioners) assailing the constitutionality of
Republic Act No. (RA) 10367, entitled "An Act Providing A month later, or in May 2014, the COMELEC launched
for Mandatory Biometrics Voter Registration,"2 as well as the NoBio-NoBoto public information campaign which ran
respondent Commission on Elections (COMELEC) concurrently with the period of continuing registration.31
Resolution Nos. 9721,3 9863,4 and 10013,5 all related
thereto. On November 3, 2015, the COMELEC issued Resolution
No. 1001332 which provides for the "procedures in the
FACTS: deactivation of [VRRs] who do not have biometrics data in
the [VRS] after the October 31, 2015 deadline of
On February 15, 2013, President Benigno S. Aquino III registration and validation."33 Among others, the said
signed into law RA 10367, which is a consolidation of Resolution directed the EOs to: (a) "[p]ost the lists of voters
House Bill No. 3469 and Senate Bill No. 1030, passed by without biometrics data in the bulletin boards of the
the House of Representatives and the Senate on December City/Municipal hall, Office of the Election Officer and in
11, 2012 and December 12, 2012,6 respectively. the barangay hall along with the notice of ERB hearing;"
Essentially, RA 10367 mandates the COMELEC to and (b) "[s]end individual notices to the affected voters
implement a mandatory biometrics registration system for included in the generated list of voters without biometrics
new voters7 in order to establish a clean, complete, data."34 It also provides that "[a]ny opposition/objection to
permanent, and updated list of voters through the adoption the deactivation of records shall be filed not later than
of biometric technology.8 RA 10367 was duly published on November 9, 2015 in accordance with the period prescribed
February 22, 2013,9 and took effect fifteen (15) days in Section 4,35 [Chapter I,] Resolution No. 9853."36
after.10 During the ERB hearing, which proceedings are summary
in nature,37 "the ERBs shall, based dn the list of voters
RA 10367 likewise directs that "[r]egistered voters whose without biometrics data, order the deactivation of
biometrics have not been captured shall submit themselves registration records on the ground of 'failure to validate.'"38
for validation."11 "Voters who fail to submit for validation Thereafter, EOs were required to "[s]end individual notices
on or before the last day of filing of application for to the deactivated voters within five (5) days from the last
registration for purposes of the May 2016 [E]lections shall day of ERB hearing."39 Moreover, Resolution No. 10013
be deactivated x x x."12 Nonetheless, voters may have their clarified that the "[Registration records of voters with
records reactivated after the May 2016 Elections, provided incomplete biometrics data and those corrupted data
that they comply with the procedure found in Section 2813 (biometrics) in the database shall not be deactivated and be
of RA 8189,14 also known as "The Voter's Registration Act allowed to vote in the May 9, 2016 Synchronized National,
of 1996."15 Local and [Autonomous Region on Muslim Mindanao
(ARMM)] Regional Elections."40
On June 26, 2013, the COMELEC issued Resolution No.
972116 which serves as the implementing rules and On November 25, 2015, herein petitioners filed the instant
regulations of RA 10367, thus, prescribing the procedure petition with application for temporary restraining order
for validation,17 deactivation,18 and reactivation of voters' (TRO) and/or writ of preliminary mandatory injunction
registration records (VRRs).19 Among others, the said (WPI) assailing the constitutionality of the biometrics
Resolution provides that: (a) "[t]he registration records of validation requirement imposed under RA 10367, as well as
voters without biometrics data who failed to submit for COMELEC Resolution Nos. 9721, 9863, and 10013, all
validation on or before the last day of filing of applications related thereto. They contend that: (a) biometrics validation
for registration for the purpose of the May 9, 2016 National rises to the level of an additional, substantial qualification
and Local Elections shall be deactivated in the last where there is penalty of deactivation;41 (b) biometrics
[Election Registration Board (ERB)] hearing to be deactivation is not the disqualification by law contemplated
conducted prior to said elections";20 (b) "[t]he following by the 1987 Constitution;42 (c) biometrics validation
registered voters shall have their biometrics data validated: gravely violates the Constitution, considering that, applying
[(1)] Those who do not have BIOMETRICS data appearing the strict scrutiny test, it is not poised with a compelling
in the Voter['s] Registration System (VRS); and [(2)] Those reason for state regulation and hence, an unreasonable
who have incomplete BIOMETRICS data appearing in the deprivation of the right to suffrage;43 (d) voters to be
VRS";21 (c) "[d]eactivated voters shall not be allowed to deactivated are not afforded due process;44 and (e) poor
vote";22 and (d) "[d]eactivation x x x shall comply with the experience with biometrics should serve as warning against
requirements on posting, ERB hearing and service of exacting adherence to the system.45 Albeit already subject
individual notices to the deactivated voters."23 Resolution of a prior petition46 filed before this Court, petitioners also
No. 9721 further states that, as of the last day of registration raise herein the argument that deactivation by November
and validation for the 2013 Elections on October 31, 2012, 16, 2015 would result in the premature termination of the
a total of 9,018,256 registered voters were without registration period contrary to Section 847 of RA 8189.48
biometrics data.24 Accordingly, all Election Officers (EOs) Ultimately, petitioners pray that this Court declare RA
were directed to "conduct [an] information campaign on the 10367, as well as COMELEC Resolution Nos. 9721, 9863,
conduct of validation."25cralawred and 10013, unconstitutional and that the COMELEC be
commanded to desist from deactivating registered voters

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without biometric information, to reinstate voters who are our country. If there is anything capable of directly
compliant with the requisites of RA 8189 but have already affecting the lives of ordinary Filipinos so as to come
been delisted, and to extend the system of continuing within the ambit of a public concern, it is the coming
registration and capture of biometric information of voters elections, [x x x.]
until January 8, 2016.49 Thus, in view of the compelling significance and
transcending public importance of the issues raised by
On December 1, 2015, the Court required the COMELEC petitioners, the technicalities raised by respondents should
to file its comment to the petition. Meanwhile, it issued a not be allowed to stand in the way, if the ends of justice
TRO requiring the COMELEC to desist from deactivating would not be subserved by a rigid adherence to the rules of
the registration records of voters without biometric procedure. (Emphasis and underscoring supplied)
information, pending resolution of the case at hand.50 Furthermore, the issue on whether or not the policy on
biometrics validation, as provided under RA 10367 and
On December 7, 2015, COMELEC Chairman Juan Andres fleshed out in the assailed COMELEC Resolutions, should
D. Bautista, through a letter51 addressed to the Court En be upheld is one that demands immediate adjudication in
Banc, urgently appealed for the immediate lifting of the view of the critical preparatory activities that are currently
above-mentioned TRO, stating that the COMELEC is set to being undertaken by the COMELEC with regard to the
finalize the Project of Precincts (POP) on December 15, impending May 2016 Elections. Thus, it would best
2015, and that the TRO issued in this case has the effect of subserve the ends of justice to settle this controversy not
including the 2.4 Million deactivated voters in the list of only in order to enlighten the citizenry, but also so as not to
voters, which, in turn, would require revisions to the POP stymy the operations of a co-constitutional body. As
and consequently, adversely affect the timelines of all other pronounced in Roque, Jr. v. COMELEC:62
interrelated preparatory activities to the prejudice of the [T]he bottom line is that the Court may except a particular
successful implementation of the Automated Election case from the operations of its rules when the demands of
System (AES) for the 2016 Elections.52 justice so require. Put a bit differently, rules of procedure
are merely tools designed to facilitate the attainment of
On December 11, 2015, the COMELEC, through the Office justice. Accordingly, technicalities and procedural barriers
of the Solicitor General, filed its comment53 to the instant should not be allowed to stand in the way, if the ends of
petition. On even date, petitioners filed a manifestation54 justice would not be subserved by a rigid adherence to the
asking the Court to continue the TRO against the rules of procedure.63ChanRoblesVirtualawlibrary
deactivation of voters without biometric information.55 That being said, the Court now proceeds to resolve the
substantive issues in this case.
With no further pleadings required of the parties, the case
was submitted for resolution. II.

ISSUE: Essentially, the present petition is a constitutional challenge

The core issue in this case is whether or not RA 10367, as against the biometrics validation requirement imposed
well as COMELEC Resolution Nos. 9721, 9863, and under RA 10367, including COMELEC Resolution Nos.
10013, all related thereto, are unconstitutional. 9721, 9863, and 10013. As non-compliance with the same
results in the penalty of deactivation, petitioners posit that it
RULING: has risen to the level of an unconstitutional substantive
requirement in the exercise of the right of suffrage.64 They
The petition is bereft of merit. submit that the statutory requirement of biometric
validation is no different from the unconstitutional
I. requirement of literacy and property because mere non-
validation already absolutely curtails the exercise of the
At the outset, the Court passes upon the procedural right of suffrage through deactivation.65 Further, they
objections raised in this case. In particular, the advance the argument that deactivation is not the
COMELEC claims that petitioners: (a) failed to disqualification by law contemplated as a valid limitation to
implead the Congress, the Office of the President, and the exercise of suffrage under the 1987 Constitution.66
the ERB which it purports are indispensable parties to
the case;56 (b) did not have the legal standing to The contestation is untenable.
institute the instant petition;57 and (c) erroneously
availed of certiorari and prohibition as a mode of As early as the 1936 case of The People of the Philippine
questioning the constitutionality of RA 10367 and the Islands v. Corral,67 it has been recognized that "[t]he right
assailed COMELEC Resolutions.58 to vote is not a natural right but is a right created by law.
Suffrage is a privilege granted by the State to such persons
The submissions do not hold. or classes as are most likely to exercise it for the public
good. In the early stages of the evolution of the
Recognizing that the petition is hinged on an important representative system of government, the exercise of the
constitutional issue pertaining to the right of suffrage, the right of suffrage was limited to a small portion of the
Court views the matter as one of transcendental public inhabitants. But with the spread of democratic ideas, the
importance and of compelling significance. Consequently, enjoyment of the franchise in the modern states has come to
it deems it proper to brush aside the foregoing procedural embrace the mass of the audit classes of persons are
barriers and instead, resolve the case on its merits. As excluded from the franchise."68
resonated in the case of Pabillo v. COMELEC,59 citing
Capalla v. COMELEC60 and Guingona, Jr. v. Section 1, Article V of the 1987 Constitution delineates
COMELEC:61 the current parameters for the exercise of suffrage:
There can be no doubt that the coming 10 May 2010 [in Section 1. Suffrage may be exercised by all citizens of
this case, the May 2016] elections is a matter of great the Philippines not otherwise disqualified by law, who
public concern. On election day, the country's registered are at least eighteen years of age, and who shall have
voters will come out to exercise the sacred right of suffrage. resided in the Philippines for at least one year and in the
Not only is it an exercise that ensures the preservation of place wherein they propose to vote for at least six
our democracy, the coming elections also embodies our months immediately preceding the election. No literacy,
people's last ounce of hope for a better future. It is the final property, or other substantive requirement shall be
opportunity, patiently awaited by our people, for the imposed on the exercise of suffrage.
peaceful transition of power to the next chosen leaders of

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Dissecting the provision, one must meet the following few months ago declared unconstitutional any state law that
qualifications in order to exercise the right of suffrage: first, would continue to impose this requirement for voting.
he must be a Filipino citizen; second, he must not be
disqualified by law; and third, he must have resided in the xxxx
Philippines for at least one (1) year and in the place
wherein he proposes to vote for at least six (6) months It is to be noted that all those who testified before the
immediately preceding the election. Committee favoured the elimination of the literacy
requirement. It must be stressed that those witnesses
The second item more prominently reflects the franchised represented all levels of society x x x.
nature of the right of suffrage. The State may therefore
regulate said right by imposing statutory disqualifications, Sponsorship Speech of Delegate Ordoez
with the restriction, however, that the same do not amount
to, as per the second sentence of the provision, a "literacy, x x x in the process, as we evolve, many and more of our
property or other substantive requirement." Based on its people were left to the sidelines because they could no
genesis, it may be gleaned that the limitation is geared longer participate in the process of government simply
towards the elimination of irrelevant standards that are because their ability to read and write had become
purely based on socio-economic considerations that have inadequate. This, however, did not mean that they were no
no bearing on the right of a citizen to intelligently cast his longer responsive to the demands of the times, that they
vote and to further the public good. were unsensible to what was happening among them. And
so in the process as years went on, conscious efforts were
To contextualize, the first Philippine Election Law, Act made to liberate, to free these persons who were formerly
No. 1582, which took effect on January 15, 1907, entitled in the course of election by means of whittling
mandated that only men who were at least twenty-three away the requirements for the exercise of the right to vote.
(23) years old and "comprised within one of the First of all, was the property requirement. There were times
following three classes" were allowed to vote: (a) those in the English constitutional history that it was common to
who prior to the 13th of August, 1898, held the office of say as an answer to a question, "Who are entitled to vote?"
municipal captain, governadorcillo, alcalde, lieutenant, that the following cannot vote - - criminals, paupers,
cabeza de barangay, or member of any ayuntamiento; members of the House of Lords. They were landed together
(b) those who own real property to the value of P500.00, at the same figurative category.
or who annually pay P30.00 or more of the established
taxes; and (c) those, who speak, read, and write English Eventually, with the wisdom of the times, property
or Spanish. requirement was eliminated but the last remaining vestige
which bound the members of the community to ignorance,
When the 1935 Constitution was adopted, the minimum which was the persistence of this requirement of literacy
voting age was lowered to twenty-one (21) and the remained. And this is again preserved in our Constitution,
foregoing class qualification and property requirements in our Election Code, which provides that those who cannot
were removed.69 However, the literacy requirement prepare their ballots themselves shall not be qualified to
was retained and only men who were able to read and vote.
write were given the right to vote.70 It also made
women's right to vote dependent on a plebiscite held for xxxx
such purpose.71
Unless you remove this literacy test, the cultural minorities,
During the 1971 Constitutional Convention, the the underprivileged, the urban guerrillas will forever be
delegates decided to remove the literacy and property outcasts of our society, irresponsive of what is happening.
requirements to broaden the political base and And if this condition were to continue, my friends, we
discontinue the exclusion of millions of citizens from the cannot fully claim that we have representative democracy.
political systems:72 Let us reverse the cycle. Let us eliminate the social
Sponsorship Speech of Delegate Manglapus imbalance by granting to these persons who are very
responsible the right to participate in the choice of the
DELEGATE MANGLAPUS: Mr. President, the draft persons who are to make their laws for them. (Emphases
proposal, the subject matter of Report No. 11 contains supplied)
amendments that are designed to improve Article V on As clarified on interpellation, the phrase "other substantive
suffrage and to broaden the electoral base of our country. requirement" carries the same tack as the other standards
The three main points that are taken up in this draft which alienating particular classes based on socio-economic
will be developed in the sponsorship speeches that will considerations irrelevant to suffrage, such as the payment
follow might need explanatory remarks, x x x. of taxes. Moreover, as particularly noted and as will be
xxxx later elaborated on, the phrase did not contemplate any
restriction on procedural requirements, such as that of
(2) The present requirement, reading and writing, is registration:
eliminated and instead a provision is introduced which DELEGATE DE LOS REYES: On page 2, Line 3, the
says, "No literacy, property, or other substantive following appears:
requirement shall be imposed on the exercise of suffrage;" "For other substantive requirement, no literacy[,] property,
or other substantive requirement shall be imposed on the
xxxx exercise of suffrage."
The draft before us is in keeping with the trend towards the just what is contemplated in the phrase, "substantive
broadening of the electoral base already begun with the requirement?"
lowering of the voting age to 18, and it is in keeping further
with the Committee's desire to discontinue the alienation DELEGATE OCCEA: I can answer that, but it belongs to
and exclusion of millions of citizens from the political the sphere of someone else in the Committee. We use this
system and from participation in the political life of the term as distinguished from procedural requirements. For
country. The requirement of literacy for voting is instance, the law cannot come in and say that those who
eliminated for it is noted that there are very few countries should be allowed to vote should have paid certain taxes.
left in the world where literacy remains a condition for That would be a substantial requirement in addition to what
voting. There is no Southeast Asian country that imposes is provided for in the Constitution. But the law can step in
this requirement. The United States Supreme Court only a as far as certain procedural requirements are concerned like

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requiring registration, and also step in as far as these Section 115. Necessity of Registration. - In order that a
classifications are concerned.73 (Emphases supplied) qualified elector may vote in any election, plebiscite or
As it finally turned out, the imposition of literacy, property, referendum, he must be registered in the permanent list
or other substantive requirement was proscribed and the of voters for the city or municipality in which he resides.
following provision on suffrage was adopted74 in the 1973 (Emphasis supplied)
Constitution: Thus, although one is deemed to be a "qualified elector," he
Section 1. Suffrage shall be exercised by citizens of the must nonetheless still comply with the registration
Philippines not otherwise disqualified by law, who are procedure in order to vote.
eighteen years of age or over, and who shall have
resided in the Philippines for at least one year and in the As the deliberations on the 1973 Constitution made
place wherein they propose to vote for at least six clear, registration is a mere procedural requirement
months preceding the election. No literacy, property, or which does not fall under the limitation that "[n]o
other substantive requirement shall be imposed on the literacy, property, or other substantive requirement
exercise of suffrage. The Batasang Pambansa shall shall be imposed on the exercise of suffrage." This was
provide a system for the purpose of securing the secrecy echoed in AKBAYAN-Youth v. COMELEC81
and sanctity of the vote. (Emphasis supplied) (AKBAYAN-Youth), wherein the Court pronounced that
After deliberating on and eventually, striking down a the process of registration is a procedural limitation on the
proposal to exclude literacy requirements from the right to vote. Albeit procedural, the right of a citizen to vote
limitation,75 the exact provision prohibiting the imposition nevertheless remains conditioned upon it:
of "literacy, property, or other substantive requirement[s]" Needless to say, the exercise of the right of suffrage, as in
in the 1973 Constitution was fully adopted in the 1987 the enjoyment of all other rights, is subject to existing
Constitution. substantive and procedural requirements embodied in our
Constitution, statute books and other repositories of law.
Along the contours of this limitation then, Congress, Thus, as to the substantive aspect, Section 1, Article V of
pursuant to Section 118 of Batas Pambansa Bilang 881, the Constitution provides:chanRoblesvirtualLawlibrary
or the Omnibus Election Code, among others, imposed
the following legal disqualifications: xxxx
Section 118. Disqualifications. - The following shall be
disqualified from voting: As to the procedural limitation, the right of a citizen to vote
(a) Any person who has been sentenced by final is necessarily conditioned upon certain procedural
judgment to suffer imprisonment for not less than one requirements he must undergo: among others, the process
year, such disability not having been removed by of registration. Specifically, a citizen in order to be
plenary pardon or granted amnesty: Provided, qualified to exercise his right to vote, in addition to the
however, That any person disqualified to vote under minimum requirements set by the fundamental charter, is
this paragraph shall automatically reacquire the right obliged by law to register, at present, under the provisions
to vote upon expiration of five years after service of of Republic Act No. 8189, otherwise known as the Voters
sentence. Registration Act of 1996.82 (Emphasis and underscoring
supplied)
(b) Any person who has been adjudged by final RA 8189 primarily governs the process of registration. It
judgment by competent court or tribunal of having defines "registration" as "the act of accomplishing and
committed any crime involving disloyalty to the duly filing of a sworn application for registration by a qualified
constituted government such as rebellion, sedition, voter before the election officer of the city or municipality
violation of the anti-subversion and firearms laws, or wherein he resides and including the same in the book of
any crime against national security, unless restored to registered voters upon approval by the [ERB]."83 As stated
his full civil and political rights in accordance with law: in Section 2 thereof, RA 8189 was passed in order "to
Provided, That he shall regain his right to vote systematize the present method of registration in order to
automatically upon expiration of five years after service establish a clean, complete, permanent and updated list of
of sentence. voters."

(c) Insane or incompetent persons as declared by To complement RA 8189 in light of the advances in
competent authority. modern technology, RA 10367, or the assailed Biometrics
A "qualification" is loosely defined as "the possession of Law, was signed into law in February 2013. It built on the
qualities, properties (such as fitness or capacity) policy considerations behind RA 8189 as it institutionalized
inherently or legally necessary to make one eligible for a biometrics validation as part of the registration process:
position or office, or to perform a public duty or Section 1. Declaration of Policy. - It is the policy of the
function."76 State to establish a clean, complete, permanent and updated
list of voters through the adoption of biometric technology.
Properly speaking, the concept of a "qualification", at least "Biometrics refers to a quantitative analysis that provides a
insofar as the discourse on suffrage is concerned, should be positive identification of an individual such as voice,
distinguished from the concept of "registration", which is photograph, fingerprint, signature, iris, and/or such other
jurisprudentially regarded as only the means by which a identifiable features."84
person's qualifications to vote is determined. In Yra v.
Abao,77 citing Meffert v. Brown,78 it was stated that Sections 3 and 10 of RA 10367 respectively require
"[t]he act of registering is only one step towards voting, and registered and new voters to submit themselves for
it is not one of the elements that makes the citizen a biometrics validation:
qualified voter [and] one may be a qualified voter without Section 3. Who Shall Submit for Validation. -
exercising the right to vote."79 In said case, this Court Registered voters whose biometrics have not been
definitively characterized registration as a form of captured shall submit themselves for validation.
regulation and not as a qualification for the right of
suffrage: Section 10. Mandatory Biometrics Registration. - The
Registration regulates the exercise of the right of suffrage. Commission shall implement a mandatory biometrics
It is not a qualification for such right.80 (Emphasis registration system for new voters.
supplied) Under Section 2 (d) of RA 10367, "validation" is
As a form of regulation, compliance with the registration defined as "the process of taking the biometrics of
procedure is dutifully enjoined. Section 115 of the Omnibus registered voters whose biometrics have not yet been
Election Code provides: captured."

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Courts and the Sandiganbayan shall furnish the Election

The consequence of non-compliance is "deactivation" Officer of the city or municipality concerned at the end of
which "refers to the removal of the registration record of each month a certified list of persons who are disqualified
the registered voter from the corresponding precinct book under paragraph (a) hereof, with their addresses. The
of voters for failure to comply with the validation process Commission may request a certified list of persons who
as required by [RA 10367]."85 Section 7 states: have lost their Filipino Citizenship or declared as insane or
Section 7. Deactivation. - Voters who fail to submit for incompetent with their addresses from other government
validation on or before the last day of filing of agencies.
application for registration for purposes of the May
2016 elections shall be deactivated pursuant to this Act. The Election Officer shall post in the bulletin board of his
(Emphases supplied) office a certified list of those persons whose registration
Notably, the penalty of deactivation, as well as the were deactivated and the reasons therefor, and furnish
requirement of validation, neutrally applies to all voters. copies thereof to the local heads of political parties, the
Thus, petitioners' argument that the law creates artificial national central file, provincial file, and the voter
class of voters86 is more imagined than real. There is no concerned.
favor accorded to an "obedient group." If anything, non- With these considerations in mind, petitioners' claim that
compliance by the "disobedient" only rightfully results into biometrics validation imposed under RA 10367, and
prescribed consequences. Surely, this is beyond the implemented under COMELEC Resolution Nos. 9721,
intended mantle of the equal protection of the laws, which 9863, and 10013, must perforce fail. To reiterate, this
only works "against undue favor and individual or class requirement is not a "qualification" to the exercise of the
privilege, as well as hostile discrimination or the oppression right of suffrage, but a mere aspect of the registration
of inequality."87 procedure, of which the State has the right to reasonably
regulate. It was institutionalized conformant to the
It should also be pointed out that deactivation is not novel limitations of the 1987 Constitution and is a mere
to RA 10367. RA 8189 already provides for certain complement to the existing Voter's Registration Act of
grounds for deactivation, of which not only the 1996. Petitioners would do well to be reminded of this
disqualifications under the Constitution or the Omnibus Court's pronouncement in AKBAYAN-Youth, wherein it
Election are listed. was held that:
Section 27. Deactivation of Registration. The board [T]he act of registration is an indispensable precondition to
shall deactivate the registration and remove the the right of suffrage. For registration is part and parcel of
registration records of the following persons from the the right to vote and an indispensable element in the
corresponding precinct book of voters and place the election process. Thus, contrary to petitioners' argument,
same, properly marked and dated in indelible ink, in the registration cannot and should not be denigrated to the
inactive file after entering the cause or causes of lowly stature of a mere statutory requirement. Proceeding
deactivation:chanRoblesvirtualLawlibrary from the significance of registration as a necessary requisite
to the right to vote, the State undoubtedly, in the exercise of
a) Any person who has been sentenced by final its inherent police power, may then enact laws to safeguard
judgment to suffer imprisonment for not less than one and regulate the act of voter's registration for the ultimate
(1) year, such disability not having been removed by purpose of conducting honest, orderly and peaceful
plenary pardon or amnesty: Provided, however, That election, to the incidental yet generally important end, that
any person disqualified to vote under this paragraph even pre-election activities could be performed by the duly
shall automatically reacquire the right to vote upon constituted authorities in a realistic and orderly manner -
expiration of five (5) years after service of sentence as one which is not indifferent, and so far removed from the
certified by the clerks of courts of the pressing order of the day and the prevalent circumstances
Municipal/Municipal Circuit/Metropolitan/Regional of the times.88 (Emphasis and underscoring supplied)
Trial Courts and the Sandiganbayan; Thus, unless it is shown that a registration requirement
rises to the level of a literacy, property or other substantive
b) Any person who has been adjudged by final requirement as contemplated by the Framers of the
judgment by a competent court or tribunal of having Constitution - that is, one which propagates a socio-
caused/committed any crime involving disloyalty to the economic standard which is bereft of any rational basis to
duly constituted government such as rebellion, sedition, a person's ability to intelligently cast his vote and to further
violation of the anti-subversion and firearms laws, or the public good - the same cannot be struck down as
any crime against national security, unless restored to unconstitutional, as in this case.
his full civil and political rights in accordance with law;
Provided, That he shall regain his right to vote III.
automatically upon expiration of five (5) years after
service of sentence; For another, petitioners assert that biometrics validation
gravely violates the Constitution, considering that, applying
c) Any person declared by competent authority to be the strict scrutiny test, it is not poised with a compelling
insane or incompetent unless such disqualification has reason for state regulation and hence, an unreasonable
been subsequently removed by a declaration of a proper deprivation of the right to suffrage.89 They cite the case of
authority that such person is no longer insane or White Light Corp. v. City of Manila90 (White Light),
incompetent; wherein the Court stated that the scope of the strict scrutiny
test covers the protection of the right of suffrage.91
d) Any person who did not vote in the two (2) successive
preceding regular elections as shown by their voting Contrary to petitioners' assertion, the regulation passes the
records. For this purpose, regular elections do not strict scrutiny test.
include the Sangguniang Kabataan (SK) elections;
In terms of judicial review of statutes or ordinances, strict
e) Any person whose registration has been ordered scrutiny refers to the standard for determining the quality
excluded by the Court; and and the amount of governmental interest brought to justify
the regulation of fundamental freedoms. Strict scrutiny is
f) Any person who has lost his Filipino citizenship. used today to test the validity of laws dealing with the
regulation of speech, gender, or race as well as other
For this purpose, the clerks of court for the fundamental rights as expansion from its earlier
Municipal/Municipal ( Circuit/Metropolitan/Regional Trial applications to equal protection.92 As pointed out by

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petitioners, the United States Supreme Court has expanded between hearings and notice, and the summary nature of
the scope of strict scrutiny to protect fundamental rights the deactivation proceedings.102
such as suffrage, judicial access, and interstate travel.93
Petitioners are mistaken.
Applying strict scrutiny, the focus is on the presence of
compelling, rather than substantial, governmental At the outset, it should be pointed out that the COMELEC,
interest and on the absence of less restrictive means for through Resolution No. 10013, had directed EOs to: (a)
achieving that interest,94 and the burden befalls upon "[p]ost the lists of voters without biometrics data in the
the State to prove the same.95 bulletin boards of the City/Municipal hall, Office of the
Election Officer and in the barangay hall along with the
In this case, respondents have shown that the biometrics notice of ERB hearing;" and (b) [s]end individual notices to
validation requirement under RA 10367 advances a the affected voters included in the generated list of voters
compelling state interest. It was precisely designed to without biometrics data.103 The same Resolution also
facilitate the conduct of orderly, honest, and credible accords concerned individuals the opportunity to file their
elections by containing - if not eliminating, the perennial opposition/objection to the deactivation of VRRs not later
problem of having flying voters, as well as dead and than November 9, 2015 in accordance with the period
multiple registrants. According to the sponsorship speech prescribed in Section 4,104 Chapter I, Resolution No. 9853.
of Senator Aquilino L. Pimentel III, the objective of the law Meanwhile, Resolution Nos. 9721 and 9863 respectively
was to cleanse the national voter registry so as to eliminate state that "[d]eactivation x x x shall comply with the
electoral fraud and ensure that the results of the elections requirements on posting, ERB hearing and service of
were truly reflective of the genuine will of the people.96 individual notices to the deactivated voters,"105 and that
The foregoing consideration is unquestionably a the "Reactivation for cases falling under this ground shall
compelling state interest. be made during the November 16, 2015 Board hearing."106
While the proceedings are summary in nature, the urgency
Also, it was shown that the regulation is the least restrictive of finalizing the voters' list for the upcoming May 2016
means for achieving the above-said interest. Section 697 of Elections calls for swift and immediate action on the
Resolution No. 9721 sets the procedure for biometrics deactivation of VRRs of voters who fail to comply with the
validation, whereby the registered voter is only required to: mandate of RA 10367. After all, in the preparation for the
(a) personally appear before the Office of the Election May 2016 National and Local Elections, time is of the
Officer; (b) present a competent evidence of identity; and essence. The summary nature of the proceedings does not
(c) have his photo, signature, and fingerprints recorded. It depart from the fact that petitioners were given the
is, in effect, a manner of updating one's registration for opportunity to be heard.
those already registered under RA 8189, or a first-time
registration for new registrants. The re-registration process Relatedly, it deserves emphasis that the public has been
is amply justified by the fact that the government is sufficiently informed of the implementation of RA 10367
adopting a novel technology like biometrics in order to and its deactivation feature. RA 10367 was duly published
address the bane of electoral fraud that has enduringly as early as February 22, 2013,107 and took effect fifteen
plagued the electoral exercises in this country. While (15) days after.108 Accordingly, dating to the day of its
registrants may be inconvenienced by waiting in long lines publications, all are bound to know the terms of its
or by not being accommodated on certain days due to provisions, including the consequences of non-compliance.
heavy volume of work, these are typical burdens of voting As implemented, the process of biometrics validation
that are remedied by bureaucratic improvements to be commenced on July 1, 2013, or approximately two and a
implemented by the COMELEC as an administrative half (2 1/2) years before the October 31, 2015 deadline. To
institution. By and large, the COMELEC has not turned a add, the COMELEC conducted a massive public
blind eye to these realities. It has tried to account for the information campaign, i.e., NoBio-NoBoto, from May 2014
exigencies by holding continuous registration as early as until October 31, 2015, or a period of eighteen (18) months,
May 6, 2014 until October 31, 2015, or for over a period of whereby voters were reminded to update and validate their
18 months. To make the validation process as convenient as registration records. On top of that, the COMELEC exerted
possible, the COMELEC even went to the extent of setting efforts to make the validation process more convenient for
up off-site and satellite biometrics registration in shopping the public as it enlisted the assistance of malls across Metro
malls and conducted the same on Sundays.98 Moreover, it Manila to serve as satellite registration centers and declared
deserves mentioning that RA 10367 and Resolution No. Sundays as working days for COMELEC offices within the
9721 did not mandate registered voters to submit National Capital Region and in highly urbanized cities.109
themselves to validation every time there is an election. In Considering these steps, the Court finds that the public has
fact, it only required the voter to undergo the validation been sufficiently apprised of the implementation of RA
process one (1) time, which shall remain effective in 10367, and its penalty of deactivation in case of failure to
succeeding elections, provided that he remains an active comply. Thus, there was no violation of procedural due
voter. To add, the failure to validate did not preclude process.
deactivated voters from exercising their right to vote in the
succeeding elections. To rectify such status, they could still V.
apply for reactivation99 following the procedure laid down
in Section 28100 of RA 8189. Petitioners aver that the poor experience of other countries -
i.e., Guatemala, Britain, Cote d'lvoire, Uganda, and Kenya -
That being said, the assailed regulation on the right to in implementing biometrics registration should serve as
suffrage was sufficiently justified as it was indeed narrowly warning in adhering to the system. They highlighted the
tailored to achieve the compelling state interest of inherent difficulties in launching the same such as
establishing a clean, complete, permanent and updated list environmental and geographical challenges, lack of training
of voters, and was demonstrably the least restrictive means and skills, mechanical breakdown, and the need for re-
in promoting that interest.101 registration. They even adrnitted that while biometrics may
address electoral fraud caused by multiple registrants, it
IV. does not, however, solve other election-related problems
such as vote-buying and source-code manipulation.110
Petitioners further aver that RA 10367 and the COMELEC
Resolution Nos. 9721, 9863, and 10013 violate the tenets of Aside from treading on mere speculation, the insinuations
procedural due process because of the short periods of time are improper. Clearly, petitioners' submissions principally
assail the wisdom of the legislature in adopting the

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biometrics registration system in curbing electoral fraud. In for the generation of the1 final list of voters which, in turn,
this relation, it is significant to point out that questions is a pre-requisite for the preparation and completion of the
relating to the wisdom, morality, or practicability of Project of Precincts (POP) that is vital for the actual
statutes are policy matters that should not be addressed to elections. The POP contains the number of registered voters
the judiciary. As elucidated in the case of Farias v. The in each precinct and clustered precinct, the names of the
Executive Secretary:111 barangays, municipalities, cities, provinces, legislative
[P]olicy matters are not the concern of the Court. districts, and regions included in the precincts, and the
Government policy is within the exclusive dominion of the names and locations of polling centers where each precinct
political branches of the government. It is not for this Court and clustered precinct are assigned.119 The POP is
to look into the wisdom or propriety of legislative necessary to determine the total number of boards of
determination. Indeed, whether an enactment is wise or election inspectors to be constituted, the allocation of forms
unwise, whether it is based on sound economic theory, and supplies to be procured for the election day, the number
whether it is the best means to achieve the desired results, of vote counting machines and other paraphernalia to be
whether, in short, the legislative discretion within its deployed, and the budget needed. More importantly, the
prescribed limits should be exercised in a particular manner POP will be used as the basis for the fmalization of the
are matters for the judgment of the legislature, and the Election Management System (EMS) which generates the
serious, conflict of opinions does not suffice to bring them templates of the official ballots and determines the voting
within the range of judicial cognizance.112 (Emphases and jurisdiction of legislative districts, cities, municipalities,
underscoring supplied) and provinces.120 The EMS determines the configuration
In the exercise of its legislative power, Congress has a wide of the canvassing and consolidation system for each voting
latitude of discretion to enact laws, such as RA 10367, to jurisdiction. Accordingly, as the constitutional body
combat electoral fraud which, in this case, was through the specifically charged with the enforcement and
establishment of an updated voter registry. In making such administration of all laws and regulations relative to the
choices to achieve its desired result, Congress has conduct of an election, plebiscite, initiative, referendum,
necessarily sifted through the policy's wisdom, which this and recall,121 the COMELEC should be given sufficient
Court has no authority to review, much less reverse.113 leeway in accounting for the exigencies of the upcoming
Whether RA 10367 was wise or unwise, or was the best elections. In fine, its measures therefor should be respected,
means in curtailing electoral fraud is a question that does unless it is clearly shown that the same are devoid of any
not present a justiciable issue cognizable by the courts. reasonable justification.
Indeed, the reason behind the legislature's choice of
adopting biometrics registration notwithstanding the WHEREFORE, the petition is DISMISSED due to lack of
experience of foreign countries, the difficulties in its merit. The temporary restraining order issued by this Court
implementation, or its concomitant failure to address on December 1, 2015 is consequently DISSOLVED.
equally pressing election problems, is essentially a policy
question and, hence, beyond the pale of judicial scrutiny. SO ORDERED.chanroblesvirtuallawlibrary

VI.

Finally, petitioners' proffer that Resolution No. 9863 which

fixed the deadline for validation on October 31, 2015
violates Section 8 of RA 8189 which states:
Section 8. System of Continuing Registration of Voters. -
The personal filing of application of registration of voters
shall be conducted daily in the office of the Election
Officer during regular office hours. No registration shall,
however, be conducted during the period starting one
hundred twenty (120) days before a regular election and
ninety (90) days before a special election. (Emphasis
added.)
The position is, once more, wrong.

Aside from committing forum shopping by raising this

issue despite already being subject of a prior petition filed
before this Court, i.e., G.R. No. 220918,114 petitioners fail
to consider that the 120- and 90-day periods stated therein
refer to the prohibitive period beyond which voter
registration may no longer be conducted. As already
resolved in this Court's Resolution dated December 8, 2015
in G.R. No. 220918, the subject provision does not mandate
COMELEC to conduct voter registration up to such time;
rather, it only provides a period which may not be reduced,
but may be extended depending on the administrative
necessities and other exigencies.115 Verily, as the
constitutional body tasked to enforce and implement
election laws, the COMELEC has the power to promulgate
the necessary rules and regulations to fulfil its mandate.116
Perforce, this power includes the determination of the
periods to accomplish certain pre-election acts,117 such as
voter registration.

At this conclusory juncture, this Court reiterates that voter

registration does not begin and end with the filing of
applications which, in reality, is just the initial phase that
must be followed by the approval of applications by the
ERB.118 Thereafter, the process of filing petitions for
inclusion and exclusion follows. These steps are necessary

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