[G.R. Nos. 141952-53.

April 20, 2001]

RODOLFO DUMAYAS, JR., petitioner, vs. COMMISSION ON ELECTIONS, THE

MUNICIPAL BOARD OF CANVASSERS OF THE MUNICIPALITY OF CARLES,
PROVINCE OF ILOILO and FELIPE BERNAL, JR., respondents.

DECISION

QUISUMBING, J.:

In this special civil action, petitioner Rodolfo Dumayas, Jr., seeks to nullify the Resolution
promulgated March 2, 2000 by the Commission on Elections (COMELEC) en banc, reversing
that of the Second Division dated August 4, 1998, which annulled the petitioners proclamation as
Municipal Mayor of Carles, Iloilo.

The antecedent facts of the case, as found by the COMELEC en banc, are as follows:

Petitioner Dumayas, Jr. and respondent Bernal, Jr. were rival candidates for the position of
mayor in Carles, Iloilo last 11 May 1998 synchronized elections.

During the canvassing on 13 May 1998, election returns for precincts nos. 61A, 62A, and
63A/64A all of Barangay Pantalan were protested for inclusion in the canvass before the
Municipal Board of Canvassers (MBC for brevity) by petitioner-appellant Dumayas Jr. The
grounds relied upon for their exclusion are all the same- that is, violation of Secs. 234, 235, 236
of the Omnibus Election Code and other election laws; acts of terrorism, intimidation, coercion,
and similar acts prohibited by law. Appellant Dumayas, Jr. submitted his evidence to the Board
of Canvassers on 14 May 1998 which consist of (a) the joint affidavits executed by LAMMP
watchers for precinct 61A: Teresita Oblido, Reyland de la Rosa, and Armando Flores [signed by
Oblido and Flores only]; (b) affidavit of petitioners supporter Virgilisa Capao; (c) joint affidavit
of precinct 63A - watcher Nona Dichosa and precinct 62A - watcher Daniel Carmona; (d) blotter
report dated 12 May 1998 of Carles PNP, Iloilo; and (d) corroborating affidavit of LAMMP
supporter Honorato Gallardo.

All the affidavits submitted by petitioner contain similar attestations such as: certain local
baranggay (sic) officials were inside the polling place during the casting and counting of votes,
or acted as watcher of respondent; SPO3 Gilbert Sorongon who was in shorts and t-shirt armed
with an armalite roamed around and inside the polling places; a CVO in uniform was roaming
precinct 63A; the presence of the public officials posed threat and intimidation driving most of
the watchers of other political parties away; the BEIs were so intimidated and coerced that no
election return was prepared simultaneous with the tallying; the election returns were prepared
under duress; the voters were coerced to vote for certain favored candidates especially herein
respondent; petitioners watchers were made to sign or affix their thumbmarks on the already
prepared election returns; in precinct 63A/64A, the voting ended at almost 9:00 P.M. without
the BEI members writing the names of such voters.
Petitioner also submitted a certification issued by PO3 Tito Billones, Desk Officer of PNP Carles
representing the blotter report (extracted from the police log book) which states that on 12 May
1998, Virgilisa Capao reported to the Police Station of Carles, Iloilo that PO3 Sorongon and
Brgy. Capt. Mahilum entered Precinct 63A with (sic) the company of other CVO and Brgy.
Kagawad during election. And that these people gravely intimidated the voters by telling them
the names of the candidates they should vote for. It also states that PO3 Sorongon was not in his
prescribed uniform when seen with hand grenades hanging on his neck and carrying an armalite
roaming inside and outside the polling place.

On the other hand, respondent Bernal, Jr. in vehemently denying the allegations of petitioner,
submitted joint affidavits of the members of the different Boards of Election Inspectors for
precinct nos. 61A, 62A and 63A/64A.

xxx

All the supplemental affidavits of the different BEIs categorically declared that the elections in
their respective precincts starting from the start of the voting to its closing, to the counting of
votes and to the preparation and submission of election returns were peaceful, clean, orderly and
no acts of terrorism, intimidation, coercion and similar acts prohibited by law was (sic) exerted
on anybody including the voters and members of the BEIs. They all attested that the incidents
alleged by petitioners watchers did not happen. The alleged terrorism, coercion, or violation of
election laws like the opening of ballots and reading the votes allegedly done by certain public
officials like SPO3 Sorongon, Nody Mahilum, Anonia Barrios, Telesforo Gallardo and others are
not true, the truth being that these people were only inside the polling place to exercise their right
of suffrage. They also vehemently denied that the election returns were not simultaneously
prepared with the tallying and counting of votes. They stressed that as public school teachers,
they cannot risk their future and career and will not allow or tolerate anybody to make a mockery
of the electoral process to (sic) which they were duly sworn to uphold.

Nody Mahilum and PO3 Gilbert Sorongon also executed a joint affidavit denying the accusations
of Dumayas, Jr. and his watchers stating therein that they only entered their respective precinct-
polling place in order to exercise their right of suffrage and that the election in the three precincts
of Barangay Pantalan was orderly, peaceful, and honest which (sic) truly reflects the will of the
electorate.

x x xi[1]

In the afternoon of May 14, 1998, the Municipal Board of Canvassers denied petitioners
objection to the inclusion of the contested returns and proceeded with the canvass. The results of
the voting were as follows:

DUMAYAS BERNAL

CONTESTED PRECINCTS

Prec. 61A 44 117

 Prec. 62A 43 114

Prec. 63A/64A (clustered) 54 159

Uncontested prec[incts] total 7, 636 7, 514

Over all total 7,777 7, 904ii[2]

Petitioner filed a Notice of Appeal before the MBC on May 15, 1998. The appeal was given due
course by the COMELEC Second Divisioniii[3] which rendered a resolution dated August 4,
1998, disposing as follows:

WHEREFORE, finding the preparation of the contested election returns to be tainted with
irregularities, this Commission (SECOND DIVISION) RESOLVED, as it hereby RESOLVES,
to EXCLUDE Election Return No. 3000976 from Precinct No. 61-A; Election Return No.
3000977 from Precinct No. 62-A; and Election return No. 3000978 from Precinct Nos. 63-A/64-
A (clustered).

Respondent Mun(i)cipal Board of Canvassers is hereby directed to RECONVENE and FINISH

the canvass of the remaining or uncontested returns and thereafter, PROCLAIM the winning
mayoralty candidate of Carles, Iloilo.

SO ORDERED.iv[4]

On August 10, 1998, private respondent Felipe Bernal, Jr., filed a motion for reconsideration of
the above-cited resolution with the COMELEC en banc.

On August 12, 1998, an order certifying that the motion for reconsideration and records of the
case were elevated to the COMELEC en banc was signed by Commissioner Julio F. Desamito
and issued by the Clerk of the Commission.

Pending resolution of the motion for reconsideration and pursuant to the resolution of the
COMELEC Second Division, Election Officer Rolando Dalen set the reconvening of the MBC
on August 13, 1998, for the continuation of canvass proceedings and proclamation of winning
candidates for Vice-Mayor and Municipal Councilors of Carles, Iloilo. No winner for the
position of Mayor was proclaimed since private respondent was able to present a copy of his
motion for reconsideration before the MBC. The MBC then reset the date for reconvening of the
board on August 17, 1998, after confirming by phone with COMELEC-Manila that a motion for
reconsideration was indeed filed by private respondent. Thereafter, the MBC ruled that
proclamation of the winning candidate for Mayor would proceed on August 17, 1998 unless
private respondent could present a certification from the COMELEC that the motion for
reconsideration was elevated to the COMELEC en banc.

On August 17, 1998, despite presentation of the August 12, 1998 order, petitioner was
proclaimed winner of the election after excluding from the canvass the election returns from the
three contested precincts in accordance with the COMELEC Second Division Resolution. The
MBC, with its Vice-Chairman dissenting, justified its act by reasoning that it did not receive an
official copy of the order directing the elevation of the case to the banc.

The following day, private respondent immediately filed an urgent motion to declare void ab
initio the proclamation of petitioner on the ground that the resolution of the COMELEC Second
Division was not yet final and executory. For his part, petitioner opposed both the motion for
reconsideration and motion to declare void ab initio his proclamation as Mayor of Carles,
asserting that private respondent failed to show palpable errors to warrant reconsideration of said
resolution and maintaining, at the same time, that his proclamation was legal since respondent
failed to produce the certification required by the MBC.

Meanwhile, on August 25, 1998, the duly-proclaimed Vice-Mayor Arnold Betita filed an action
for quo warrantov[5] against petitioner before the Regional Trial Court of Iloilo, Branch 66.
Docketed as Spl. Civil Action No. 98-141, said petition included respondent Bernal as one of the
petitioners together with Vice-Mayor Betita.

On September 18, 1998, petitioner filed before the COMELEC en banc a motion to expunge
respondent Bernals motion for reconsideration and motion to declare petitioners proclamation
void ab initio, on the ground that respondent Bernal should be deemed to have abandoned said
motions by the filing of Spl. Civil Action No. 98-141 which, according to petitioner, is a formal
election protest via quo warranto brought before the regular courts.

In a resolution dated August 24, 1999 but promulgated on March 2, 2000, the COMELEC en
banc denied petitioners motion to expunge, thus:

WHEREFORE, premises considered, the Resolution of the Second Division is hereby

REVERSED and SET ASIDE and the proclamation of Rodolfo Dumayas, Jr. is hereby
ANNULLED. A new Municipal Board of Canvassers of Carles, Iloilo is hereby constituted with
the following members: Atty. Nelia Aureus, Chairman; Atty. Rosel Abad, Vice-Chairman; and
Atty. Manuel Lucero, Third Member -- all of Election Contests and Adjudication Department of
the Commission. They are directed to convene at Session Hall of the COMELEC -- Main Office,
Manila on the tenth (10th) day from the date of promulgation of this Resolution with notice to
the parties. The new board of canvassers shall complete the canvassing of all the returns and
proceed with the proclamation of the true winner for the position of mayor of Carles, Iloilo.
Petitioner Rodolfo Dumayas, Jr. is hereby directed to cease and desist from performing the
functions of the office of mayor of Carles, Iloilo. Election Officer Rolando Dalen is hereby
directed to bring to the Commissions Main Office the election returns of Carles, Iloilo which
need to be canvassed and the other election documents necessary for the canvassing and
proclamation and turn them over to the new board of canvassers.

The Law Department is directed to investigate the election offense allegedly committed by PO3
Gilbert Sorongon on election day.

Let the Deputy Executive Director for Operations of the Commission implement this Resolution
with dispatch giving a copy thereof to the Secretary of the Department of Interior and Local
Government.
SO ORDERED.vi[6]

On March 13, 2000, respondent Bernal, Jr. was proclaimed by the newly-constituted Municipal
Board of Canvassers as the duly-elected Mayor of the Municipality of Carles, thereby unseating
petitioner Dumayas.

Hence, this instant special civil action where he alleges that:

A. RESPONDENT COMMISSION ERRED IN NOT HOLDING THAT, PRIVATE

RESPONDENT FELIPE BERNAL JR. IS DEEMED TO HAVE ABANDONED HIS MOTION
FOR RECONSIDERATION BEFORE THE COMMISSION ON ELECTION EN BANC
CONSIDERING THAT PRIVATE RESPONDENT, TOGETHER WITH ARNOLD BETITA
FILED AN ELECTION CASE THRU A QUO WARRANTO, BEFORE THE REGIONAL
TRIAL COURT OF ILOILO BRANCH 66, DOCKETED AS CASE NO. 98-141.

B. RESPONDENT COMMISSION ERRED IN UPHOLDING THE INCLUSION FOR

CANVASS THE THREE ELECTION RETURNS FOR PRECINCT NOS. 61-A, 62-A, and 63-
A/64-A (CLUSTERED) BY THE MUNICIPAL BOARD OF CANVASSERS OF CARLES,
ILOILO NOTWITHSTANDING THE FACT THAT THERE IS CLEAR AND SUFFICIENT
EVIDENCE TO SHOW THAT THE ELECTION RETURNS FOR THESE THREE
PRECINCT(S) WERE PREPARED UNDER DURESS AND NOT PREPARED
SIMULTANEOUSLY WITH THE COUNTING OF VOTES.

C. THE RESOLUTION PROMULGATED ON MARCH 2, 2000 IS ILLEGAL AS IT WAS

VIOLATIVE OF ARTICLE IX (A) SECTION 7 OF THE CONSTITUTION CONSIDERING
THAT ONLY FOUR COMMISSIONERS VOTED TO REVERSE THE RESOLUTION
DATED AUGUST 4, 1998 OF THE SECOND DIVISION COMMISSION ON ELECTION
AND THAT, TWO COMMISSIONER(S) HAVE ALREADY RETIRED, AT THE TIME OF
THE PROMULGATION.vii[7]

The following are the issues to be resolved: (1) Should respondent Bernal, who was named as
petitioner in the quo warranto proceedings commenced before the regular court, be deemed to
have abandoned the motions he had filed with respondent Commission? (2) Did the COMELEC
err in ordering the inclusion of the contested election returns in the canvassing of ballots? (3) In
view of the retirement of Commissioners Gorospe and Guiani before the date of the
promulgation of the assailed resolution on March 2, 2000, should said resolution be deemed null
and void for being violative of Article IX-A, Section 7 of the 1987 Constitution?

We shall first discuss the third issue. Petitioner claims that March 2, 2000 Resolution of the
COMELEC is void because Commissioners Manolo Gorospe and Japal Guiani have already
retired on the date of its promulgation, even if they had participated earlier in the deliberations of
the case and signed the resolution dated August 24, 1999. Petitioner submits that this defect
invalidated the entire decision of the Commission and that accordingly, a new vote should be
taken to settle the matter.
In Jamil vs. Commission on Elections,viii[8] we held that a decision becomes binding only after
its promulgation. If at the time it is promulgated, a judge or member of the collegiate court who
had earlier signed or registered his vote has vacated office, his vote on the decision must
automatically be withdrawn or cancelled. Accordingly, the votes of Commissioners Gorospe and
Guiani should merely be considered as withdrawn for the reason that their retirement preceded
the resolutions promulgation. The effect of the withdrawal of their votes would be as if they had
not signed the resolution at all and only the votes of the remaining commissioners would be
properly considered for the purpose of deciding the controversy.

However, unless the withdrawal of the votes would materially affect the result insofar as votes
for or against a party is concerned, we find no reason for declaring the decision a nullity. In the
present case, with the cancellation of the votes of retired Commissioners Gorospe and Guiani,
the remaining votes among the four incumbent commissioners at the time of the resolutions
promulgation would still be 3 to 1 in favor of respondent. Noteworthy, these remaining
Commissioners still constituted a quorum. In our view, the defect cited by petitioner does not
affect the substance or validity of respondent Commissions disposition of the controversy. The
nullification of the challenged resolution, in our view, would merely prolong the proceedings
unnecessarily.

Now, regarding the first issue raised by petitioner. Did respondent Bernal effectively abandon his
pending motions before the COMELEC en banc by the filing of Spl. Civil Action No. 98-141?
Petitioners contention that Bernal did appears to us untenable.

As a general rule, the filing of an election protest or a petition for quo warranto precludes the
subsequent filing of a pre-proclamation controversy or amounts to the abandonment of one
earlier filed, thus depriving the COMELEC of the authority to inquire into and pass upon the title
of the protestee or the validity of his proclamation. The reason for this rule is that once the
competent tribunal has acquired jurisdiction of an election protest or a petition for quo warranto,
all questions relative thereto will have to be decided in the case itself and not in another
proceeding, so as to prevent confusion and conflict of authority.ix[9]

Nevertheless, the general rule is not absolute. It admits of certain exceptions, as where: (a) the
board of canvassers was improperly constituted; (b) quo warranto was not the proper remedy; (c)
what was filed was not really a petition for quo warranto or an election protest but a petition to
annul a proclamation; (d) the filing of a quo warranto petition or an election protest was
expressly made without prejudice to the pre-proclamation controversy or was made ad cautelam;
and (e) the proclamation was null and void.x[10]

An examination of the petition filed primarily by Vice-Mayor Betita with the Regional Trial
Court of Iloilo City reveals that it is neither a quo warranto petition under the Omnibus Election
Code nor an election protest. In Samad vs. COMELECxi[11], we explained that a petition for quo
warranto under the Omnibus Election Code raises in issue the disloyalty or ineligibility of the
winning candidate. It is a proceeding to unseat the respondent from office but not necessarily to
install the petitioner in his place. An election protest is a contest between the defeated and
winning candidates on the ground of frauds or irregularities in the casting and counting of the
ballots, or in the preparation of the returns. It raises the question of who actually obtained the
plurality of the legal votes and therefore is entitled to hold the office.

The allegations contained in Betitas petition before the regular court do not present any proper
issue for either an election protest or a quo warranto case under the Omnibus Election Code. Spl.
Civil Action No. 98-141 appears to be in the nature of an action for usurpation of public office
brought by Betita to assert his right to the position of Mayor pursuant to the rules on succession
of local government officials contained in the Local Government Code.xii[12] Although said
petition is also denominated as a quo warranto petition under Rule 66 of the Rules of Court, it is
different in nature from the quo warranto provided for in the Omnibus Election Code where the
only issue proper for determination is either disloyalty or ineligibility of respondent therein.
Neither can it be considered as an election protest since what was put forth as an issue in said
petition was petitioners alleged unlawful assumption of the office of Mayor by virtue of his
alleged illegal proclamation as the winning candidate in the election.

A closer look at the specific allegations in the petition disclose that Spl. Civil Action No. 98-141
is actually an action for the annulment of petitioners proclamation on the ground of illegality and
prematurity. This conclusion is consistent with the rule that the nature of the action is determined
by the averments in the complaint or petitionxiii[13] and not the title or caption thereof. The
material stipulations of the petition substantially state:

13. That when the Board of Canvassers convened in the afternoon and despite the submission of
the copy of the order certifying the Motion for Reconsideration to the COMELEC En Banc and
in violation of the Comelec Rules and Procedure and due to the threat received by the Board, Mr.
Dalen, the Chairman of the Board and Mr. Serafin Provido, Jr. signed the Certificate of
Proclamation proclaiming respondent as winner of the elections for Mayor. Mr. Deony Cabaobao
did not signed (sic) the said Certificate of Proclamation as he dissented to (sic) the decision to
proclaim respondent;

14. The proclamation, therefore, of respondent is illegal and null and void from the very
beginning for it was done in violation of law and under duress. The affidavit of Mr. Serafin
Provido, Jr. a member of the Board of Canvassers showing duress is hereto attached as Annex C;

15. On account of the illegal proclamation of the respondent said proclamation does not vest any
right or authority for him to sit as Mayor of the town of Carles thus when he sits as such Mayor
he usurps, intrudes into, and unlawfully holds and exercise(s) a public office without authority;

16. The authority to act as mayor for and in the absence of the duly proclaimed mayor is vested
on petitioner Betita pursuant to law;

17. That the continued unlawful exercise by the respondent of the position of mayor of the town
of Carles will cause great and irreparable damage to the petitioners, particularly petitioner
Betita, who pursuant to law is entitled to act as Mayor of the town of Carles and the people of
Carles who pays his salaries unless he be restrained or enjoined from sitiing (sic) as such Mayor;

x x x xiv[14]
Thus, respondent Commission did not err, much less abuse its discretion, when it refused to
consider as abandoned Bernals motion for reconsideration and urgent motion to declare
petitioners proclamation as void ab initio. Note that under the allegations cited above, the
determination of Betitas right would ultimately hinge on the validity of petitioners proclamation
in the first place. To repeat, the quo warranto petition brought by Vice-Mayor Betita is a petition
to annul petitioners proclamation over which COMELEC exercises original exclusive
jurisdiction. Consequently, it could not be deemed as a proper remedy in favor of respondent
Bernal, Jr. even if his name was included in the title of said petition.

We now consider whether the MBCs proclamation of petitioner Dumayas as the winning
candidate in the 1998 mayoralty election is null and void. For where a proclamation is null and
void, it is no proclamation at all such that the proclaimed candidates assumption of office cannot
deprive the COMELEC of the power to declare such nullity and annul the proclamation.xv[15]

Although petitioners proclamation was undertaken pursuant to the resolution of the COMELECs
Second Division, it appears plain to us that the latter grievously erred in ordering the exclusion
of the contested returns from Precincts 61A, 62A and 63A/64A (clustered). On this score, the
Comelec en banc correctly reversed the Second Division by holding that petitioner Dumayas
failed to justify the exclusion of said returns on the ground of duress, intimidation, threat or
coercion. We note that the only evidence submitted by petitioner to prove said irregularities were
self-serving affidavits executed by his watchers and supporters. Aside from the fact that these
allegations were countered by opposing affidavits made by the members of the Boards of
Election Inspectors who are presumed to have regularly performed their dutiesxvi[16] and who
categorically denied the allegations, the election returns were also observed to be genuine, clean,
signed and/or thumbmarked by the proper officials and watchers.xvii[17]

Well-entrenched is the rule that findings of fact by the COMELEC or any other administrative
agency exercising particular expertise in its field of endeavor, are binding on this Court.xviii[18]
In a pre-proclamation controversy, the board of canvassers and the COMELEC are not required
to look beyond or behind the election returns which are on their face regular and authentic.
Where a party seeks to raise issues the resolution of which would necessitate the COMELEC to
pierce the veil of election returns which are prima facie regular, the proper remedy is a regular
election protest, not a pre-proclamation controversy.xix[19]

In the present case, petitioner barely alleged that the preparation of said returns was attended by
threats, duress, intimidation or coercion without offering any proof, other than the affidavits
mentioned above, that these had affected the regularity or genuineness of the contested returns.
Absent any evidence appearing on the face of the returns that they are indeed spurious,
manufactured or tampered with, the election irregularities cited by petitioner would require the
reception of evidence aliunde which cannot be done in a pre-proclamation controversy such as
the one initiated by petitioner. Returns can not be excluded on mere allegation that the returns
are manufactured or fictitious when the returns, on their face, appear regular and without any
physical signs of tampering, alteration or other similar vice. If there had been sham voting or
minimal voting which was made to appear as normal through falsification of the election returns,
such grounds are properly cognizable in an election protest and not in a pre-proclamation
controversy.xx[20]
In sum, we hold that the COMELEC en banc did not commit grave abuse of discretion in
reversing the ruling of its Second Division. The appeal brought by petitioner from the order of
inclusion issued by the MBC should have been dismissed by that Division right away, since the
grounds for exclusion relied upon by petitioner are not proper in a pre-proclamation case, which
is summary in nature.

WHEREFORE, the instant petition is DISMISSED for lack of merit, public respondent having
committed no grave abuse of discretion. Its challenged resolution dated August 24, 1999 is
AFFIRMED. Costs against petitioner.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Pardo, Buena,
Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.

DUMAYAS vs. COMELEC Case Digest

DUMAYAS vs. COMELEC

G.R. Nos. 141952-53, April 20,2001

Facts: Petitioner Dumayas and respondent Bernal were rival candidates for the position
in Mayor of Carles, Iloilo in the May 1998 synchronized elections. During the canvassing
by the MBC, petitioner sought the exclusion of election returns for 3 precincts of
Barangay Pantalan owing to alleged acts of terrorism, intimidation and coercion
committed in said precincts during the casting and counting of votes. The MBC denied
petitioners objections and proceeded with the canvass which showed respondent
Bernal garnering more votes than the petitioner.

Petitioner appealed to the COMELEC Second Division which excluded election returns
from 3 precincts and directed the MBC to reconvene and finish the canvass of the
remaining or uncontested returns and then, to proclaim the winning mayoralty
candidate. Private respondent Bernal moved for reconsideration of the decision of the
Second Division with the COMELEC en banc.

The MBC proclaim petitioner winner of the election. Private respondent Bernal filed an
urgent motion to declare void petitioners proclamation. The duly proclaimed Vice-Mayor
Betita, and private respondent Bernal filed n action for quo warranto against petitioner
before the RTC of Iloilo. Petitioner filed with COMELEC en banc a motion to cancel
Bernals motion for reconsideration and motion declare void petitioners proclamation on
the ground that respondent Bernal should be deemed to have abandoned said motion
when he filed quo warranto action.

The COMELEC en banc reversed the decision of the Second Division, annulled the
petitioner Dumayas proclamation; and constituted a new MBC. Respondent Bernal was
proclaimed by the newly-constituted MBC as the duly-elected Mayor of the Municipality.
Petitioner Dumayas asked the Supreme Court to set aside the COMELEC en banc
resolution.

Issue: Whether the COMELEC was correct in including in the canvass the election
returns of the contested precincts?

Held: The Supreme Court held in the affirmative. The only evidence presented by the
petitioner to prove the alleged irregularities were the self-serving contracts of his
watchers and inspectors. Returns cannot be excluded on mere allegations that the
returns are manufactured or fictitious when the returns on their face appear to be
regular and without any physical signs of tampering. The election irregularities cited by
the petitioner would require the presentation of evidence which cannot be done in a pre-
proclamation controversy which is summary in nature.

G.R. NO. 203833 : March 19, 2013

MAMERTO T. SEVILLA, JR. Petitioner, v. COMMISSION ON ELECTIONS and

RENATO R. SO, Respondents.

RESOLUTION

BRION, J.:

Before this Court is the petition for certiorari, with prayer for the issuance of a Writ of
Preliminary Injunction and/or Status Quo Ante Order,1 filed by petitioner Mamerto T. Sevilla,
Jr., to nullify the May 14, 2012 Resolution2 of the Commission on Elections (Comelec) Second
Division and the October 6, 2012 Resolution3 of the Comelec en banc in SPR (BRGY-SK) No.
70-2011. These assailed Resolutions reversed and set aside the May 4, 2011 Order of the
Muntinlupa City Metropolitan Trial Court, Branch 80

(MeTC), dismissing respondent Renato R. So's election protest against Sevilla.

The Facts

Sevilla and So were candidates for the position of Punong Barangay of Barangay Sucat,
Muntinlupa City during the October 25, 2010 Barangay and Sangguniang Kabataan Elections.
On October 26, 2010, the Board of Election Tellers proclaimed Sevilla as the winner with a total
of 7,354 votes or a winning margin of 628 votes over So's 6,726 total votes. On November 4,
2010, So filed an election protest with the MeTC on the ground that Sevilla committed electoral
fraud, anomalies and irregularities in all the protested precincts. So pinpointed twenty percent
(20%) of the total number of the protested precincts. He also prayed for a manual revision of the
ballots.4
chanroblesvirtualawlibrary

Following the recount of the ballots in the pilot protested precincts, the MeTC issued an Order
dated May 4, 2011 dismissing the election protest. On May 9, 2011, So filed a motion for
reconsideration from the dismissal order instead of a notice of appeal; he also failed to pay the
appeal fee within the reglementary period. On May 17, 2011, the MeTC denied the motion for
reconsideration on the ground that it was a prohibited pleading pursuant to Section 1, Rule 6 of
A.M. No. 07-04-15-SC.5 chanroblesvirtualawlibrary

In response, So filed a petition for certiorari on May 31, 2011 with the Comelec, alleging grave
abuse of discretion on the part of the MeTC Judge. So faults the MeTC for its non-observance of
the rule that in the appreciation of ballots, there should be a clear and distinct presentation of the
specific details of how and why a certain group of ballots should be considered as having been
written by one or two persons.6 chanroblesvirtualawlibrary

The Comelec Second Division Ruling

In its May 14, 2012 Resolution, the Comelec Second Division granted So's petition. The
Comelec Second Division held that certiorari can be granted despite the availability of appeals
when the questioned order amounts to an oppressive exercise of judicial authority, as in the case
before it. It also ruled that the assailed Order was fraught with infirmities and irregularities in the
appreciation of the ballots, and was couched in general terms: "these are not written by one
person observing the different strokes, slant, spacing, size and indentation of handwriting and the
variance in writing."7chanroblesvirtualawlibrary

The Comelec En Banc Ruling

The Comelec en banc, by a vote of 3-3,8 affirmed the Comelec Second Division's ruling in its
October 6, 2012 Resolution whose dispositive portion reads: chanroblesvirtualawlibrary

WHEREFORE, premises considered, the Motion for Reconsideration is hereby DENIED for
lack of merit. Respondent judge is directed to conduct another revision of the contested ballots in
Election Protest Case No. SP-6719 with dispatch.9 chanroblesvirtualawlibrary

It ruled that where the dismissal was capricious, certiorari lies as the petition challenges not the
correctness but the validity of the order of dismissal. The Comelec en banc emphasized that
procedural technicalities should be disregarded for the immediate and final resolution of election
cases inasmuch as ballots should be read and appreciated with utmost liberality so that the will of
the electorate in the choice of public officials may not be defeated by technical infirmities.

It found that the MeTC Judge committed grave abuse of discretion amounting to lack of
jurisdiction when she did not comply with the mandatory requirements of Section 2(d), Rule 14
of A.M. No. 07-4-15-SC on the form of the decision in election protests involving pairs or
groups of ballots written by two persons. It noted that based on the general and repetitive
phraseology of the Order, the MeTC Judge's findings were "copy-pasted" into the decision and
ran counter to the mandate of the aforementioned rule. Also, the MeTC Judge failed to mention
in her appreciation of the ballots that she examined the Minutes of Voting and Counting to
ascertain whether there were illiterate voters or assisted voters in the protested precincts.10 chanroblesvirtualawlibrary

Commissioner Lim's Dissent 11 chanroblesvirtualawlibrary

The dissent posited that So's petition should be dismissed outright as it was mired in procedural
errors. First, So should have filed an appeal within five (5) days from receipt of the MeTC's
Order; a motion for reconsideration was improper as the Order amounted to the final disposition
of the protest. Second, So should not have filed the motion for reconsideration even if he
believed that the Order was interlocutory since a motion for reconsideration is a prohibited
pleading. Also, he could have simply filed the petition for certiorari without the necessity of
filing the motion for reconsideration. Third, the petition for certiorari cannot be a substitute for
the lost appeal. The Comelec could not even treat the certiorari as an appeal since the petition
was filed 25 days after So received the assailed Order; thus, the Order already attained finality.
Finally, procedural rules should not be lightly shunned in favor of liberality when, as in this case,
So did not give a valid excuse for his errors.

The Petition

The Comelec gravely abused its discretion when it gave due course to the petition for certiorari

Sevilla argues that the Comelec gravely abused its discretion when it entertained So's petition
despite its loss of jurisdiction to entertain the petition after the court a quo's dismissal order
became final and executory due to So's wrong choice of remedy. Instead of filing an appeal
within five (5) days from receipt of the Order and paying the required appeal fee, So filed a
motion for reconsideration a prohibited pleading that did not stop the running of the prescriptive
period to file an appeal. Sevilla also emphasizes that So's petition for certiorari should not have
been given due course since it is not a substitute for an appeal and may only be allowed if there
is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law.12 chanroblesvirtualawlibrary

The dismissal of the election protest was proper

Sevilla also contends that the dismissal was not tainted with grave abuse of discretion since the
MeTC Judge complied with the rules; she made clear, specific and detailed explanations
pertaining to the specific strokes, figures or letters showing that the ballots had been written by
one person. Granting that the decision was tainted with errors, certiorari would still not lie
because a mere error of judgment is not synonymous with grave abuse of discretion. Lastly, a
liberal application of the rules cannot be made to a petition which offers no explanation for the
non-observance of the rules.13 chanroblesvirtualawlibrary

On November 13, 2012,14 the Court resolved to require the Comelec and the respondent to
comment on the petition and to observe the status quo prevailing before the issuance of the
assailed Comelec Second Division's Resolution of May 14, 2012 and the Comelec en banc's
Resolution of October 6, 2012.15 chanroblesvirtualawlibrary

In his Comment, the respondent contends that the petition was filed prematurely. He emphasizes
that the October 6, 2012 Resolution of the Comelec en banc was not a majority decision
considering that three Commissioners voted for the denial of the motion for reconsideration and
the three others voted to grant the same. So notes that the assailed October 6, 2012 Resolution
was deliberated upon only by six (6) Commissioners because the 7th
Commissioner had not yet been appointed by the President at that time. Considering that the
October 6, 2012 Resolution was not a majority decision by the Comelec en banc, So prays for
the dismissal of the petition so that it can be remanded to the Comelec for a rehearing by a full
and complete Commission.16 chanroblesvirtualawlibrary

The Court's Ruling

We resolve to DISMISS the petition for having been prematurely filed with this Court, and
remand the case to the COMELEC for its appropriate action.

The October 6, 2012 Comelec en banc's Resolution lacks legal effect as it is not a majority
decision required by the Constitution and by the Comelec Rules of Procedure

Section 7, Article IX-A of the Constitution requires that "each Commission shall decide by a
majority vote of all its members, any case or matter brought before it within sixty days from the
date of its submission for decision or resolution."17 Pursuant to this Constitutional mandate, the
Comelec provided in Section 5(a), Rule 3 of the Comelec Rules of Procedure the votes required
for the pronouncement of a decision, resolution, order or ruling when the Comelec sits en banc,
viz.:
chanroblesvirtualawlibrary

Section 5. Quorum; Votes Required. - (a) When sitting en banc, four (4) Members of the
Commission shall constitute a quorum for the purpose of transacting business. The concurrence
of a majority of the Members of the Commission shall be necessary for the pronouncement of a
decision, resolution, order or ruling. [italics supplied; emphasis ours]

We have previously ruled that a majority vote requires a vote of four members of the Comelec en
banc. In Marcoleta v. Commission on Elections,18 we declared "that Section 5(a) of Rule 3 of the
Comelec Rules of Procedure and Section 7 of Article IX-A of the Constitution require that a
majority vote of all the members of the Comelec en banc, and not only those who participated
and took part in the deliberations, is necessary for the pronouncement of a decision, resolution,
order or ruling."

In the present case, while the October 6, 2012 Resolution of the Comelec en banc appears to
have affirmed the Comelec Second Division's Resolution and, in effect, denied Sevilla's motion
for reconsideration, the equally divided voting between three Commissioners concurring and
three Commissioners dissenting is not the majority vote that the Constitution and the Comelec
Rules of Procedure require for a valid pronouncement of the assailed October 6, 2012 Resolution
of the Comelec en banc.

In essence, based on the 3-3 voting, the Comelec en banc did not sustain the Comelec Second
Division's findings on the basis of the three concurring votes by Commissioners Tagle, Velasco
and Yusoph; conversely, it also did not overturn the Comelec Second Division on the basis of the
three dissenting votes by Chairman Brillantes, Commissioner Sarmiento and Commissioner Lim,
as either side was short of one (1) vote to obtain a majority decision. Recall that under Section 7,
Article IX-A of the Constitution, a majority vote of all the members of the Commission en banc
is necessary to arrive at a ruling. In other words, the vote of four (4) members must always be
attained in order to decide, irrespective of the number of Commissioners in attendance. Thus, for
all intents and purposes, the assailed October 6, 2012 Resolution of the Comelec en banc had no
legal effect whatsoever except to convey that the Comelec failed to reach a decision and that
further action is required.

The October 6, 2012 Comelec en banc's Resolution must be reheard pursuant to the Comelec
Rules of Procedure

To break the legal stalemate in case the opinion is equally divided among the members of the
Comelec en banc, Section 6, Rule 18 of the Comelec Rules of Procedure mandates a rehearing
where parties are given the opportunity anew to strengthen their respective positions or
arguments and convince the members of the Comelec en banc of the merit of their case.19
Section 6, Rule 18 of the Comelec Rules of Procedure reads: chanroblesvirtualawlibrary

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

In Juliano v. Commission on Elections,20 only three members of the Comelec en banc voted in
favor of granting Estrelita Juliano's motion for reconsideration (from the Decision of the
Comelec Second Division dismissing her petition for annulment of proclamation of Muslimin
Sema as the duly elected Mayor of Cotabato City), three members dissented, and one member
took no part. In ruling that the Comelec acted with grave abuse of discretion when it failed to
order a rehearing required by the Comelec Rules of Procedure, the Court ruled: chanroblesvirtualawlibrary

Section 6, Rule 18 of the Comelec Rules of Procedure specifically states that if the opinion of the
Comelec En Banc is equally divided, the case shall be reheard. The Court notes, however, that
the Order of the Comelec En Banc dated February 10, 2005 clearly stated that what was
conducted was a mere "re-consultation."

A "re-consultation" is definitely not the same as a "rehearing."

A consultation is a "deliberation of persons on some subject;" hence, a re-consultation means a

second deliberation of persons on some subject.

Rehearing is defined as a "second consideration of cause for purpose of calling to court's or

administrative board's attention any error, omission, or oversight in first consideration. A retrial
of issues presumes notice to parties entitled thereto and opportunity for them to be heard."
(italics supplied). But as held in Samalio v. Court of Appeals,

A formal or trial-type hearing is not at all times and in all instances essential. The requirements
are satisfied where the parties are afforded fair and reasonable opportunity to explain their side
of the controversy at hand.
Thus, a rehearing clearly presupposes the participation of the opposing parties for the purpose of
presenting additional evidence, if any, and further clarifying and amplifying their arguments;
whereas, a re-consultation involves a re-evaluation of the issues and arguments already on hand
only by the members of the tribunal, without the participation of the parties.

In Belac v. Comelec, when the voting of the Comelec En Banc on therein petitioner's motion for
reconsideration was equally divided, the Comelec En Banc first issued an order setting the case
for hearing and allowed the parties to submit their respective memoranda before voting anew on
therein petitioner's motion for reconsideration. This should have been the proper way for the
Comelec En Banc to act on herein petitioner's motion for reconsideration when the first voting
was equally divided. Its own Rules of Procedure calls for a rehearing where the parties would
have the opportunity to strengthen their respective positions or arguments and convince the
members of the Comelec En Banc of the merit of their case. Thus, when the Comelec En Banc
failed to give petitioner the rehearing required by the Comelec Rules of Procedure, said body
acted with grave abuse of discretion.21 (italics supplied; emphases ours)

To the same effect, in Marcoleta v. Commission on Elections,22 the Court ruled that the Comelec
en banc did not gravely abuse its discretion when it ordered a rehearing of its November 6, 2007
Resolution for failing to muster the required majority voting. The Court held: chanroblesvirtualawlibrary

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

To reiterate, neither the assenters nor dissenters can claim a majority in the En Banc Resolution
of November 6, 2007. The Resolution served no more than a record of voters, lacking in legal
effect despite its pronouncement of reversal of the First Division Resolution. According, the
Comelec did not commit any grave abuse of discretion in ordering a rehearing.23 (italics
supplied; citation omitted)

In the present case, it appears from the records that the Comelec en banc did not issue an Order
for a rehearing of the case in view of the filing in the interim of the present petition for certiorari
by Sevilla. In both the cases of Juliano and Marcoleta, cited above, we remanded the cases to the
Comelec en banc for the conduct of the required rehearing pursuant to the Comelec Rules of
Procedure. Based on these considerations, we thus find that a remand of this case is necessary for
the Comelec en banc to comply with the rehearing requirement of Section 6, Rule 18 of the
Comelec Rules of Procedure.

WHEREFORE, we hereby DISMISS the petition and REMAND SPR (BR GY-SK) No. 70-2011
to the Comelec en bane for the conduct of the required rehearing under the Comelec Rules of
Procedure. The Comelec en bane is hereby ORDERED to proceed with the rehearing with
utmost dispatch.

No costs.
SO ORDERED.

ARSENIO ALVAREZ, petitioner, vs. COMMISSION ON ELECTIONS and LA RAINNE

ABAD-SARMIENTO, respondents.

RESOLUTION

QUISUMBING, J.:

This petition for certiorari assails the Resolution of the Commission on Elections En Banc,
denying the Motion for Reconsideration of herein petitioner and affirming the Resolution of the
Second Division of the COMELEC that modified the decision dated December 4, 1997 of the
Metropolitan Trial Court, Br. 40, of Quezon City in Election Case No. 97-684. Said decision
declared herein private respondent La Rainne Abad-Sarmiento the duly elected Punong
Barangay of Barangay Doa Aurora, Quezon City during the May 12, 1997 elections; directed the
herein petitioner to vacate and turnover the office of Punong Barangay to private respondent
upon the finality of the resolution; and directed the Clerk of the COMELEC to notify the
appropriate authorities of the resolution upon final disposition of this case, in consonance with
the provisions of Section 260 of B.P. Blg. 881 otherwise known as the Omnibus Election Code,
as amended.xxi[1]

The facts of the case are as follows:

On May 12, 1997, petitioner was proclaimed duly elected Punong Barangay of Doa Aurora,
Quezon City. He received 590 votes while his opponent, private respondent Abad-Sarmiento,
obtained 585 votes. Private respondent filed an election protest claiming irregularities, i.e.
misreading and misappreciation of ballots by the Board of Election Inspectors. After petitioner
answered and the issues were joined, the Metropolitan Trial Court ordered the reopening and
recounting of the ballots in ten contested precincts. It subsequently rendered its decision that
private respondent won the election. She garnered 596 votes while petitioner got 550 votes after
the recount.xxii[2]

On appeal, the Second Division of the COMELEC ruled that private respondent won over
petitioner. Private respondent, meanwhile, filed a Motion for Execution pending appeal which
petitioner opposed. Both petitioners Motion for Reconsideration and private respondents Motion
for Execution pending appeal were submitted for resolution. The COMELEC En Banc denied the
Motion for Reconsideration and affirmed the decision of the Second Division.xxiii[3] It granted
the Motion for Execution pending appeal.

Petitioner brought before the Court this petition for Certiorari alleging grave abuse of discretion
on the part of the COMELEC when:

(1) it did not preferentially dispose of the case;

(2) it prematurely acted on the Motion for Execution pending appeal; and

(3) it misinterpreted the Constitutional provision that decisions, final orders, or rulings of the
Commission on Election contests involving municipal and barangay officials shall be final,
executory and not appealable.

First, petitioner avers that the Commission violated its mandate on preferential disposition of
election contests as mandated by Section 3, Article IX-C, 1987 Constitution as well as Section
257, Omnibus Election Code that the COMELEC shall decide all election cases brought before it
within ninety days from the date of submission. He points out that the case was ordered
submitted for resolution on November 15, 1999xxiv[4] but the COMELEC En Banc promulgated
its resolution only on April 4, 2000,xxv[5] four months and four days after November 14, 1999.

We are not unaware of the Constitutional provision cited by petitioner. We agree with him that
election cases must be resolved justly, expeditiously and inexpensively. We are also not unaware
of the requirement of Section 257 of the Omnibus Election Code that election cases brought
before the Commission shall be decided within ninety days from the date of submission for
decision.xxvi[6] The records show that petitioner contested the results of ten (10) election
precincts involving scrutiny of affirmation, reversal, validity, invalidity, legibility, misspelling,
authenticity, and other irregularities in these ballots. The COMELEC has numerous cases before
it where attention to minutiae is critical. Considering further the tribunals manpower and logistic
limitations, it is sensible to treat the procedural requirements on deadlines realistically. Overly
strict adherence to deadlines might induce the Commission to resolve election contests hurriedly
by reason of lack of material time. In our view this is not what the framers of the Code had
intended since a very strict construction might allow procedural flaws to subvert the will of the
electorate and would amount to disenfranchisement of voters in numerous cases.

Petitioner avers the COMELEC abused its discretion when it failed to treat the case
preferentially. Petitioner misreads the provision in Section 258 of the Omnibus Election Code. It
will be noted that the preferential disposition applies to cases before the courtsxxvii[7]and not
those before the COMELEC, as a faithful reading of the section will readily show.

Further, we note that petitioner raises the alleged delay of the COMELEC for the first time. As
private respondent pointed out, petitioner did not raise the issue before the COMELEC when the
case was pending before it. In fact, private respondent points out that it was she who filed a
Motion for Early Resolution of the case when it was before the COMELEC. The active
participation of a party coupled with his failure to object to the jurisdiction of the court or quasi-
judicial body where the action is pending, is tantamount to an invocation of that jurisdiction and
a willingness to abide by the resolution of the case and will bar said party from later impugning
the court or the bodys jurisdiction.xxviii[8] On the matter of the assailed resolution, therefore, we
find no grave abuse of discretion on this score by the COMELEC.

Second, petitioner alleges that the COMELEC En Banc granted the Motion for Execution
pending appeal of private respondents on April 2, 2000 when the appeal was no longer pending.
He claims that the motion had become obsolete and unenforceable and the appeal should have
been allowed to take its normal course of finality and execution after the 30-day period.
Additionally, he avers it did not give one good reason to allow the execution pending appeal.

We note that when the motion for execution pending appeal was filed, petitioner had a motion
for reconsideration before the Second Division. This pending motion for reconsideration
suspended the execution of the resolution of the Second Division. Appropriately then, the
division must act on the motion for reconsideration. Thus, when the Second Division resolved
both petitioners motion for reconsideration and private respondents motion for execution
pending appeal, it did so in the exercise of its exclusive appellate jurisdiction. The requisites for
the grant of execution pending appeal are: (a) there must be a motion by the prevailing party with
notice to the adverse party; (b) there must be a good reason for the execution pending appeal;
and (c) the good reason must be stated in a special order.xxix[9] In our view, these three requisites
were present. In its motion for execution, private respondent cites that their case had been
pending for almost three years and the remaining portion of the contested term was just two more
years. In a number of similar cases and for the same good reasons, we upheld the COMELECs
decision to grant execution pending appeal in the best interest of the electorate.xxx[10]
Correspondingly, we do not find that the COMELEC abused its discretion when it allowed the
execution pending appeal.

Third, petitioner contends that the COMELEC misinterpreted Section 2 (2), second paragraph,
Article IX-C of the 1987 Constitution. He insists that factual findings of the COMELEC in
election cases involving municipal and barangay officials may still be appealed. He cites
jurisprudence stating that such decisions, final orders or rulings do not preclude a recourse to this
Court by way of a special civil action for certiorari,xxxi[11] when grave abuse of discretion has
marred such factual determination,xxxii[12] and when there is arbitrariness in the factual
findings.xxxiii[13]

We agree with petitioner that election cases pertaining to barangay elections may be appealed by
way of a special civil action for certiorari. But this recourse is available only when the
COMELECs factual determinations are marred by grave abuse of discretion. We find no such
abuse in the instant case. From the pleadings and the records, we observed that the lower court
and the COMELEC meticulously pored over the ballots reviewed. Because of its fact-finding
facilities and its knowledge derived from actual experience, the COMELEC is in a peculiarly
advantageous position to evaluate, appreciate and decide on factual questions before it. Here, we
find no basis for the allegation that abuse of discretion or arbitrariness marred the factual
findings of the COMELEC. As previously held, factual findings of the COMELEC based on its
own assessments and duly supported by evidence, are conclusive on this Court, more so in the
absence of a grave abuse of discretion, arbitrariness, fraud, or error of law in the questioned
resolutions.xxxiv[14] Unless any of these causes are clearly substantiated, the Court will not
interfere with the COMELECs findings of fact.

WHEREFORE, the instant petition is DISMISSED, and the En Banc Resolution of the
Commission on Election is AFFIRMED. Costs against petitioner.

SO ORDERED.