ELECTION PROTEST CASES (Votes for Candidates Leo M. Zaragoza and Uriel G.
Borja
Nature: Jurisdiction: Distinction
EN BANC
IMELDA Q. DIMAPORO,
Petitioner,
- versus -
COMMISSION ON ELECTIONS
and VICENTE BELMONTE,
Respondents.
G.R. No. 179285
Promulgated:
February 11, 2008
RESOLUTION
REYES, R.T., J.:
UNDER consideration is a petition for certiorari via Rule 65 of
the 1997 Rules of Civil Procedure assailing the (1)
Resolution[1] of the Commission on Elections (COMELEC)
Second Division dated July 10, 2007 and (2) Resolution[2] of
the COMELEC En Banc promulgated on September 5, 2007.
The antecedent facts:
Petitioner Imelda Dimaporo and private respondent Vicente
Belmonte were both candidates for Representative of the 1st
Congressional District of Lanao del Norte during theMay 14,
2007 elections.
The said legislative district is composed of seven (7) towns and
one (1) city, namely: the Municipalities of Linamon, Kauswagan,
Bacolod, Maigo, Kolambugan, Tubod, Baroy and the City of
Iligan.
On May 22, 2007, the Provincial Board of Canvassers[3]
(PBOC) completed the canvass of the Certificates of Canvass
(COCs) for the City of Iligan and four (4) of the municipalities,
namely, Linamon, Kolambugan, Tubod and Baroy. Upon
adjournment on May 22, 2007, the said PBOC issued a
Certification showing respondent Belmonte in the lead, with
52,783 votes, followed by candidate Badelles with 39,315
votes, and petitioner Dimaporo in third place with only 35,150
votes, viz.:
OFFICIAL PARTIAL TOTAL VOTES
FOR MEMBER, HOUSE OF REPRESENTATIVES
BASED ON THE CANVASS BY THE PBOC
OF THE COCs OF FOUR (4) MUNICIPALITIES OF 1st
DISTRICT AND OF THE COC OF ILIGAN CITY
omitted)
Sometime in the evening of May 19, 2007, the ballot boxes
containing the COCs of Kauswagan, Bacolod and Maigo were
allegedly forcibly opened, their padlocks destroyed and the
envelopes containing the COCs and the Statement of Votes
(SOV) opened and violated. When the PBOC was about to
resume the canvassing at around 9:00 a.m. the succeeding
day, the forced opening of the ballot boxes was discovered
prompting the PBOC to suspend the canvass.
On May 22, 2007, the Commissioner-in-Charge of CARAGA
Region, Nicodemo Ferrer, issued a Resolution ordering that the
canvassing of the ballots contained in the tampered ballot
boxes of Kauswagan, Maigo and Bacolod be suspended until
after the National Bureau of Investigation (NBI) submits its
findings to the Commission.
On May 24, 2007, the NBI submitted its report. It found as
follows:
In our assessment and observation, the culprit(s) managed to
enter the room of the Vice-Governor [Irma Umpa Ali] which
he/she used as a staging and hiding place while persons are
still allowed to enter the building during the canvassing. On the
night of May 19, 2007 the culprit(s) hide (sic) in the said room
and waited until there were no persons allowed inside the
building except the provincial guard on duty who was manning
the ground floor at the area near the entrance door. The
culprit(s) then entered the Session Hall by using some hard ID
Card or any similar object which was inserted in between the
door and door-lock, and once inside specifically destroyed the
padlocks of the ballot boxes for the Municipalities of Bacolod,
Maigo and Kauswagan. x x x.
On May 24, 2007, Atty. Dennis L. Ausan, Regional Director,
Region X, issued a Very Urgent Memorandum addressed to the
COMELEC En Banc, enclosing the NBI report, with the
following recommendation:
[T]hat the Commission En Banc comes out with an order
directing the Provincial Board of Canvassers of Lanao del
Norte to immediately reconvene solely for the purpose of
retrieving the three envelopes supposedly containing the COCs
from the said three (3) municipalities, to open the same in the
presence of all watchers, counsels and representatives of all
contending parties and the accredited Citizens Arm of the
Commission and right there and then to turn over the same to
the representative of the NBI for technical examination by their
questioned documents expert.
Further, it is requested that it must also be incorporated in the
En Bancs order the directive for the PBOC to turnover to the
NBI the copies of the COC of the three (3) municipalities
intended for the Commission and the Election Officer for
purposes of comparison with that retrieved from the questioned
ballot box.
Thereafter, on May 25, 2007, COMELEC issued Resolution No.
8073 adopting in part the recommendation of Atty. Ausan
directing the PBOC of Lanao del Norte to immediately
reconvene solely for the purpose of retrieving the three
envelopes supposedly containing the COCs from the
municipalities of Kauswagan, Bacolod and Maigo and to open
the same in the presence of all watchers, counsels, and
representatives of all contending parties and the accredited
Citizens Arm of the Commission and right there and then to
direct the representatives of the dominant majority and minority
parties to present their respective copies of the COCs for
comparison with the COCs intended for the COMELEC and
with the COCs inside the envelope just opened.
The COMELEC further resolved that when discrepancies show
signs of tampering and falsifying, the PBOC is to immediately
turnover to the NBI the copies of the COCs of said three (3)
municipalities intended for the Commission and the Election
Officer for purposes of comparison with those retrieved from
the questioned ballot boxes.
On May 30, 2007, Commissioner Nicodemo Ferrer issued his
Memorandum relieving the PBOC of its functions and
constituting a special provincial board of canvassers (SPBOC).
[4] He further ordered as follows:
The previous En Banc Resolution No. 8073 promulgated on
May 25, 2007 is hereby amended to state that upon the
opening of the envelopes containing the COCs found inside the
tampered ballot boxes for the towns of Kauswagan, Maigo and
Bacolod, the same shall at once be canvassed in the presence
of the candidates and/or their representatives, taking note of
whatever objections that they may interpose on any of the
entries in said COCs.
However, no canvassing took place on May 30, 2007 in view of
the human barricade of some 100 persons who effectively
blocked the entrance to the Sangguniang Panlalawiganbuilding.
On May 31, 2007, Commissioner Nicodemo Ferrer issued
another Memorandum constituting another SPBOC for Lanao
del Norte composed of Atty. Lordino Salvana, as chairman, with
Atty. Anna Ma. Dulce Cuevas-Banzon and Atty. Gina Luna
Zayas, as members. In said Memorandum, Ferrer gave the
following instructions:
Considering the heightened controversies occasioned by the
admitted tampering of the three (3) ballot boxes containing the
COCs of said towns to be canvassed, you are directed to
refrain from proclaiming any candidate until ordered by the
Commission through the undersigned Commissioner-in-Charge
of Region X. Appeal, if any, should be immediately elevated to
the Commission for evaluation.
This amends the urgent memorandum addressed to Atty.
Joseph Hamilton Cuevas dated May 30, 2007.
The chairman and members of the new SPBOC arrived at the
venue of the canvassing at Tubod, Lanao del Norte at 10:15
p.m. on May 31, 2007. However, the human barricade which
blocked the entrance to the Sangguniang Panlalawigan
building had now swelled into a horde of some 300 persons. As
a consequence, the canvassing still did not take place.
On June 1, 2007, the new SPBOC convened and opened the
ballot boxes for the towns of Kauswagan, Maigo and Bacolod.
As the SPBOC proceeded with the canvass, private respondent
Belmonte objected to the inclusion of the COCs of the
concerned municipalities on the following grounds:
1.) There were manifest errors in the COCs;
2.) The numbers of votes in words and in figures opposite the
names of appellant and appellees Badelles and Dimaporo
contain intercalations done through the application of a white
correction fluid (SnoPake), which intercalations are visible to
the naked eye;
3.) The COCs were obviously manufactured;
4.) The COCs were tampered or falsified;
5.) The intercalations in the COCs were not made or prepared
by the Municipal Board of Canvassers (MBOC) concerned; and
6.) The SOVs likewise contain intercalations done through
SnoPake resulting in an altered number of votes for appellant
and respondents.
The SPBOC denied Belmontes objections due to lack of
jurisdiction.
On that same day, June 1, 2007, Belmonte filed his verified
notice of appeal before the SPBOC. On June 5, 2007,
Belmonte filed his appeal with appeal memorandum. On June
7, 2007, Belmonte filed with the COMELEC his alternative
petition to correct manifest errors.
In the assailed Resolution of July 10, 2007, the Second
Division of the COMELEC granted Belmontes petition. While
conceding that it has no jurisdiction to hear and decide pre-
proclamation cases against members of the house, it took
cognizance of the petition as one for the correction of manifest
errors, hence, within its jurisdiction as per the last sentence of
Section 15 of Republic Act (R.A.) No. 7166. The law provides:
Sec. 15. Pre-proclamation Cases in Elections for President,
Vice-President, Senator, and Member of the House of
Representatives. For purpose of the elections for president,
vice-president, senator, and member of the house of
representatives, no pre-proclamation cases shall be allowed on
matters relating to the preparation, transmission, receipt,
custody and appreciation of election returns or the certificates
of canvass, as the case may be, except as provided for in Sec.
30 hereof. However, this does not preclude the authority of the
appropriate canvassing bodymotu proprio or upon written
complaint of an interested person to correct manifest errors in
the certificate of canvass or election returns before it.
(Underscoring supplied)
The dispositive portion of the challenged Resolution reads:
WHEREFORE, premises considered, the Commission (Second
Division) resolves to GRANT the Petition and the questioned
Rulings of the respondent MBC is hereby REVERSEDAND
SET ASIDE. The questioned COCs are hereby ordered
excluded and should not be canvassed.
The Board of Canvassers is hereby directed to RECONVENE
here in Manila (for security purposes) and issue a new
certificate of canvass of votes excluding the election returns
subject of this appeal and substituting the proper entries as are
evident in the authentic copies of the election returns related to
the subject COCs. The winning candidate who garners the
most number of votes in accordance with our observation shall
after proper canvass be proclaimed by the Board of
Canvassers.
SO ORDERED.
On July 13, 2007, Dimaporo moved for a reconsideration. This
was denied in the COMELECs equally assailed En Banc
Resolution of September 5, 2007. The second Resolution
prompted Dimaporo to file, on September 7, 2007, the present
petition for certiorari with prayer for the issuance of a temporary
restraining order and/or writ of preliminary injunction
questioning the jurisdiction of the COMELEC over the case.
In her petition, Dimaporo claims that the subject matter
involved does not pertain to manifest errors but to the
preparation, transmission, receipt, custody and appreciation of
certificates of canvass, a matter outside the realm of the
COMELECs jurisdiction when a congressional seat is involved.
She cites Section 15 of R.A. No. 7166.
Dimaporo prays as follows:
1. upon filing of this petition, a temporary restraining order be
issued by the Honorable Court enjoining the implementation of
the questioned Resolution of July 10, 2007 of the COMELEC
(Second Division) and the COMELEC En Banc Resolution
promulgated on September 5, 2007 affirming the Second
Division upon such bond as may be required by the Honorable
Court;
2. after due hearing, the questioned Resolution of July 10, 2007
of the COMELEC (Second Resolution) and the COMELEC En
Banc Resolution promulgated on September 5, 2007 be both
reversed and set aside;
3. petitioner be ordered proclaimed as the duly elected
Representative of the First Congressional District of the
Province of Lanao del Norte in the May 14, 2007 elections;
4. for such other relief as may be deemed just and equitable
under the premises.[5]
On September 13, 2007, Dimaporo filed an urgent motion
reiterating the prayer for the issuance of a temporary
restraining order. This was followed by the filing of a
manifestation and motion for the issuance of a status quo ante
order and/or temporary restraining order on September 25,
2007. On October 1, 2007, Dimaporo, again, filed a motion to
maintain the status quo at the time of the filing of the petition.
On October 2, 2007, the Court En Banc, acting upon
Dimaporos motion for the issuance of a status quo ante order
and/or temporary restraining order, issued the following
Resolution:
Acting on the Manifestation and Motion for the Issuance of a
Status Quo Ante Order and/or Temporary Restraining Order
dated September 12, 2007 filed by counsel for petitioner, the
Court Resolved to require public respondent Commission on
Elections to observe the STATUS QUO prevailing at the time of
the filing of the petition and refrain from implementing the
resolutions ofJuly 10, 2007 and September 5, 2007 of the
COMELEC Second Division and En Banc, respectively.
The Court further Resolved to NOTE the Motion to Maintain the
Status Quo at the Time of the Filing of the Petition, dated
October 1, 2007, filed by counsel for petitioner.
The succeeding day, October 3, 2007, a status quo ante order
was issued to the COMELEC stating:
NOW, THEREFORE, effective immediately and continuing until
further orders from this Court, You, Respondent COMELEC,
your agents, representatives, or persons acting in your place
and stead, are hereby required to observe the STATUS QUO
that is prevailing at the time of the filing of the petition.
On October 8, 2007, private respondent Belmonte filed his
comment in which he brought to Our attention that on
September 26, 2007, even before the issuance of the status
quo ante order of the Court, he had already been proclaimed by
the PBOC as the duly elected Member of the House of
Representatives of the First Congressional District of Lanao del
Norte. On that very same day, he had taken his oath before
Speaker of the House Jose de Venecia, Jr. and assumed his
duties accordingly.
In light of this development, jurisdiction over this case has
already been transferred to the House of Representatives
Electoral Tribunal (HRET). When there has been a
proclamation and a defeated candidate claims to be the winner,
it is the Electoral Tribunal already that has jurisdiction over the
case.[6]
In Lazatin v. Commission on Elections,[7] the Court had this to
say:

The petition is impressed with merit because petitioner has
been proclaimed winner of the Congressional elections in the
first district of Pampanga, has taken his oath of office as such,
and assumed his duties as Congressman. For this Court to
take cognizance of the electoral protest against him would be
to usurp the function of the House Electoral Tribunal. The
alleged invalidity of the proclamation (which had been
previously ordered by the COMELEC itself) despite alleged
irregularities in connection therewith, and despite the pendency
of protests of the rival candidates, is a matter that is also
addressed, considering the premises, to the sound judgment of
the Electoral Tribunal. (Emphasis supplied)
This was reiterated in Aggabao v. Commission on Elections:[8]
The HRET has sole and exclusive jurisdiction overall contests
relative to the election, returns, and qualifications of members
of the House of Representatives. Thus, once a winning
candidate has been proclaimed, taken his oath, and assumed
office as a Member of the House of Representatives,
COMELECs jurisdiction over election contests relating to his
election, returns, and qualifications ends, and the HRETs own
jurisdiction begins.
The COMELEC was not amiss in quickly deciding Belmontes
petition to correct manifest errors then proclaiming him the
winner. Election cases are imbued with public interest.[9] They
involve not only the adjudication of the private interest of rival
candidates but also the paramount need of dispelling the
uncertainty which beclouds the real choice of the electorate
with respect to who shall discharge the prerogatives of the
offices within their gift.[10] It has always been the policy of the
election law that pre-proclamation controversies should be
summarily decided, consistent with the laws desire that the
canvass and proclamation be delayed as little as possible.[11]
Considering that at the time of proclamation, there had yet
been no status quo ante order or temporary restraining order
from the court, such proclamation is valid and, as such, it has
vested the HRET with jurisdiction over the case as Belmonte
has, with the taking of his oath, already become one of their
own.
Hence, should Dimaporo wish to pursue further her claim to the
congressional seat, the filing of an election protest before the
HRET would be the appropriate course of action.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Republic of the Philippines
Supreme Court
Manila
EN BANC
CONGRESSWOMAN LUCY MARIE TORRES-GOMEZ
Petitioner,
- versus -
EUFROCINO C. CODILLA, JR. and HON. HOUSE OF
REPRESENTATIVES ELECTORAL TRIBUNAL
Respondents. G. R. No. 195191
Promulgated:
March 20, 2012
DECISION
SERENO, J.:
This is a Petition for Certiorari under Rule 65 of the Rules of
Court, with application for Temporary Restraining Order and/or
Writ of Preliminary Prohibitory Injunction. The Petition seeks to
annul and set aside Resolution No. 10-482 of the House of
Representatives Electoral Tribunal (HRET) in HRET Case No.
10-009 (EP) entitled Eufrocino C. Codilla, Jr. v. Lucy Marie
Torres-Gomez (Fourth District, Leyte), which denied the Motion
for Reconsideration filed by petitioner.
Statement of the Facts and the Case
On 30 November 2009, Richard I. Gomez (Gomez) filed his
Certificate of Candidacy for representative of the Fourth
Legislative District of Leyte under the Liberal Party of the
Philippines. On even date, private respondent Codilla Jr. filed
his Certificate of Candidacy for the same position under Lakas
Kampi CMD.
On 6 December 2009, Buenaventura O. Juntilla (Juntilla), a
registered voter of Leyte, filed a Verified Petition for Gomezs
disqualification with the Commission on Elections (COMELEC)
First Division on the ground that Gomez lacked the residency
requirement for a Member of the House of Representatives.
In a Resolution dated 17 February 2010, the COMELEC First
Division granted Juntillas Petition and disqualified Gomez. On
20 February 2010, the latter filed a Motion for Reconsideration
with the COMELEC En Banc, which dismissed it on 4 May
2010, six days before the May 2010 national and local
elections. The dispositive portion of the COMELECs
Resolution[1] is worded as follows:
WHEREFORE, premises considered, the motion for
reconsideration filed by the Respondent is DISMISSED for lack
of merit. The Resolution of the Commission (First Division) is
hereby AFFIRMED.
SO ORDERED.[2]
On the same date, Gomez filed a Manifestation with the
COMELEC En Banc, alleging that, without necessarily
admitting the allegations raised by Juntilla, he wasaccepting
the aforementioned Resolution with finality, in order to enable
his substitute to facilitate the filing of the necessary documents
for substitution.
On 5 May 2010, petitioner Lucy Marie Torres-Gomez filed her
Certificate of Candidacy as substitute for the position of
representative of the Fourth Congressional District for the
Province of Leyte vice Gomez, her husband.
On 6 May 2010, Juntilla filed a Counter-Manifestation with the
COMELEC En Banc. At the same time, he wrote a letter to Atty.
Ferdinand T. Rafanan, Director of the Law Department of the
COMELEC, alleging the invalidity of the proposed substitution
of Gomez by petitioner.
On 8 May 2010, the COMELEC En Banc issued Resolution No.
8890, which approved and adopted the recommendation of its
Law Department to allow petitioner as a substitute candidate for
Gomez for representative of the Fourth Legislative District of
Leyte.
On 9 May 2010, Juntilla filed an Extremely Urgent Motion for
Reconsideration of the above COMELEC Resolution No. 8890.
Pending resolution of his motion, the national and local
elections were conducted as scheduled.
After the casting, counting and canvassing of votes in the said
elections, petitioner emerged as the winner with 101,250 votes
or a margin of 24,701 votes over private respondent Codilla,
who obtained 76,549 votes.
On 11 May 2010, Codilla filed an Urgent Ex-Parte Motion to
Suspend the Proclamation of Substitute Candidate Lucy Marie
T. Gomez (vice Richard I. Gomez) as the Winning Candidate of
the May 10, 2010 Elections for the Fourth Congressional
District of Leyte.
On the same date, Juntilla filed an Extremely Urgent Motion to
resolve the pending Motion for Reconsideration filed on 9 May
2010 relative to Resolution No. 8890 and to immediately order
the Provincial Board of Canvassers of the Province of Leyte to
suspend the proclamation of petitioner as a Member of the
House of Representatives, Fourth District, Province of Leyte.
On 12 May 2010, petitioner was proclaimed the winning
candidate for the congressional seat of the Fourth District of
Leyte.
Accordingly, on 21 May 2010, private respondent Codilla filed a
Petition with public respondent HRET against petitioner
docketed as HRET Case No. 10-009 (Election Protest).
On 2 July 2010, petitioner filed her Verified Answer to Codillas
Election Protest questioning the alleged lack of the required
Verification and praying for its dismissal.
On 8 July 2010, Codilla filed a Reply to petitioners Verified
Answer.
In an Order issued by public respondent HRET, the instant case
was set for preliminary conference on 2 September 2010.
On 1 September 2010, unsatisfied with the Order of the HRET,
petitioner filed an Urgent Manifestation and Motion, persistent
in her position that Codillas Election Protest should be
dismissed based on the grounds raised in her Verified Answer.
She also prayed for the deferment of the preliminary
conference until after the resolution of the said motion.
On 9 September 2010, the HRET issued the assailed
Resolution No. 10-282[3] resolving the Urgent Manifestation
and Motion filed by petitioner, the dispositive portion of which
provides:
The Tribunal NOTES the Urgent Manifestation and Motion filed
on September 1, 2010 by the protestee; REITERATES its ruling
in Resolution No. 10-160 dated July 29, 2010 that the protest
cannot be considered insufficient in form, considering that the
examination of the original copy of the protest filed before the
Tribunal had revealed the existence of the required verification;
and DENIES the respondents motion for deferment of the
preliminary conference scheduled on September 2, 2010.[4]
Accordingly, on 30 September 2010, petitioner filed with public
respondent HRET a Motion for Reconsideration of the above
Resolution No. 10-282.
On 22 November 2010, public respondent HRET issued
Resolution No. 10-482[5] denying petitioners Motion for
Reconsideration, ruling as follows:
WHEREFORE, the Tribunal DENIES the instant motion for
reconsideration as regards the issues pertaining to
absence/defect of the verification and propriety of the election
protest; and DIRECTS the protestant to have his verification
properly notarized.[6]
Thereafter, petitioner filed the instant Petition for Certiorari[7]
dated 7 February 2011. The Petition raises the following
grounds:
A.
THE PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT REFUSED TO DISMISS THE
ELECTION PROTEST DESPITE AN ADMITTEDLY
DEFECTIVE VERIFICATION.
B.
THE PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS
OF JURISDICTION WHEN IT ALLOWED THE PROTESTANT
TO RAISE ISSUES ON QUALIFICATION OF CANDIDATES IN
AN ELECTION PROTEST.[8]
Petitioner claims that there was a material defect in the
Verification of the Election Protest, a requirement explicitly
provided for in Rule 16 of the 2004 Rules of the House of
Representatives Electoral Tribunal (HRET Rules).[9] The
verification being a mandatory requirement, the failure to
comply therewith is a fatal defect that affects the very
jurisdiction of the HRET.
On the second issue, petitioner claims that what is in question
in the Election Protest is her qualification as a Member of the
House of Representatives, and not the number of votes cast.
Her qualification is allegedly not a proper ground for an election
protest, in which the issues should be the appreciation of
ballots and the correctness and number of votes of each
candidate.
On 15 February 2011 this Court required respondents to file
their comment on the Petition. Thereafter, Codilla filed his
Comment/Opposition dated 28 April 2011. In his Comment, he
argues that there was no grave abuse of discretion on the part
of the HRET in issuing the assailed Resolutions. He clarifies
that the Election Protest that he filed contained a validly
executed Verification and Certification of Non-Forum Shopping
(Verification).[10] However, the defect that petitioner points to is
the portion of the jurat of the Verification, which states:
Subscribed and sworn to before me this __ day of May 2010 at
_____. Affiant personally and exhibited to me his (1) License ID
Card with Card No. H03-80-002135 issued by LTO on January
16, 2009 (2) Philippine Passport No. XX4793730 issued on
October 20, 2009 valid until October 19, 2014, he, being the
same person herein who executed the foregoing document
thereof.[11]
The date May 21 2009 was stamped on the first blank in __ day
of May 2010. May 21 2010 was written with a pen over the
stamped date May 21 2009 and countersigned by the notary
public. Codilla claims that the date of the Verification was a
mere innocuous mistake or oversight, which did not warrant a
finding that the Verification was defective; much less, fatally
defective. He claims he should not be faulted for any alleged
oversight that may have been committed by the notary public.
Further, the same argument holds true with respect to the
absence of the Mandatory Continuing Legal Education (MCLE)
Compliance Number of the notary public, as well as the
overdue Professional Tax Receipt (PTR) indicated in the
notarial stamp. In any case, the insufficiency of the Verification
was not fatal to the jurisdiction of the HRET.
With respect to the second issue, Codilla argues that the issues
in the Election Protest do not pertain to petitioners qualification,
but to the casting and counting of votes. He claims that his
Election Protest contests the declaration by the Board of
Canvassers that the 101,250 votes should be counted in favor
of petitioner and be credited to him as these should have
instead been declared as stray votes.
Thereafter, public respondent HRET filed its Comment[12] on
the Petition dated 5 May 2011. In its Comment, the HRET
claims that it did not commit grave abuse of discretion when it
took cognizance of Codillas Election Protest despite an alleged
absence/defect in the verification. After all, an unverified
petition differs from one which contains a defective verification,
such as in this case. A defective verification is merely a formal
defect which does not affect the jurisdiction of the tribunal. In
any case, the summary dismissal of an Election Protest, as well
as the allowance of its amendments in matters of form, is
sanctioned by the HRET Rules.
The HRET further argues that it did not commit grave abuse of
discretion when it took cognizance of the Election Protest. The
issue raised in the Election Protest was the validity of
petitioners proclamation, in view of her alleged invalid
substitution. This is a matter that is addressed to the sound
judgment of the HRET.
On 7 June 2011, this Court, among others, required petitioner
to file a reply to Codillas Comment. Petitioner later filed her
Reply dated 15 August 2011, citing an additional ground for
considering the Verification as defective. She claimed that
Codilla, a resident of Ormoc City, could not have possibly
appeared before a notary public in Quezon City; and that he
failed to prove that he was indeed in Quezon City when he
supposedly verified the Election Protest.
The Courts Ruling
The Petition is dismissed for failure to show any grave abuse of
discretion on the part of the HRET.
On the Allegedly Defective Verification
While the existence of the Verification is not disputed, petitioner
notes three alleged defects. First, the Election Protest was filed
on 21 May 2010, but the Verification was allegedly subscribed
and sworn to on 21 May 2009.[13] Second, Codilla, a resident
of Ormoc City, could not have possibly appeared personally
before the notary public in Quezon City.[14] Third, in the
notarial stamp, the date of expiration of the notarial commission
was handwritten while all other details were stamped; the PTR
indicated was issued in 2005; there was no MCLE Compliance
Number as required by Bar Matter No. 1922.[15] Petitioner
claims that due to the lack of a proper verification, the Election
Protest should have been treated as an unsigned pleading and
must be dismissed.
The alleged defects of the Verification are more apparent than
real.
With respect to the date of the notarization, it is clear that the
stamped date 2009 was a mere mechanical error. In fact, the
notary public had superimposed in writing the numbers 10 and
countersigned the alteration. Thus, this error need not be overly
magnified as to constitute a defect in the Verification.
With respect to the second alleged defect, there is a
presumption that official duty has been regularly performed with
respect to the jurat of the Verification, wherein the notary public
attests that it was subscribed and sworn to before him or her,
on the date mentioned thereon.[16] Official duties are
disputably presumed to have been regularly performed. Thus,
contrary to petitioners allegation, there was no need for Codilla
to attach his plane ticket to prove he flew from Ormoc City to
Manila.[17]
Further, to overcome the presumption of regularity, clear and
convincing evidence must be presented.[18] Absent such
evidence, the presumption must be upheld. The burden of proof
to overcome the presumption of due execution of a notarized
document lies on the party contesting the execution.[19] Thus,
petitioners contention that she had reliable information that
[Codilla] was in Ormoc City on the date indicated in the
Verification cannot be considered as clear and convincing
evidence to rebut the presumption that the document was duly
executed and notarized.
With respect to the third alleged defect, the fact that some
portions of the stamp of the notary public were handwritten and
some were stamped does not, in itself, indicate any defect.
Further, Bar Matter No. 1922 merely requires lawyers to
indicate in all pleadings filed before the courts or quasi-judicial
bodies, the number and date of issue of their MCLE Certificate
of Compliance or Certificate of Exemption, whichever is
applicable for the immediately preceding compliance period.
Clearly, the regulation does not apply to notarial acts. With
respect to the PTR number which was dated 5 years prior to
the date of notarization, the deficiency merely entails the
potential administrative liability of the notary public.[20]
In any case, there was no grave abuse of discretion on the part
of the HRET in denying petitioners Motion to Dismiss the
Election Protest and directing Codilla to have his Verification
properly notarized.
It has been consistently held that the verification of a pleading
is only a formal, not a jurisdictional, requirement. The purpose
of requiring a verification is to secure an assurance that the
allegations in the petition are true and correct, not merely
speculative. This requirement is simply a condition affecting the
form of pleadings, and noncompliance therewith does not
necessarily render the pleading fatally defective.[21]
This Court has emphasized that in this species of controversy
involving the determination of the true will of the electorate,
time is indeed of paramount importance. An election
controversy, by its very nature, touches upon the ascertainment
of the peoples choice as gleaned from the medium of the ballot.
For this reason, an election protest should be resolved with
utmost dispatch, precedence and regard for due process.
Obstacles and technicalities that fetter the peoples will should
not stand in the way of a prompt termination of election
contests.[22] Thus, rules on the verification of protests should
be liberally construed.
At this point, it is pertinent to note that such liberalization of the
rules was also extended to petitioner. A perusal of the
Verification and Certification attached to this Petition shows she
attests that the contents of the Petition are true and correct of
[her] own personal knowledge, belief and based on the records
in [her] possession.[23] Section 4, Rule 7 of the Rules of Court
provides that a pleading required to be verified which contains
a verification based on information and belief or knowledge,
information and belief, shall be treated as an unsigned
pleading. A pleading, therefore, wherein the verification is
based merely on the party's knowledge and belief such as in
the instant Petition produces no legal effect, subject to the
discretion of the court to allow the deficiency to be remedied.
[24]
On the Propriety of the Election Protest
Codillas Election Protest contests the counting of 101,250
votes in favor of petitioner. He claims that the denial of the
Certificate of Candidacy of Gomez rendered the latter a non-
candidate, who therefore could not have been validly
substituted, as there was no candidacy to speak of.
It bears stressing that the HRET is the sole judge of all contests
relating to the election, returns, and qualifications of the
members of the House of Representatives. This exclusive
jurisdiction includes the power to determine whether it has the
authority to hear and determine the controversy presented; and
the right to decide whether there exists that state of facts that
confers jurisdiction, as well as all other matters arising from the
case legitimately before it.[25] Accordingly, the HRET has the
power to hear and determine, or inquire into, the question of its
own jurisdiction both as to parties and as to subject matter; and
to decide all questions, whether of law or of fact, the decision of
which is necessary to determine the question of jurisdiction.[26]
Thus, the HRET had the exclusive jurisdiction to determine its
authority and to take cognizance of the Election Protest filed
before it.
Further, no grave abuse of discretion could be attributed to the
HRET on this score. An election protest proposes to oust the
winning candidate from office. It is strictly a contest between
the defeated and the winning candidates, based on the
grounds of electoral frauds and irregularities. Its purpose is to
determine who between them has actually obtained the
majority of the legal votes cast and is entitled to hold the office.
[27] The foregoing considered, the issues raised in Codillas
Election Protest are proper for such a petition, and is within the
jurisdiction of the HRET.
WHEREFORE, the instant Petition for Certiorari is DISMISSED.
The Application for a Temporary Restraining Order and/or Writ
of Preliminary Prohibitory Injunction is likewise DENIED.
Resolution Nos. 10-282 and 10-482 of the House of
Representatives Electoral Tribunal are hereby AFFIRMED.
SO ORDERED.
EN BANC
CONSTANCIO D. PACANAN, JR.,
Petitioner,
- versus -
COMMISSION ON ELECTIONS and FRANCISCO M. LANGI,
SR.,
Respondents. G.R. No. 186224
Promulgated:
August 25, 2009
DECISION
LEONARDO-DE CASTRO, J.:
Before the Court is a petition for certiorari which seeks to set
aside 1) the Order[1] dated March 17, 2008 of the Commission
on Elections (Comelec) First Division and 2) the Resolution[2]
dated January 21, 2009 of the Comelec En Banc dismissing
petitioner Constancio D. Pacanan, Jr.s appeal from the
Decision[3] of the Regional Trial Court (RTC), Branch 27,
Catbalogan, Samar, in Election Case No. 07-1, which declared
private respondent Francisco M. Langi, Sr. as the winning
Mayor of Motiong, Samar.
In the Order of March 17, 2008, the Comelec First Division
dismissed the appeal for failure to pay the correct appeal fee as
prescribed by the Comelec Rules of Procedure within the five-
day reglementary period.
In the assailed Resolution dated January 21, 2009, the
Comelec En Banc denied petitioners motion for
reconsideration, declaring that the Comelec did not acquire
jurisdiction over the appeal because of the non-payment of the
appeal fee on time, and that the Comelec First Division was
correct in dismissing the said appeal.
The antecedent facts are as follows:
Petitioner Constancio D. Pacanan, Jr. and private respondent
Francisco M. Langi, Sr. were candidates for mayor in the
municipality of Motiong, Samar during the May 14, 2007
elections. After the canvassing of votes, the Municipal Board of
Canvassers (MBC) of Motiong, Samar proclaimed petitioner as
the duly elected mayor, having garnered a total of 3,069 votes
against private respondents 3,066 votes.
Thereafter, private respondent filed with the RTC a Protest[4]
dated May 25, 2007 which was docketed as Election Case No.
07-1, contesting the results of the elections in ten (10) of the
forty-nine (49) precincts in Motiong, Samar, and alleging acts of
violence and intimidation and other election irregularities in the
appreciation of the votes by the MBC. Thereafter, petitioner
filed his Verified Answer with Counter-Protest[5] dated June 4,
2007, asserting that private respondents allegations of threat
and intimidation, fraud and other irregularities in the conduct of
elections were mere allegations unsupported by any
documentary evidence. Petitioner also disputed the election
results with respect to seven (7) precincts.
On January 7, 2008, the RTC rendered a decision[6] in Election
Case 07-1, which declared private respondent as the winner in
the May 14, 2007 mayoralty race for Motiong, Samar with a
plurality of six (6) votes, viz:
Wherefore, in view of the foregoing Protestant Francisco M.
Langi, Sr. having obtained the over all total votes of 3,074 and
the Protestees 3,068 total and final votes is declared the winner
in the Mayoralty contest in Motiong, Samar with a plurality of (6)
votes. Therefore the proclamation on May 17, 2007 is hereby
annulled and declared Francisco Langi, Sr. y Maceren as the
duly elected Mayor of Motiong, Samar. The winner is awarded
the amount of P 32,510 as actual damages and no evidence
aliunde for damages for the court to award. xxx
On January 10, 2008, petitioner filed a notice of appeal and
paid P3,000.00 appeal fee per Official Receipt No. 6822663
before the RTC, Branch 27, Catbalogan, Samar. He also
appealed the RTC decision dated January 7, 2008 to the
Comelec which docketed the case as EAC No. A-13-2008. Out
of the P3,000.00 appeal fee required by Section 3, Rule 40 of
the Comelec Rules of Procedure, petitioner only paid the
amount of P1,000.00 (plus P200.00 to cover the legal
research/bailiff fees) to the Cash Division of the Comelec, per
Official Receipt No. 0510287. The said payment was made on
February 14, 2008.[7]
On March 17, 2008, the Comelec First Division issued an
Order[8] dismissing the appeal, viz.:
Pursuant to Sections 3 and 4, Rule 40 of the COMELEC Rules
of Procedure which provide for the payment of appeal fee in the
amount of P3,000.00 within the period to file the notice of
appeal, and Section 9 (a), Rule 22 of the same Rules which
provides that failure to pay the correct appeal fee is a ground
for the dismissal of the appeal, the Commission (First Division)
RESOLVED as it hereby RESOLVES to DISMISS the instant
case for Protestee-Appellants failure to pay the correct appeal
fee as prescribed by the Comelec Rules of Procedure within
the five-(5)-day reglementary period.
SO ORDERED.
On March 28, 2008, petitioner filed a Motion for
Reconsideration[9] which the Comelec En Banc denied in the
Resolution[10] dated January 21, 2009, declaring that the
appeal was not perfected on time for non-payment of the
complete amount of appeal fee and for late payment as well.
The Comelec En Banc held that the Comelec did not acquire
jurisdiction over the appeal because of the non-payment of the
appeal fee on time. Thus, the Comelec First Division correctly
dismissed the appeal.
Hence, the instant petition for certiorari raising the following
grounds:

The respondent COMELEC committed grave abuse of
discretion amounting to lack or excess of jurisdiction in holding
that the correct appeal fee was not paid on time.
The respondent COMELEC committed grave abuse of
discretion amounting to lack or excess of jurisdiction in failing to
consider that assuming that the correct appeal fee was not paid
on time, the alleged non-payment of the correct appeal fee is
not in anyway attributable to herein petitioner.
The respondent COMELEC committed grave abuse of
discretion amounting to lack or excess of jurisdiction in failing to
consider that assuming that the correct appeal fee was not paid
on time, there are highly justifiable and compelling reasons to
resolve the subject case on the merits in the interest of justice
and public interest.
Petitioner further claims that he paid a total of P4,215.00 for his
appeal, as follows:
a. To RTC on January 10, 2008 ------ P3,000.00
10.00
5.00
TOTAL P3,015.00
b. To Comelec on February 14, 2008 -- P1,000.00
50.00
150.00
TOTAL P1,200.00
Petitioner submits that it is incumbent upon the RTC to transmit
to the Comelec the entire P3,000.00 appeal fee that he paid on
January 10, 2008. Petitioner also advances another
interpretation of the Comelec Rules that the RTC is under
obligation to remit to the Comelec the P2,000.00 representing
the excess amount of the P1,000.00 appeal fee.Thus, petitioner
claims that he must be deemed to have complied, in full or at
least substantially, with the Comelec Rules on the payment of
appeal fees.
Petitioner maintains that the alleged non-payment of the correct
appeal fee is not due to his own fault or negligence. He claims
that the laws on appeals in election protest cases are not yet
well-established, thus, he must not be made to suffer for an
oversight made in good faith. The Resolution No. 8486 of July
15, 2008 adopted by the Comelec to clarify the rules on
compliance with the required appeal fees in election cases
should not be applied retroactively to the subject election
protest.
Lastly, petitioner invokes liberality in the application of the
election law. He asserts that the popular will of the people
expressed in the election of public officers should not be
defeated by reason of sheer technicalities. Petitioner argues
that the true will of the people of Motiong in the May 14, 2007
elections should be determined by ordering the Comelec to
give due course to his appeal and to resolve the same on the
merits.
In his Comment, respondent Langi, Sr. states that the petition
was just a mere rehash of the Motion for Reconsideration that
petitioner filed with the Comelec En Banc.Respondent
maintains that for the Comelec to exercise its authority to
administer proceedings, grant leniency, issue orders, and pass
judgment on issues presented, it must first be shown that it has
acquired the requisite jurisdiction over the subject matter
pursuant to the initiatory acts and procedural compliance set as
conditions precedent.
Respondent also argues that the negligence and mistakes of
petitioners counsel bind petitioner. He then reiterates the cases
where this Court held that the non-payment or insufficiency of
payment of filing fees is a valid ground for the dismissal of the
appeal and that the subsequent full payment thereof does not
cure the jurisdictional defect.
We grant the petition.
Section 3, Rule 22 (Appeals from Decisions of Courts in
Election Protest Cases) of the Comelec Rules of Procedure
mandates that the notice of appeal must be filed within five (5)
days after promulgation of the decision, thus:
SEC. 3. Notice of Appeal. Within five (5) days after
promulgation of the decision of the court, the aggrieved party
may file with said court a notice of appeal, and serve a copy
thereof upon the attorney of record of the adverse party.
Moreover, Sections 3 and 4, Rule 40 of the Comelec rules
require the payment of appeal fees in appealed election protest
cases, the amended amount of which was set at P3,200.00 in
Comelec Minute Resolution No. 02-0130,[11] to wit:
SEC. 3. Appeal Fees. The appellant in election cases shall pay
an appeal fee as follows:
(a) For election cases appealed from Regional Trial
Courts.P3,000.00 (per appellant)
(b) For election cases appealed from courts of limited
jurisdiction..P3,000.00 (per appellant)
SEC. 4. Where and When to Pay. The fees prescribed in
Sections 1, 2 and 3 hereof shall be paid to, and deposited with,
the Cash Division of the Commission within a period to file the
notice of appeal.
Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-SC[12] also
provide the procedure for instituting an appeal and the required
appeal fees to be paid for the appeal to be given due course, to
wit:
SEC. 8. Appeal. An aggrieved party may appeal the decision to
the Commission on Elections, within five days after
promulgation, by filing a notice of appeal with the court that
rendered the decision, with copy served on the adverse
counsel or party if not represented by counsel.
SEC. 9. Appeal fee. The appellant in an election contest shall
pay to the court that rendered the decision an appeal fee of
One Thousand Pesos (P1,000.00), simultaneously with the
filing of the notice of appeal.
A reading of the foregoing provisions reveals that two different
tribunals (the trial court that rendered the decision and the
Comelec) require the payment of two different appeal fees for
the perfection of appeals of election cases. This requirement in
the payment of appeal fees had caused much confusion, which
the Comelec addressed through the issuance of Comelec
Resolution No. 8486.[13] Thus, to provide clarity and to erase
any ambiguity in the implementation of the procedural rules on
the payment of appeal fees for the perfection of appeals of
election cases, the resolution provides:
WHEREAS, the Commission on Elections is vested with
appellate jurisdiction over all contests involving elective
municipal officials decided by trial courts of general jurisdiction,
and those involving elective barangay officials, decided by trial
courts of limited jurisdiction;
WHEREAS, Supreme Court Administrative Order No. 07-4-15
(Rules of Procedure in Election Contests Before the Courts
Involving Elective Municipal and Barangay Officials)
promulgated on May 15, 2007 provides in Sections 8 and 9,
Rule 14 thereof the procedure in instituting the appeal and the
required appeal fees to be paid for the appeal to be given due
course, to wit:
Section 8. Appeal. An aggrieved party may appeal the decision
to the Commission on Elections, within five days after
promulgation, by filing a notice of appeal with the court that
rendered the decision, with copy served on the adverse
counsel or party if not represented by counsel.
Section 9. Appeal Fee. The appellant in an election contest
shall pay to the court that rendered the decision an appeal fee
of One Thousand Pesos (P1,000.00), simultaneously with the
filing of the notice of appeal.
WHEREAS, payment of appeal fees in appealed election
protest cases is also required in Section 3, Rule 40 of the
COMELEC Rules of Procedure the amended amount of which
was set at P3,200.00 in COMELEC Minute Resolution No. 02-
0130 made effective on September 18, 2002.
WHEREAS, the requirement of these two appeal fees by two
different jurisdictions had caused confusion in the
implementation by the Commission on Elections of its
procedural rules on payment of appeal fees for the perfection of
appeals of cases brought before it from the Courts of General
and Limited Jurisdictions.
WHEREAS, there is a need to clarify the rules on compliance
with the required appeal fees for the proper and judicious
exercise of the Commissions appellate jurisdiction over election
protest cases.

WHEREFORE, in view of the foregoing, the Commission
hereby RESOLVES to DIRECT as follows:
1. That if the appellant had already paid the amount of
P1,000.00 before the Regional Trial Court, Metropolitan Trial
Court, Municipal Trial Court or lower courts within the five-day
period, pursuant to Section 9, Rule 14 of the Rules of
Procedure in Election Cases Before the Courts Involving
Elective Municipal and Barangay Officials (Supreme Court
Administrative Order No. 07-4-15) and his Appeal was given
due course by the Court, said appellant is required to pay the
Comelec appeal fee of P3,200.00 at the Commissions Cash
Division through the Electoral Contests Adjudication
Department (ECAD) or by postal money order payable to the
Commission on Elections through ECAD, within a period of
fifteen days (15) from the time of the filing of the Notice of
Appeal with the lower court. If no payment is made within the
prescribed period, the appeal shall be dismissed pursuant to
Section 9(a) of Rule 22 of the COMELEC Rules of Procedure,
which provides:
Sec. 9. Grounds for Dismissal of Appeal. The appeal may be
dismissed upon motion of either party or at the instance of the
Commission on any of the following grounds:
(a) Failure of the appellant to pay the correct appeal fee; xxx
2. That if the appellant failed to pay the P1,000.00
appeal fee with the lower court within the five (5) day period as
prescribed by the Supreme Court New Rules of Procedure but
the case was nonetheless elevated to the Commission, the
appeal shall be dismissed outright by the Commission, in
accordance with the aforestated Section 9(a) of Rule 22 of the
Comelec Rules of Procedure.
The Education and Information Department is directed to cause
the publication of this resolution in two (2) newspapers of
general circulation.
This resolution shall take effect on the seventh day following its
publication.
SO ORDERED.
Our ruling in the very recent case of Aguilar v. Comelec,[14]
quoted hereunder, squarely applies to the instant case:
Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-SC provide for
the following procedure in the appeal to the COMELEC of trial
court decisions in election protests involving elective municipal
and barangay officials:
SEC. 8. Appeal. An aggrieved party may appeal the decision to
the Commission on Elections, within five days after
promulgation, by filing a notice of appeal with the court that
rendered the decision, with copy served on the adverse
counsel or party if not represented by counsel.
SEC. 9. Appeal fee. The appellant in an election contest shall
pay to the court that rendered the decision an appeal fee of
One Thousand Pesos (P1,000.00), simultaneously with the
filing of the notice of appeal.
Section 8 was derived from Article IX-C, Section 2(2) of the
Constitution and Rule 40, Section 3, par. 1 and Rule 41,
Section 2(a) of the Rules of Court. Section 9 was taken from
Rule 141, Sections 7(1) and 8(f) of the Rules of Court.
It should be noted from the afore-quoted sections of the Rule
that the appeal fee of P1,000.00 is paid not to the COMELEC
but to the trial court that rendered the decision. Thus, the filing
of the notice of appeal and the payment of the P1,000.00
appeal fee perfect the appeal, consonant with Sections 10 and
11 of the same Rule. Upon the perfection of the appeal, the
records have to be transmitted to the Electoral Contests
Adjudication Department of the COMELEC within 15 days. The
trial court may only exercise its residual jurisdiction to resolve
pending incidents if the records have not yet been transmitted
and before the expiration of the period to appeal.
With the promulgation of A.M. No. 07-4-15-SC, the previous
rule that the appeal is perfected only upon the full payment of
the appeal fee, now pegged at P3,200.00, to the COMELEC
Cash Division within the period to appeal, as stated in the
COMELEC Rules of Procedure, as amended, no longer
applies.
It thus became necessary for the COMELEC to clarify the
procedural rules on the payment of appeal fees. For this
purpose, the COMELEC issued on July 15, 2008, Resolution
No. 8486, which the Court takes judicial notice of. The
resolution pertinently reads:
xxx xxx xxx
The foregoing resolution is consistent with A.M. No. 07-4-15-
SC and the COMELEC Rules of Procedure, as amended. The
appeal to the COMELEC of the trial courts decision in election
contests involving municipal and barangay officials is perfected
upon the filing of the notice of appeal and the payment of the
P1,000.00 appeal fee to the court that rendered the decision
within the five-day reglementary period. The non-payment or
the insufficient payment of the additional appeal fee of
P3,200.00 to the COMELEC Cash Division, in accordance with
Rule 40, Section 3 of the COMELEC Rules of Procedure, as
amended, does not affect the perfection of the appeal and does
not result in outright or ipso facto dismissal of the appeal.
Following, Rule 22, Section 9 (a) of the COMELEC Rules, the
appeal may be dismissed. And pursuant to Rule 40, Section 18
of the same rules, if the fees are not paid, the COMELEC may
refuse to take action thereon until they are paid and may
dismiss the action or the proceeding. In such a situation, the
COMELEC is merely given the discretion to dismiss the appeal
or not.
Accordingly, in the instant case, the COMELEC First Division,
may dismiss petitioners appeal, as it in fact did, for petitioners
failure to pay the P3,200.00 appeal fee.
Be that as it may, the Court finds that the COMELEC First
Division gravely abused its discretion in issuing the order
dismissing petitioners appeal. The Court notes that the notice
of appeal and the P1,000.00 appeal fee were, respectively, filed
and paid with the MTC of Kapatagan, Lanao del Norte on April
21, 2008. On that date, the petitioners appeal was deemed
perfected. COMELEC issued Resolution No. 8486 clarifying the
rule on the payment of appeal fees only on July 15, 2008, or
almost three months after the appeal was perfected. Yet, on
July 31, 2008, or barely two weeks after the issuance of
Resolution No. 8486, the COMELEC First Division dismissed
petitioners appeal for non-payment to the COMELEC Cash
Division of the additional P3,200.00 appeal fee.
Considering that petitioner filed his appeal months before the
clarificatory resolution on appeal fees, petitioners appeal should
not be unjustly prejudiced by COMELEC Resolution No. 8486.
Fairness and prudence dictate that the COMELEC First
Division should have first directed petitioner to pay the
additional appeal fee in accordance with the clarificatory
resolution, and if the latter should refuse to comply, then, and
only then, dismiss the appeal. Instead, the COMELEC First
Division hastily dismissed the appeal on the strength of the
recently promulgated clarificatory resolution which had taken
effect only a few days earlier. This unseemly haste is an
invitation to outrage.
The COMELEC First Division should have been more cautious
in dismissing petitioners appeal on the mere technicality of non-
payment of the additional P3,200.00 appeal fee given the public
interest involved in election cases. This is especially true in this
case where only one vote separates the contending parties.
The Court stresses once more that election law and rules are to
be interpreted and applied in a liberal manner so as to give
effect, not to frustrate, the will of the electorate.
WHEREFORE, premises considered, the petition for certiorari
is GRANTED. The July 31, September 4 and October 6, 2008
Orders and the October 16 2008 Entry of Judgment issued by
the COMELEC First Division in EAC (BRGY) No. 211-2008 are
ANNULLED and SET ASIDE. The case is REMANDED to the
COMELEC First Division for disposition in accordance with this
Decision.
SO ORDERED. (Emphasis supplied)
From the foregoing discussion, it is clear that the appeal from
the trial court decision to the Comelec is perfected upon the
filing of the notice of appeal and the payment of the P1,000.00
appeal fee to the trial court that rendered the decision. With the
promulgation of A.M. No. 07-4-15-SC, the perfection of the
appeal no longer depends solely on the full payment of the
appeal fee to the Comelec.
In the instant case, when petitioner filed his Notice of Appeal
and paid the appeal fee of P3,015.00 to the RTC on January
10, 2008, his appeal was deemed perfected. However,
Comelec Resolution No. 8486 also provides that if the appellant
had already paid the amount of P1,000.00 before the trial court
that rendered the decision, and his appeal was given due
course by the court, said appellant is required to pay the
Comelec appeal fee of P3,200.00 to the Comelecs Cash
Division through the Electoral Contests Adjudication
Department (ECAD) or by postal money order payable to the
Comelec, within a period of fifteen (15) days from the time of
the filing of the Notice of Appeal with the lower court. However,
if no payment is made within the prescribed period, the appeal
shall be dismissed pursuant to Section 9 (a), Rule 22 of the
Comelec Rules of Procedure, which provides:
SEC. 9. Grounds for Dismissal of Appeal. The appeal may be
dismissed upon motion of either party or at the instance of the
Commission on any of the following grounds:
(a) Failure of the appellant to pay the correct appeal
fee; xxx
Thus, when petitioners appeal was perfected on January 10,
2008, within five (5) days from promulgation, his non-payment
or insufficient payment of the appeal fee to the Comelec Cash
Division should not have resulted in the outright dismissal of his
appeal. The Comelec Rules provide in Section 9 (a), Rule 22,
that for failure to pay the correct appeal fee, the appeal may be
dismissed upon motion of either party or at the instance of the
Comelec. Likewise, Section 18, Rule 40[15] thereof also
prescribes that if the fees are not paid, the Comelec may refuse
to take action on the appeal until the said fees are paid and
may dismiss the action or the proceeding.
Here, petitioner paid P1,200.00 to the Comelec on February
14, 2008. Unfortunately, the Comelec First Division dismissed
the appeal on March 17, 2008 due to petitioners failure to pay
the correct appeal fee within the five-day reglementary period.
In denying petitioners motion for reconsideration, the Comelec
En Banc, in the Resolution dated January 21, 2009, declared
that the Comelec did not acquire jurisdiction over the appeal
because of the non-payment of the appeal fee on time.
However, during the pendency of petitioners Motion for
Reconsideration dated March 27, 2008, the Comelec
promulgated Resolution No. 8486 to clarify the implementation
of the Comelec Rules regarding the payment of filing fees.
Thus, applying the mandated liberal construction of election
laws,[16] the Comelec should have initially directed the
petitioner to pay the correct appeal fee with the Comelec Cash
Division, and should not have dismissed outright petitioners
appeal. This would have been more in consonance with the
intent of the said resolution which sought to clarify the rules on
compliance with the required appeal fees.
In Barroso v. Ampig, Jr.,[17] we ruled, thus:
xxx An election contest, unlike an ordinary civil action, is
clothed with a public interest. The purpose of an election
protest is to ascertain whether the candidate proclaimed by the
board of canvassers is the lawful choice of the people. What is
sought is the correction of the canvass of votes, which was the
basis of proclamation of the winning candidate. An election
contest therefore involves not only the adjudication of private
and pecuniary interests of rival candidates but paramount to
their claims is the deep public concern involved and the need of
dispelling the uncertainty over the real choice of the electorate.
And the court has the corresponding duty to ascertain by all
means within its command who is the real candidate elected by
the people.
Moreover, the Comelec Rules of Procedure are subject to a
liberal construction. This liberality is for the purpose of
promoting the effective and efficient implementation of the
objectives of ensuring the holding of free, orderly, honest,
peaceful and credible elections and for achieving just,
expeditious and inexpensive determination and disposition of
every action and proceeding brought before the Comelec. Thus
we have declared:
It has been frequently decided, and it may be stated as a
general rule recognized by all courts, that statutes providing for
election contests are to be liberally construed to the end that
the will of the people in the choice of public officers may not be
defeated by mere technical objections. An election contest,
unlike an ordinary action, is imbued with public interest since it
involves not only the adjudication of the private interests of rival
candidates but also the paramount need of dispelling the
uncertainty which beclouds the real choice of the electorate
with respect to who shall discharge the prerogatives of the
office within their gift. Moreover, it is neither fair nor just to keep
in office for an uncertain period one whose right to it is under
suspicion. It is imperative that his claim be immediately cleared
not only for the benefit of the winner but for the sake of public
interest, which can only be achieved by brushing aside
technicalities of procedure which protract and delay the trial of
an ordinary action.
WHEREFORE, the petition is granted. The Order dated March
17, 2008 of the Comelec First Division and the Resolution
dated January 21, 2009 of the Comelec En Banc in EAC No. A-
13-2008 are ANNULLED and SET ASIDE. Accordingly, let the
case be REMANDED to the Comelec First Division for further
proceedings, in accordance with the rules and with this
disposition. The Regional Trial Court, Branch 27 of Catbalogan,
Samar is DIRECTED to refund to petitioner Constancio D.
Pacanan, Jr., the amount of Two Thousand Pesos (P2,000.00)
as the excess of the appeal fee per Official Receipt No.
6822663 paid on January 10, 2008.
SO ORDERED.
Republic of the Philippines
Supreme Court
Manila
EN BANC
CERIACO BULILIS,
Petitioner,
- versus -
VICTORINO NUEZ, HON. PRESIDING JUDGE, 6THMCTC,
UBAY, BOHOL, HON. PRESIDING JUDGE, RTC, BRANCH
52, TALIBON, BOHOL,
Respondents.
G. R. No. 195953
Promulgated:
August 9, 2011
RESOLUTION
LEONARDO-DE CASTRO, J.:
On October 25, 2010, petitioner Ceriaco Bulilis (Bulilis) was
proclaimed winner of the elections for punong barangay of
Barangay Bulilis, Ubay, Bohol. He won over respondent
Victorino Nuez (Nuez) by a margin of four (4) votes. On
November 2, 2010, Nuez filed an Election Protest[1] (for judicial
recount and annulment of proclamation) with the 6th Municipal
Circuit Trial Court (MCTC) of Ubay, Bohol. It was inexplicably
docketed as Civil Case No. 134-10.
On November 5, 2010, Bulilis, through counsel, filed an
Answer,[2] denying the allegations in the protest and praying for
its dismissal on the ground that the MCTC had no jurisdiction
since the protest failed to implead the Chairman and the
Members of the Board of Election Inspectors who were
purportedly indispensable parties. On the same date, the Clerk
of Court of the MCTC issued a notice of hearing[3] for
November 9, 2010. However, counsel for Bulilis claimed that he
never received said notice nor was he in any way informed that
the November 9, 2010 hearing was a preliminary conference.
He allegedly only learned that there was a hearing set on
November 9, 2010 and it was for preliminary conference when
he received a copy of respondent Nuezs Preliminary
Conference Brief, the day before the scheduled hearing or on
November 8, 2010.
At about 1:45 p.m., on November 9, 2010, counsel for Bulilis
filed his Preliminary Conference Brief with the Clerk of Court
and also furnished Nuezs counsel with a copy.However, when
the case was called at 2:10 p.m., counsel for Nuez moved in
open court to be allowed to present evidence ex parte. Noting
that counsel for Bulilis failed to file his brief and to furnish a
copy of the brief on the other party at least one (1) day prior to
the preliminary conference as required by Section 4, Rule 9 of
A.M. No. 07-4-15-SC, Judge Daniel Jose J. Garces (Judge
Garces) granted Nuezs motion to present evidence ex parte.[4]
Counsel for Bulilis filed a motion for reconsideration on
November 10, 2010, asserting the lack of proper notice to him
of the preliminary conference. In an Order dated November 15,
2010,[5] the MCTC denied the motion for reconsideration on
the grounds that the notice of hearing dated November 5, 2010
was received by petitioner Bulilis himself on said date and
counsel for Bulilis was made aware of the November 9, 2010
preliminary conference when he received the brief for
protestant Nuez the day before.
Bulilis filed a petition for certiorari[6] under Rule 65 of the Rules
of Court with the Regional Trial Court (RTC) of Talibon, Bohol.
However, in an Order[7] dated December 22, 2010, the RTC
dismissed the petition on the ground that it is the Commission
on Elections (COMELEC) that has exclusive appellate
jurisdiction over petitions for certiorari in election cases
involving municipal and barangay officials.
Buliliss motion for reconsideration of the RTC Decision was
denied in an Order[8] dated March 9, 2011. Hence, he filed the
present petition for certiorari (under Rule 65) with prayer for writ
of preliminary injunction with this Court (the Petition), claiming
that he is raising purely questions of law; that the MCTC had no
jurisdiction for protestants failure to implead indispensable
parties; that the MCTC committed grave abuse of discretion in
ordering reception of protestants evidence ex parte; and that
under the rules relied upon by the RTC, the COMELECs
appellate jurisdiction in election cases is allegedly limited to
decisions of election courts and not interlocutory orders.
In a Resolution[9] dated March 29, 2011, this Court required
respondent Nuez to comment. In his Comment dated June 13,
2011, Nuez alleged that Bulilis is guilty of invoking a mistaken
Remedy and using a wrong Venue, but also committing the
same failure of compliance re filing fees.[10]
The Petition must fail.
It appears from the record that the questioned notice of
preliminary conference issued in the instant election protest
may have been defective in that (1) the notice issued by the
MCTC clerk of court was a generic notice of hearing without
any mention that it was for preliminary conference, and (2) it
was served on the party himself despite being represented by
counsel in contravention of Rule 9, Section 2[11] of A.M. No.
07-4-15-SC.[12] For this reason we disagree with the RTCs
finding that impliedly ascribed all fault to petitioner in failing to
timely file his preliminary conference brief. We, nonetheless,
find that the RTC and even this Court have no jurisdiction to
correct any error that may have been committed by MCTC
Judge Garces in his order to allow the protestant to present
evidence ex parte.
Petitioner contends that the petition for certiorari that he filed
with the RTC was not an election case (i.e., not relating to
elections, returns or qualifications of elective officials), but one
imputing grave abuse of discretion on the part of the MCTC
judge in his issuance of an interlocutory order. He further
claims that the COMELECs appellate jurisdiction is only limited
to decided barangay election cases.[13]
There is no merit in petitioners argument that Rule 28, Section
1 of the COMELEC Rules of Procedure limits the COMELECs
jurisdiction over petitions for certiorari in election cases to
issues related to elections, returns and qualifications of elective
municipal and barangay officials. Said provision, taken together
with the succeeding section,[14]undeniably shows that an
aggrieved party may file a petition for certiorari with the
COMELEC whenever a judge hearing an election case has
acted without or in excess of his jurisdiction or with grave
abuse of discretion and there is no appeal, nor any plain,
speedy, and adequate remedy in the ordinary course of law.
Neither can petitioner take refuge in Rule 14, Section 12 of
A.M. No. 07-4-15-SC which provides:
SEC. 12. Jurisdiction of the Commission on Elections in
certiorari cases. - The Commission on Elections has the
authority to issue the extraordinary writs of certiorari, prohibition
and mandamus only in aid of its appellate jurisdiction over
decisions of the courts in election cases involving elective
municipal and barangay officials. (Emphasis supplied.)
Petitioner relies on the above-quoted provision to claim that the
COMELEC only has appellate jurisdiction over decisions of the
courts in election cases and not interlocutory orders. As the
RTC correctly observed, the Court had in a subsequent
issuance, A.M. No. 07-7-12-SC[15] (which amended, among
others, Rule 65 of the Rules of Court), clearly provided that:
In election cases involving an act or an omission of a municipal
or a regional trial court, the petition shall be filed exclusively
with the Commission on Elections, in aid of its appellate
jurisdiction. (Emphases supplied.)
Plainly, from the foregoing, this Court recognizes the
COMELECs appellate jurisdiction over petitions for certiorari
against all acts or omissions of courts in election cases.Indeed,
in the recent case of Galang v. Geronimo,[16] the Court had the
opportunity to rule that a petition for certiorari questioning an
interlocutory order of a trial court in an electoral protest was
within the appellate jurisdiction of the COMELEC. To quote the
relevant portion of that decision:
The question then is, would taking cognizance of a petition for
certiorari questioning an interlocutory order of the regional trial
court in an electoral protest case be considered in aid of the
appellate jurisdiction of the COMELEC? The Court finds in the
affirmative.
Interpreting the phrase "in aid of its appellate jurisdiction," the
Court held in J.M. Tuason & Co., Inc. v. Jaramillo, et al. that if a
case may be appealed to a particular court or judicial tribunal or
body, then said court or judicial tribunal or body has jurisdiction
to issue the extraordinary writ of certiorari, in aid of its appellate
jurisdiction. This was reiterated in De Jesus v. Court of Appeals,
where the Court stated that a court may issue a writ of certiorari
in aid of its appellate jurisdiction if said court has jurisdiction to
review, by appeal or writ of error, the final orders or decisions of
the lower court.
Note that Section 8, Rule 14 of the 2010 Rules of Procedure in
Election Contests Before the Courts Involving Elective
Municipal Officials states that:
Sec. 8. Appeal. An aggrieved party may appeal the decision to
the COMELEC within five (5) days after promulgation, by filing
a notice of appeal with the court that rendered the decision,
with copy served on the adverse counsel or on the adverse
party who is not represented by counsel.
Since it is the COMELEC which has jurisdiction to take
cognizance of an appeal from the decision of the regional trial
court in election contests involving elective municipal officials,
then it is also the COMELEC which has jurisdiction to issue a
writ of certiorari in aid of its appellate jurisdiction. Clearly,
petitioner erred in invoking this Court's power to issue said
extraordinary writ. (Emphasis supplied.)
Although Galang involved a petition for certiorari involving an
interlocutory order of a regional trial court in a municipal
election contest, the rationale for the above ruling applies to an
interlocutory order issued by a municipal trial court in a
barangay election case. Under Rule 14, Section 8 of A.M. No.
07-4-15-SC, decisions of municipal trial courts in election
contests involving barangay officials are appealed to the
COMELEC. Following the Galang doctrine, it is the COMELEC
which has jurisdiction over petitions for certiorari involving acts
of the municipal trial courts in such election contests.
In all, the RTC committed no grave abuse of discretion in
dismissing the petition for lack of jurisdiction. This being the
case, the Court finds it unnecessary to resolve the other issues
raised by petitioner.
WHEREFORE, the present Petition is DISMISSED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 192474 June 26, 2012
ROMEO M. JALOSJOS, JR., Petitioner,
vs.
THE COMMISSION ON ELECTIONS and DAN ERASMO,
SR., Respondents.
x-----------------------x
G.R. No. 192704
DAN ERASMO, SR., Petitioner,
vs.
ROMEO M. JALOSJOS, JR. and HON. COMMISSION ON
ELECTIONS, Respondents.
x-----------------------x
G.R. No. 193566
DAN ERASMO, SR., Petitioner,
vs.
ROMEO M. JALOSJOS, JR., Respondent.
DECISION
ABAD, J.:
These cases reiterate the demarcation line between the
jurisdiction of the Commission on Elections (COMELEC) and
the House of Representatives Electoral Tribunal (HRET).
The Facts and the Case
In May 2007 Romeo M. Jalosjos, Jr., petitioner in G.R. 192474,
ran for Mayor of Tampilisan, Zamboanga del Norte, and won.
While serving as Tampilisan Mayor, he bought a residential
house and lot in Barangay Veterans Village, Ipil, Zamboanga
Sibugay and renovated and furnished the same. In September
2008 he began occupying the house.
After eight months or on May 6, 2009 Jalosjos applied with the
Election Registration Board (ERB) of Ipil, Zamboanga Sibugay,
for the transfer of his voters registration record to Precinct
0051F of Barangay Veterans Village. Dan Erasmo, Sr.,
respondent in G.R. 192474, opposed the application.1 After
due proceedings, the ERB approved Jalosjos application and
denied Erasmos opposition.2
Undeterred, Erasmo filed a petition to exclude Jalosjos from the
list of registered voters of Precinct 0051F before the 1st
Municipal Circuit Trial Court of Ipil-Tungawan-R.T. Lim
(MCTC).3 After hearing, the MCTC rendered judgment on
August 14, 2009, excluding Jalosjos from the list of registered
voters in question. The MCTC found that Jalosjos did not
abandon his domicile in Tampilisan since he continued even
then to serve as its Mayor. Jalosjos appealed4 his case to the
Regional Trial Court (RTC) of Pagadian City5 which affirmed
the MCTC Decision on September 11, 2009.
Jalosjos elevated the matter to the Court of Appeals (CA)
through a petition for certiorari with an application for the
issuance of a writ of preliminary injunction.6 On November 26,
2009 the CA granted his application and enjoined the courts
below from enforcing their decisions, with the result that his
name was reinstated in the Barangay Veterans Villages voters
list pending the resolution of the petition.
On November 28, 2009 Jalosjos filed his Certificate of
Candidacy (COC) for the position of Representative of the
Second District of Zamboanga Sibugay for the May 10, 2010
National Elections. This prompted Erasmo to file a petition to
deny due course to or cancel his COC before the COMELEC,7
claiming that Jalosjos made material misrepresentations in that
COC when he indicated in it that he resided in Ipil, Zamboanga
Sibugay. But the Second Division of the COMELEC issued a
joint resolution, dismissing Erasmos petitions for insufficiency
in form and substance.8
While Erasmos motion for reconsideration was pending before
the COMELEC En Banc, the May 10, 2010 elections took
place, resulting in Jalosjos winning the elections for
Representative of the Second District of Zamboanga Sibugay.
He was proclaimed winner on May 13, 2010.9
Meantime, on June 2, 2010 the CA rendered judgment in the
voters exclusion case before it,10 holding that the lower courts
erred in excluding Jalosjos from the voters list of Barangay
Veterans Village in Ipil since he was qualified under the
Constitution and Republic Act 818911 to vote in that place.
Erasmo filed a petition for review of the CA decision before this
Court in G.R. 193566.
Back to the COMELEC, on June 3, 2010 the En Banc granted
Erasmos motion for reconsideration and declared Jalosjos
ineligible to seek election as Representative of the Second
District of Zamboanga Sibugay. It held that Jalosjos did not
satisfy the residency requirement since, by continuing to hold
the position of Mayor of Tampilisan, Zamboanga Del Norte, he
should be deemed not to have transferred his residence from
that place to Barangay Veterans Village in Ipil, Zamboanga
Sibugay.
Both Jalosjos and Erasmo came up to this Court on certiorari.
In G.R. 192474, Jalosjos challenges the COMELECs finding
that he did not meet the residency requirement and its denial of
his right to due process, citing Roces v. House of
Representatives Electoral Tribunal.12 In G.R. 192704, Erasmo
assails the COMELEC En Bancs failure to annul Jalosjos
proclamation as elected Representative of the Second District
of Zamboanga Sibugay despite his declared ineligibility.
Subsequently, the Court ordered the consolidation of the three
related petitions.13 In its comment,14 the Office of the Solicitor
General (OSG) sought the dismissal of Erasmos petitions and
the grant of that of Jalosjos since all such petitions deal with
the latters qualifications as proclaimed Representative of the
district mentioned. The OSG claims that under Section 17,
Article VI of the 1987 Constitution, jurisdiction over this issue
lies with the HRET.
Threshold Issue Presented
The threshold issue presented is whether or not the Supreme
Court has jurisdiction at this time to pass upon the question of
Jalosjos residency qualification for running for the position of
Representative of the Second District of Zamboanga Sibugay
considering that he has been proclaimed winner in the election
and has assumed the discharge of that office.
The Courts Ruling
While the Constitution vests in the COMELEC the power to
decide all questions affecting elections,15 such power is not
without limitation. It does not extend to contests relating to the
election, returns, and qualifications of members of the House of
Representatives and the Senate. The Constitution vests the
resolution of these contests solely upon the appropriate
Electoral Tribunal of the Senate or the House of
Representatives.16
The Court has already settled the question of when the
jurisdiction of the COMELEC ends and when that of the HRET
begins. The proclamation of a congressional candidate
following the election divests COMELEC of jurisdiction over
disputes relating to the election, returns, and qualifications of
the proclaimed Representative in favor of the HRET.17
Here, when the COMELEC En Banc issued its order dated
June 3, 2010, Jalosjos had already been proclaimed on May
13, 2010 as winner in the election.18 Thus, the COMELEC
acted without jurisdiction when it still passed upon the issue of
his qualification and declared him ineligible for the office of
Representative of the Second District of Zamboanga Sibugay.
It is of course argued, as the COMELEC law department
insisted, that the proclamation of Jalosjos was an exception to
the above-stated rule.19 Since the COMELEC declared him
ineligible to run for that office, necessarily, his proclamation was
void following the ruling in Codilla, Sr. v. De Venecia.20 For
Erasmo, the COMELEC still has jurisdiction to issue its June 3,
2010 order based on Section 6 of Republic Act 6646. Section 6
provides:
Section 6. Effects of Disqualification Case. Any candidate who
has been declared by final judgment to be disqualified shall not
be voted for, and the votes cast for him shall not be counted. If
for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the
Court or Commission shall continue with the trial and hearing of
the action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong.
Here, however, the fact is that on election day of 2010 the
COMELEC En Banc had as yet to resolve Erasmos appeal
from the Second Divisions dismissal of the disqualification
case against Jalosjos. Thus, there then existed no final
judgment deleting Jalosjos name from the list of candidates for
the congressional seat he sought. The last standing official
action in his case before election day was the ruling of the
COMELECs Second Division that allowed his name to stay on
that list.1wphi1 Meantime, the COMELEC En Banc did not
issue any order suspending his proclamation pending its final
resolution of his case. With the fact of his proclamation and
assumption of office, any issue regarding his qualification for
the same, like his alleged lack of the required residence, was
solely for the HRET to consider and decide. 21
Consequently, the Court holds in G.R. 192474 that the
COMELEC En Banc exceeded its jurisdiction in declaring
Jalosjos ineligible for the position of representative for the
Second District of Zamboanga Sibugay, which he won in the
elections, since it had ceased to have jurisdiction over his case.
Necessarily, Erasmos petitions (G.R. 192704 and G.R.
193566) questioning the validity of the registration of Jalosjos
as a voter and the COMELECs failure to annul his
proclamation also fail. The Court cannot usurp the power
vested by the Constitution solely on the HRET.22
WHEREFORE, the Court GRANTS the petition in G.R. 192474,
REVERSES and SETS ASIDE the respondent Commission on
Elections En Bancs order dated June 3, 2010, and
REINSTATES the Commissions Second Division resolution
dated February 23, 2010 in SPA 09-114(DC), entitled Dan
Erasmo, Sr. v. Romeo Jalosjos Jr. Further, the Court
DISMISSES the petitions in G.R. 192704 and G.R. 193566 for
lack of jurisdiction over the issues they raise.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 207264 October 22, 2013
REGINA ONGSIAKO REYES, Petitioner,
vs.
COMMISSION ON ELECTIONS and JOSEPH SOCORRO B.
TAN, Respondents.
RESOLUTION
PEREZ, J.:
This is a Motion for Reconsideration of the En Bane Resolution
of 25 June 2013 which stated that: IN VIEW OF THE
FOREGOING, the instant petition is DISMISSED, finding no
grave abuse of discretion on the part of the Commission on
Elections. The 14 May 2013 Resolution of the COMELEC En
Banc affirming the 27 March 2013 Resolution of the COMELEC
First Division is upheld."
In her Motion for Reconsideration, petitioner summarizes her
submission, thus:
"81. Stated differently, the Petitioner x x x is not asking the
Honorable Court to make a determination as regards her
qualifications, she is merely asking the Honorable Court to
affirm the jurisdiction of the HRET to solely and exclusively
pass upon such qualifications and to set aside the COMELEC
Resolutions for having denied Petitioner her right to due
process and for unconstitutionally adding a qualification not
otherwise required by the constitution."1(as originally
underscored)
The first part of the summary refers to the issue raised in the
petition, which is:
"31. Whether or not Respondent Comelec is without jurisdiction
over Petitioner who is duly proclaimed winner and who has
already taken her oath of office for the position of Member of
the House of Representatives for the lone congressional district
of Marinduque."2
Tied up and neatened the propositions on the COMELEC-or-
HRET jurisdiction go thus: petitioner is a duly proclaimed
winner and having taken her oath of office as member of the
House of Representatives, all questions regarding her
qualifications are outside the jurisdiction of the COMELEC and
are within the HRET exclusive jurisdiction.
The averred proclamation is the critical pointer to the
correctness of petitioner's submission. The crucial question is
whether or not petitioner could be proclaimed on 18 May 2013.
Differently stated, was there basis for the proclamation of
petitioner on 18 May 2013?
Dates and events indicate that there was no basis for the
proclamation of petitioner on 18 May 2013. Without the
proclamation, the petitioner's oath of office is likewise baseless,
and without a precedent oath of office, there can be no valid
and effective assumption of office.
We have clearly stated in our Resolution of 5 June 2013 that:
"More importantly, we cannot disregard a fact basic in this
controversy that before the proclamation of petitioner on 18
May 2013, the COMELEC En Banc had already finally
disposed of the issue of petitioner's lack of Filipino citizenship
and residency via its Resolution dated 14 May 2013. After 14
May 2013, there was, before the COMELEC, no longer any
pending case on petitioner's qualifications to run for the position
of Member of the House of Representatives. x x x As the point
has obviously been missed by the petitioner who continues to
argue on the basis of her due proclamation, the instant motion
gives us the opportunity to highlight the undeniable fact we
here repeat that the proclamation which petitioner secured on
18 May 2013 was WITHOUT ANY BASIS.
1. Four (4) days BEFORE the 18 May 2013 proclamation, or on
14 May 2013, the COMELEC En Banc has already denied for
lack o merit the petitioner's motion to reconsider the decision o
the COMELEC First Division that CANCELLED petitioner's
certificate of candidacy.
2. On 18 May 2013, there was already a standing and
unquestioned cancellation of petitioner's certificate o candidacy
which cancellation is a definite bar to her proclamation. On 18
May 2003, that bar has not been removed, there was not even
any attempt to remove it.
3. The COMELEC Rules indicate the manner by which the
impediment to proclamation may be removed. Rule 18, Section
13 (b) provides:
"(b) In Special Actions and Special Cases a decision or
resolution of the Commission En Bane shall become final and
executory after five (5) days from its promulgation unless
restrained by the Supreme Court."
Within that five (5 days, petitioner had the opportunity to go to
the Supreme Court for a restraining order that will remove the
immediate effect of the En Banc cancellation of her certificate
of candidacy. Within the five (5) days the Supreme Court may
remove the barrier to, and thus allow, the proclamation of
petitioner. That did not happen. Petitioner did not move to have
it happen.
It is error to argue that the five days should pass before the
petitioner is barred from being proclaimed. Petitioner lost in the
COMELEC as of respondent. Her certificate of candidacy has
been ordered cancelled. She could not be proclaimed because
there was a final finding against her by the COMELEC.3 She
needed a restraining order from the Supreme Court to avoid
the final finding. After the five days when the decision adverse
to her became executory, the need for Supreme Court
intervention became even more imperative. She would have to
base her recourse on the position that the COMELEC
committed grave abuse of discretion in cancelling her certificate
of candidacy and that a restraining order, which would allow her
proclamation, will have to be based on irreparable injury and
demonstrated possibility of grave abuse of discretion on the
part of the COMELEC. In this case, before and after the 18
May 2013 proclamation, there was not even an attempt at the
legal remedy, clearly available to her, to permit her
proclamation. What petitioner did was to "take the law into her
hands" and secure a proclamation in complete disregard of the
COMELEC En Bane decision that was final on 14 May 2013
and final and executory five days thereafter.
4. There is a reason why no mention about notice was made in
Section 13(b) of Rule 18 in the provision that the COMELEC En
Bane or decision "SHALL become FINAL AND EXECUTORY
after five days from its promulgation unless restrained by the
Supreme Court." On its own the COMELEC En Bane decision,
unrestrained, moves from promulgation into becoming final and
executory. This is so because in Section 5 of Rule 18 it is
stated:
Section 5. Promulgation. -The promulgation of a decision or
resolutions of the Commission or a division shall be made on a
date previously fixed, of which notice shall be served in
advance upon the parties or their attorneys personally or by
registered mail or by telegram.
5. Apart from the presumed notice of the COMELEC En Bane
decision on the very date of its promulgation on 14 May 2013,
petitioner admitted in her petition before us that she in fact
received a copy of the decision on 16 May 20 13.4 On that
date, she had absolutely no reason why she would disregard
the available legal way to remove the restraint on her
proclamation, and, more than that, to in fact secure a
proclamation two days thereafter. The utter disregard of a final
COMELEC En Bane decision and of the Rule stating that her
proclamation at that point MUST be on permission by the
Supreme Court is even indicative of bad faith on the part of the
petitioner.
6. The indicant is magnified by the fact that petitioner would use
her tainted proclamation as the very reason to support her
argument that she could no longer be reached by the
jurisdiction of the COMELEC; and that it is the HRET that has
exclusive jurisdiction over the issue of her qualifications for
office.
7. The suggestions of bad faith aside, petitioner is in error in the
conclusion at which she directs, as well as in her objective quite
obvious from such conclusion. It is with her procured
proclamation that petitioner nullifies the COMELEC's decision,
by Division and then En Banc and pre-empts any Supreme
Court action on the COMELEC decision. In other words,
petitioner repudiates by her proclamation all administrative and
judicial actions thereon, past and present. And by her
proclamation, she claims as acquired the congressional seat
that she sought to be a candidate for. As already shown, the
reasons that lead to the impermissibility of the objective are
clear. She cannot sit as Member of the House of
Representatives by virtue of a baseless proclamation knowingly
taken, with knowledge of the existing legal impediment.
8. Petitioner, therefore, is in error when she posits that at
present it is the HRET which has exclusive jurisdiction over her
qualifications as a Member of the House of Representatives.
That the HRET is the sole judge of all contests relating to the
election, returns and qualifications of the Members of the
House of Representatives is a written constitutional provision. It
is, however unavailable to petitioner because she is NOT a
Member of the House at present. The COMELEC never
ordered her proclamation as the rightful winner in the election
for such membership.5 Indeed, the action for cancellation of
petitioner's certificate of candidacy, the decision in which is the
indispensable determinant of the right of petitioner to
proclamation, was correctly lodged in the COMELEC, was
completely and fully litigated in the COMELEC and was finally
decided by the COMELEC. On and after 14 May 2013, there
was nothing left for the COMELEC to do to decide the case.
The decision sealed the proceedings in the COMELEC
regarding petitioner's ineligibility as a candidate for
Representative of Marinduque. The decision erected the bar to
petitioner's proclamation. The bar remained when no
restraining order was obtained by petitioner from the Supreme
Court within five days from 14 May 2013.
9. When petitioner finally went to the Supreme Court on 10
June 2013 questioning the COMELEC First Division ruling and
the 14 May 2013 COMELEC En Bane decision, her baseless
proclamation on 18 May 2013 did not by that fact of
promulgation alone become valid and legal. A decision
favorable to her by the Supreme Court regarding the decision
of the COMELEC En Bane on her certificate of candidacy was
indispensably needed, not to legalize her proclamation on 18
May 2013 but to authorize a proclamation with the Supreme
Court decision as basis.
10. The recourse taken on 25 June 2013 in the form of an
original and special civil action for a writ of Certiorari through
Rule 64 of the Rules of Court is circumscribed by set rules and
principles.
a) The special action before the COMELEC which was a
Petition to Cancel Certificate of Candidacy was a SUMMARY
PROCEEDING or one heard summarily. The nature of the
proceedings is best indicated by the COMELEC Rule on
Special Actions, Rule 23, Section 4 of which states that the
Commission may designate any of its officials who are
members of the Philippine Bar to hear the case and to receive
evidence. COMELEC Rule 17 further provides in Section 3 that
when the proceedings are authorized to be summary, in lieu of
oral testimonies, the parties may, after due notice, be required
to submit their position paper together with affidavits, counter-
affidavits and other documentary evidence; x x x and that this
provision shall likewise apply to cases where the hearing and
reception of evidence are delegated by the Commission or the
Division to any of its officials x x x.
b) The special and civil action of Certiorari is defined in the
Rules of Court thus:
When any tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack
or excess of jurisdiction, and there is no appeal, or any plain,
speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings
of such tribunal, board or officer, and granting such incidental
reliefs as law and justice may require.
The accepted definition of grave abuse of discretion is: a
capricious and whimsical exercise of judgment so patent and
gross as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law, as where the power
is exercised in an arbitrary and despotic manner because of
passion or hostility.6
It is the category of the special action below providing the
procedural leeway in the exercise of the COMELEC summary
jurisdiction over the case, in conjunction with the limits of the
Supreme Court's authority over the FINAL COMELEC ruling
that is brought before it, that defines the way petitioner's
submission before the Court should be adjudicated. Thus
further explained, the disposition of 25 June 2013 is here
repeated for affirmation:
Petitioner alleges that the COMELEC gravely abused its
discretion when it took cognizance of "newly-discovered
evidence" without the same having been testified on and
offered and admitted in evidence. She assails the admission of
the blog article of Eli Obligacion as hearsay and the photocopy
of the Certification from the Bureau of Immigration. She
likewise contends that there was a violation of her right to due
process of law because she was not given the opportunity to
question and present controverting evidence.
Her contentions are incorrect.
It must be emphasized that the COMELEC is not bound to
strictly adhere to the technical rules of procedure in the
presentation of evidence. Under Section 2 of Rule I the
COMELEC Rules of Procedure shall be liberally construed in
order x x x to achieve just, expeditious and inexpensive
determination and disposition of every action and proceeding
brought before the Commission. In view of the fact that the
proceedings in a petition to deny due course or to cancel
certificate of candidacy are summary in nature, then the newly
discovered evidence was properly admitted by respondent
COMELEC.
Furthermore, there was no denial of due process in the case at
bar as petitioner was given every opportunity to argue her case
before the COMELEC. From 10 October 2012 when Tan's
petition was filed up to 27 March 2013 when the First Division
rendered its resolution, petitioner had a period of five (5)
months to adduce evidence. Unfortunately, she did not avail
herself of the opportunity given her.
Also, in administrative proceedings, procedural due process
only requires that the party be given the opportunity or right to
be heard. As held in the case of Sahali v. COMELEC:
The petitioners should be reminded that due process does not
necessarily mean or require a hearing, but simply an
opportunity or right to be heard. One may be heard, not solely
by verbal presentation but also, and perhaps many times more
creditably and predictable than oral argument, through
pleadings. In administrative proceedings moreover, technical
rules of procedure and evidence are not strictly applied;
administrative process cannot be fully equated with due
process in its strict judicial sense. Indeed, deprivation of due
process cannot be successfully invoked where a party was
given the chance to be he rd on his motion for reconsideration.
(Emphasis supplied)
As to the ruling that petitioner s ineligible to run for office on the
ground of citizenship, the COMELEC First Division, discoursed
as follows:
"x x x for respondent to reacquire her Filipino citizenship and
become eligible for public office the law requires that she must
have accomplished the following acts: (1) take the oath of
allegiance to the Republic of the Philippines before the Consul-
General of the Philippine Consulate in the USA; and (2) make a
personal and sworn renunciation of her American citizenship
before any public officer authorized to administer an oath.
In the case at bar, there s no showing that respondent complied
with the aforesaid requirements. Early on in the proceeding,
respondent hammered on petitioner's lack of proof regarding
her American citizenship, contending that it is petitioner's
burden to present a case. She, however, specifically denied
that she has become either a permanent resident or naturalized
citizen of the USA.
Due to petitioner's submission of newly-discovered evidence
thru a Manifestation dated February 7, 2013, however,
establishing the fact that respondent is a holder of an American
passport which she continues to use until June 30 2012
petitioner was able to substantiate his allegations. The burden
now shifts to respondent to present substantial evidence to
prove otherwise. This, the respondent utterly failed to do,
leading to the conclusion inevitable that respondent falsely
misrepresented in her COC that she is a natural-born Filipino
citizen. Unless and until she can establish that she had availed
of the privileges of RA 9225 by becoming a dual Filipino-
American citizen, and thereafter, made a valid sworn
renunciation of her American citizenship, she remains to be an
American citizen and is, therefore, ineligible to run for and hold
any elective public office in the Philippines." (Emphasis in the
original.)
Let us look into the events that led to this petition: In moving for
the cancellation of petitioner's COC, respondent submitted
records of the Bureau of Immigration showing that petitioner is
a holder of a US passport, and that her status is that of a
balikbayan. At this point, the burden of proof shifted to
petitioner, imposing upon her the duty to prove that she is a
natural-born Filipino citizen and has not lost the same, or that
she has re-acquired such status in accordance with the
provisions of R.A. No. 9225. Aside from the bare allegation that
she is a natural-born citizen, however, petitioner submitted no
proof to support such contention. Neither did she submit any
proof as to the inapplicability of R.A. No. 9225 to her.
Notably, in her Motion for Reconsideration before the
COMELEC En Bane, petitioner admitted that she is a holder of
a US passport, but she averred that she is only a dual Filipino-
American citizen, thus the requirements of R.A. No. 9225 do
not apply to her. Still, attached to the said motion is an Affidavit
of Renunciation of Foreign Citizenship dated 24 September
2012. Petitioner explains that she attached said Affidavit if only
to show her desire and zeal to serve the people and to comply
with rules, even as a superfluity. We cannot, however,
subscribe to petitioner's explanation. If petitioner executed said
Affidavit if only to comply with the rules, then it is an admission
that R.A. No. 9225 applies to her. Petitioner cannot claim that
she executed it to address the observations by the COMELEC
as the assailed Resolutions were promulgated only in 2013,
while the Affidavit was executed in September 2012.1wphi1
Moreover, in the present petition, petitioner added a footnote to
her oath of office as Provincial Administrator, to this effect: This
does not mean that Petitioner did not, prior to her taking her
oath of office as Provincial Administrator, take her oath of
allegiance for purposes of re-acquisition of natural-born Filipino
status, which she reserves to present in the proper proceeding.
The reference to the taking of oath of office is in order to make
reference to what is already part of the records and evidence in
the present case and to avoid injecting into the records
evidence on matters of fact that was not previously passed
upon by Respondent COMELEC. This statement raises a lot of
questions -Did petitioner execute an oath of allegiance for re-
acquisition of natural-born Filipino status? If she did, why did
she not present it at the earliest opportunity before the
COMELEC? And is this an admission that she has indeed lost
her natural-born Filipino status?
To cover-up her apparent lack of an oath of allegiance as
required by R.A. No. 9225, petitioner contends that, since she
took her oath of allegiance in connection with her appointment
as Provincial Administrator of Marinduque, she is deemed to
have reacquired her status as a natural-born Filipino citizen.
This contention is misplaced. For one, this issue is being
presented for the first time before this Court, as it was never
raised before the COMELEC. For another, said oath of
allegiance cannot be considered compliance with Sec. 3 of R.A.
No. 9225 as certain requirements have to be met as prescribed
by Memorandum Circular No. AFF-04-01, otherwise known as
the Rules Governing Philippine Citizenship under R.A. No.
9225 and Memorandum Circular No. AFF-05-002 (Revised
Rules) and Administrative Order No. 91, Series of 2004 issued
by the Bureau of Immigration. Thus, petitioner s oath of office
as Provincial Administrator cannot be considered as the oath of
allegiance in compliance with R.A. No. 9225.
These circumstances, taken together, show that a doubt was
clearly cast on petitioner s citizenship. Petitioner, however,
failed to clear such doubt.7
11. It may need pointing out that there is no conflict between
the COMELEC and the HRET insofar as the petitioner s being
a Representative of Marinduque is concerned. The COMELEC
covers the matter of petitioner s certificate of candidacy, and its
due course or its cancellation, which are the pivotal conclusions
that determines who can be legally proclaimed. The matter can
go to the Supreme Court but not as a continuation of the
proceedings in the COMELEC, which has in fact ended, but on
an original action before the Court grounded on more than
mere error of judgment but on error of jurisdiction for grave
abuse of discretion. At and after the COMELEC En Bane
decision, there is no longer any certificate cancellation matter
than can go to the HRET. In that sense, the HRET s
constitutional authority opens, over the qualification of its
MEMBER, who becomes so only upon a duly and legally based
proclamation, the first and unavoidable step towards such
membership. The HRET jurisdiction over the qualification of the
Member of the House of Representatives is original and
exclusive, and as such, proceeds de novo unhampered by the
proceedings in the COMELEC which, as just stated has been
terminated. The HRET proceedings is a regular, not summary,
proceeding. It will determine who should be the Member of the
House. It must be made clear though, at the risk of
repetitiveness, that no hiatus occurs in the representation of
Marinduque in the House because there is such a
representative who shall sit as the HRET proceedings are had
till termination. Such representative is the duly proclaimed
winner resulting from the terminated case of cancellation of
certificate of candidacy of petitioner. The petitioner is not,
cannot, be that representative. And this, all in all, is the crux of
the dispute between the parties: who shall sit in the House in
representation of Marinduque, while there is yet no HRET
decision on the qualifications of the Member.
12. As finale, and as explained in the discussion just done, no
unwarranted haste can be attributed, as the dissent does so, to
the resolution of this petition promulgated on 25 June 2013. It
was not done to prevent the exercise by the HRET of its
constitutional duty. Quite the contrary, the speedy resolution of
the petition was done to pave the way for the unimpeded
performance by the HRET of its constitutional role. The
petitioner can very well invoke the authority of the HRET, but
not as a sitting member of the House of Representatives.8
The inhibition of this ponente was moved for. The reason for
the denial of the motion was contained in a letter to the
members of the Court on the understanding that the matter was
internal to the Court. The ponente now seeks the Courts
approval to have the explanation published as it is now
appended to this Resolution.
The motion to withdraw petition filed AFTER the Court has
acted thereon, is noted. It may well be in order to remind
petitioner that jurisdiction, once acquired, is not lost upon the
instance of the parties, but continues until the case is
terminated.9 When petitioner filed her Petition for Certiorari
jurisdiction vested in the Court and, in fact, the Court exercised
such jurisdiction when it acted on the petition. Such jurisdiction
cannot be lost by the unilateral withdrawal of the petition by
petitioner.
More importantly, the Resolution dated 25 June 2013, being a
valid court issuance, undoubtedly has legal consequences.
Petitioner cannot, by the mere expediency of withdrawing the
petition, negative and nullify the Court's Resolution and its legal
effects. At this point, we counsel petitioner against trifling with
court processes. Having sought the jurisdiction of the Supreme
Court, petitioner cannot withdraw her petition to erase the ruling
adverse to her interests. Obviously, she cannot, as she
designed below, subject to her predilections the supremacy of
the law.
WHEREFORE, The Motion for Reconsideration is DENIED.
The dismissal of the petition is affirmed. Entry of Judgment is
ordered.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 204828 December 3, 2013
JAIME C. REGIO, Petitioner,
vs.
COMMISSION ON ELECTIONS and RONNIE C. CO,
Respondents.
DECISION
VELASCO, JR., J.:
The Case
This petition for certiorari filed under Rule 64, in relation to Rule
65, seeks to nullify and set aside the Resolution dated
December 7, 2012 of the Commission on Elections
(COMELEC_ EN Banc in EAC (BRGY-SK) No. 161-2011. The
assailed Resolution reversed and set aside the Resolution of
the COMELEC First Division dated August 23, 2011, which, in
turn, affirmed the May 4, 2011 Decision in Election Case No.
02480-EC of the Metropolitan Trial Court (MeTC), Branch 4 in
Manila.
The Facts
Petitioner Jaime C. Regio (Regio) and private respondent
Ronnie C. Co (Co), among other candidates, ran in the October
25, 2010 barangay elections in Barangay 296, Zone 28, District
III of the City of Manila for the position of punong barangay.
Immediately following the counting and canvassing of the votes
from seven clustered precincts in the adverted barangay,
Regio, who garnered four hundred seventy-eight (478) votes,
as against the three hundred thirty-six (336) votes obtained by
Co, was proclaimed winner for the contested post of punong
barangay. The detailed tally of the votes per precinct, as
reflected in the Statement of Votes, is as follows:1
On November 4, 2010, Co filed an election protest before the
MeTC. He claimed, among other things, that the Board of
Election Tellers (BET) did not follow COMELEC Resolution No.
9030, as it: (1) did not permit his supporters to vote; (2) allowed
"flying voters" to cast votes; and (3) ignored the rules on
appreciation of ballots, resulting in misreading, miscounting,
and misappreciation of ballots. Additionally, he alleged that
Regio committed vote-buying, and engaged in distribution of
sample ballots inside the polling centers during the day of the
elections.2
Of the seven clustered precincts (CPs) initially protested, Co
would later exclude CP Nos. 1304A and 1305A from the
protest. During the preliminary conference, the trial court
allowed the revision of ballots. The revision of ballots occurred
on January 13-14, 2011.3 Per the report of the revision
committee, the number of votes obtained by both candidates in
the contested precincts, as shown below, indicated a
substantial recovery on the part of Co:
1wphi1
During his turn to present evidence, Co limited his offer to the
revision committee report, showing that he garnered the
highest number of votes. Regio, on the other hand, denied that
the elections were tainted with irregularities. He claimed that
the results of the revision are products of post-elections
operations, as the ballots were tampered with, switched, and
altered drastically to change the results of the elections. He
presented as witnesses the following: poll watchers Evangeline
Garcia, Cezar Regio, and Ruben Merilles, who all testified that
there were no instances of electoral fraud, irregularities, and
anomalies during the day of the elections. Presented too were
volunteers Love Agpaoa and Romy Que, who belied allegations
of miscounting, misreading, and misappreciation of the ballots
during the counting, and Dominador Dela Cruz, Chairperson of
the BET for CP Nos. 1302A/1303A, as well as Erlina
Hernandez, Chairperson of the BET for CP No. 1306A, who
both testified that they followed the rules and regulations in
conducting the elections in Barangay 296, and that each ballot
was correctly tabulated.4
The results of the revision notwithstanding, the trial court, in its
Decision of May 4, 2011, dismissed Cos protest and declared
Regio as the duly-elected punong barangay of Barangay 296. It
disposed of the case, as follows:
WHEREFORE, the proclamation of protestee Jaime C. Regio
as the duly elected "Punong Barangay" or "Barangay
Chairman" of Barangay 296, District III, Manila by the Barangay
Board of Canvassers is affirmed by this court. The election
protest filed by the protestant Ronnie C. Co is dismissed for
lack of merit.5
According to the trial court, before it can accord credence to the
results of the revision, it should first be ascertained that the
ballots found in the box during the revision are the same ballots
deposited by the voters. In fine, the court "should first be
convinced that the ballots counted during the revision have not
been tampered with before it can declare the ballots a) as
superior evidence of how the electorate voted, and b) as
sufficient evidence to set aside the election returns. For the
ballots to be considered the best evidence of how the voters
voted, their integrity should be satisfactorily established."6
Invoking Rosal v. COMELEC,7 the trial court ruled that Co
failed to sufficiently show that the integrity of the contested
ballots had been preserved. It then cited the presumption that
election returns are genuine, and that the data and information
supplied by the board of election inspectors are true and
correct.8
The trial court said:
A closer scrutiny of the premise made by the protestant will
reveal that he is trying to prove the misreading, miscounting,
and misappreciation of ballots by introducing as evidence the
marked difference of the results of the revision and of the
results in the election returns. This premise is too
presumptuous. The marked difference cannot be used to prove
the misreading, miscounting, and misappreciation of ballots
because the misreading, miscounting, and misappreciation of
ballots is precisely what the protestant needs to prove to justify
the marked difference in the results. Prudence dictates that the
protestant should first explain where this huge discrepancy is
coming from before using it as evidence. In other words, the
misreading, miscounting, and misappreciation of ballots should
be proven by other independent evidence. Without any
evidence, the allegation of misreading, miscounting, and
misappreciation of ballots remains a mere allegation without
any probative value.9
Traversing the allegations of post-elections tampering, the trial
court rejected Cos allegation that the ballot boxes were
properly locked and sealed. In fact, the trial court said, the
envelope containing the ballots for CP Nos. 1302A/1303A was
glued on both sides, prompting protestees revisor to comment
that the envelope appears to be re-pasted and tampered. In CP
No. 1306A, the report stated that the ballots were not placed in
a sealed envelope.10Corollarily, the trial court stated the
observation that Regio has presented credible witnesses to
prove that there were no irregularities or anomalies during the
casting and counting of votes. Aggrieved, Co filed an appeal
before the COMELEC, arguing that the trial court erred:
1.) In disregarding the result of the physical count of the revised
ballots found in Precinct Nos. 1302A/1303A and 1306A;
2.) In declaring that the protestant appellant was not able to
sufficiently show that the integrity of the contested ballots in
Precinct Nos. 1302A/1303A and 1306A was preserved;
3.) In declaring that protestant-appellant was not able to
overcome the presumption of regularity of the election,
counting, and canvassing proceedings in the protested
precincts of Barangay 296, Manila;
4.) In declaring that the votes obtained by the parties in
Precinct Nos. 1302A/1303A and 1306A as reflected in their
respective Election Returns are [the] true and actual results of
the elections;
5.) In giving weight to the incredulous and conflicting
testimonies of the obviously biased witnesses of the protestee-
appellee;
6.) In refusing to lend credence to the testimony of the expert
witness from the Commission on Elections that the ballots
obtained from Precinct Nos. 1302A/1303A and 1306A are
genuine ballots; and
7.) In refusing to appreciate the contested and revised ballots
for Precinct Nos. 1302A/1303A and 1306A and the appreciation
of the contested ballots found in Precinct No. 1307A/1307B.11
In a Resolution dated August 23, 2011, the COMELEC First
Division12 dismissed the appeal, noting, as the MeTC did, that
Co failed to show that the integrity of the ballots in question
was in fact preserved. Echoing the trial court, the COMELEC
First Division ruled that the absence of any report or record of
tampering of the ballot boxes does not preclude the possibility
of ballot tampering.13
It also affirmed the rejection of Cos reliance on the revision
committee report as proof that no post-election tampering
occurred. The COMELEC First Division observed:
We note that protestant-appellant did not offer any evidence to
prove his claims of misreading, miscounting, and
misappreciation of the ballots; he posits that the variance
between the election results according to the election
documents and the revision of the ballots is in itself enough to
prove his allegations of misreading, miscounting, and
misappreciation of the ballots by the Board of Election Tellers.
Protestant-appellant begs the question instead of laying
support to his claims. x x x x Since it could not divine the will of
the electorate from the ballots, the trial court had no other
recourse other than to rely on the available election documents.
And, We cannot fault the trial court for doing so when there was
no question as to the election documents authenticity and
validity. Protestant-appellant harps that the election documents
are "mere by-products of the electoral fraud committed to
benefit (protestee-appellee) including but not limited to
misreading, miscounting, and misappreciation of ballots by the
Chairpersons of the Board of Election Tellers in order to
increase the votes of the Protestee-Appellee and decrease the
votes that should have been properly credited to Protestant-
Appellant Co."
(emphasis in the original)
As previously mentioned, protestant-appellants assertion is
specious x x x. The records of the case is bereft of any
evidence supporting protestant-appellants claims of electoral
fraud and, thus, We concur with the trial court stating, "(w)ithout
any evidence, the allegation of misreading, miscounting, and
misappreciation of ballots remains a mere allegation without
probative value."14
The COMELEC First Division noted that Co could have, but did
not, presented testimonies of witnesses to substantiate his
claims of electoral fraud, albeit he attached affidavits of various
witnesses in his protest. The affidavits, the COMELEC First
Division said, asserted, in one form or another, the electoral
malfeasance or misfeasance allegedly committed by the BET.
In dismissing the arguments of Co for his failure to present
evidence, the COMELEC commented, "[I]t appears that
protestant-appellant [Co] rested on laurels after seeing the
result of the physical count of the revised ballots and the
conclusion of the Technical Examination. In fine, protestant-
appellant proverbially lost the war for want of a nail."15
The fallo of the COMELEC First Division Resolution reads:
WHEREFORE, premises considered, the Commission (First
Division) RESOLVED, as it hereby RESOLVES, to DENY the
protestants Appeal for LACK OF MERIT. The Decision dated
04 May 2011 by Metropolitan Trial Court Branch 04 City of
Manila is hereby AFFIRMED.16
Co then filed a Motion for Reconsideration. In its assailed
December 7, 2012 Resolution, the COMELEC En
Banc17reconsidered the August 23, 2011 Resolution of the
First Division, and accordingly declared Co as the duly elected
punong barangay. Vital to the En Bancs disposition is its
finding that the ballots subjected to revision were genuine. The
En Banc found:
x x x [W]e find merit in appellants motion for reconsideration.
For, protestant [Co] has sufficiently established that no
untoward incident had attended the preservation of the ballots
after the termination of the proceedings of the Board of Election
Tellers or from the time the custody of the ballot boxes is
transferred from the BET to the City Treasurer and finally to the
trial court. Protestee who cried post-election fraud is duty-
bound to establish that the genuine ballots found inside the
boxes were compromised and tampered at any time during that
period and before the revision. However, no such proof has
been adduced by protestee except the discrepancy between
the figures in the ERs and the physical count on revision. But
then, said discrepancy could have been caused by errors in the
transposition of the numbers from the ballots to the ERs during
the canvassing and not due to tampering. As earlier intimated,
the discrepancy could be attributed to ER manipulation during
the canvassing and not because of the tampering of the ballots
which were already found by an expert and independent body
to be genuine and authentic.18
The fallo of the COMELEC En Bancs Resolution reads:
WHEREFORE, premises considered, the Commission
RESOLVED as it hereby RESOLVES to reconsider its
Resolution dated August 23, 2011 and proclaim protestant-
appellant as the duly elected Punong Barangay of Barangay
296, District III, Manila.19
Thus, the present recourse, on the argument that the
COMELEC En Banc committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it arbitrarily set
aside the Decision of the MeTC and the Resolution of the
COMELEC First Division, in the choice between the revision
results in the protested precincts and the official vote count
recorded in the election returns. Petitioner further argues that
the COMELEC gravely abused its discretion when it demanded
from protestee direct proof of actual tampering of ballots to
justify consideration of the use of the election returns in
determining the winning candidate in the elections. In fine,
petitioner questions the ruling of the COMELEC giving
precedence to the results of the revision over the official
canvassing results.
The Issues
I. WHETHER THE RESPONDENT COMMISSION
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN RULING THAT
PRIVATE RESPONDENT CO HAD SUCCESSFULLY
DISCHARGED THE BURDEN OF PROVING THE INTEGRITY
OF THE BALLOTS SUBJECTED TO REVISION. II. WHETHER
THE RESPONDENT COMMISSION COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN REVERSING THE RULING
OF THE COMELEC FIRST DIVISION, TO THE EFFECT THAT
PETITIONER REGIO IS THE DULY-ELECTED PUNONG
BARANGAY.
The Courts Ruling
At the outset, it must be noted that the protest case is
dismissible for being moot and academic. A case becomes
moot when there is no more actual controversy between the
parties or no useful purpose can be served in passing upon the
merits. Generally, courts will not determine a moot question in a
case in which no practical relief can be granted.20
In Malaluan v. COMELEC,21 this Court settled the matter on
when an election protest case becomes moot and academic:
When the appeal from a decision in an election case has
already become moot, the case being an election protest
involving the office of mayor the term of which had expired, the
appeal is dismissible on that ground, unless the rendering of a
decision on the merits would be of practical value. (emphasis
added)
In the case now before the Court, the position involved is that
of a punong barangay. The governing law, therefore, is
Republic Act No. (RA) 9164, as amended by RA 9340. Sec. 4
of the law states:
Sec. 4. Assumption of Office. - The term of office of the
barangay and sangguniang kabataan officials elected under
this Act shall commence on August 15, 2002, next following
their elections. The term of office of the barangay and
sangguniang kabataan officials elected in the October 2007
election and subsequent elections shall commence at noon of
November 30 next following their election. (emphasis added)
The court takes judicial notice of the holding of barangay
elections last October 28, 2013. Following the elections, the
new set of barangay officials already assumed office as of noon
of November 30, 2013. It goes without saying, then, that the
term of office of those who were elected during the October
2010 barangay elections also expired by noon on November
30, 2013. In fine, with the election of a new punong barangay
during the October 28, 2013 elections, the issue of who the
rightful winner of the 2010 barangay elections has already been
rendered moot and academic. Notwithstanding the mootness of
the case, We find the need to decide the petition on its merits,
in view of the finding of the COMELEC En Banc that protestant
Co should have been declared the winner for the post of
punong barangay for the term 2010-2013. We find that the
grave abuse of discretion committed by the COMELEC En
Banc, specifically in ignoring the rules on evidence, merits
consideration. Still in line with the Courts decision in
Malaluan22 to the effect that the Court can decide on the merits
a moot protest if there is practical value in so doing, We find
that the nullification of the COMELEC En Bancs Resolution is
in order, due to its gross contravention of established rules on
evidence in election protest cases. We shall discuss the issues
jointly, related as they are to the finding of the COMELEC En
Banc giving primacy to the results of the revision proceedings
over the results of the canvassing as reflected in the election
returns.
The doctrine in Rosal v. COMELEC23 and considering the
results of the revision vis--vis the results reflected in the
official canvassing In Rosal, this Court summarized the
standards to be observed in an election contest predicated on
the theory that the election returns do not accurately reflect the
will of the voters due to alleged irregularities in the appreciation
and counting of ballots. These guiding standards are:
(1) The ballots cannot be used to overturn the official count as
reflected in the election returns unless it is first shown
affirmatively that the ballots have been preserved with a care
which precludes the opportunity of tampering and suspicion of
change, abstraction or substitution;
(2) The burden of proving that the integrity of the ballots has
been preserved in such a manner is on the protestant;
(3) Where a mode of preserving the ballots is enjoined by law,
proof must be made of such substantial compliance with the
requirements of that mode as would provide assurance that the
ballots have been kept inviolate notwithstanding slight
deviations from the precise mode of achieving that end;
(4) It is only when the protestant has shown substantial
compliance with the provisions of law on the preservation of
ballots that the burden of proving actual tampering or likelihood
thereof shifts to the protestee; and
(5) Only if it appears to the satisfaction of the court of
COMELEC that the integrity of the ballots has been preserved
should it adopt the result as shown by the recount and not as
reflected in the election returns. In the same case, the Court
referred to various provisions in the Omnibus Election Code
providing for the safe-keeping and preservation of the ballots,
more specifically Secs. 160, 217, 219, and 220 of the Code.
Rosal was promulgated precisely to honor the presumption of
regularity in the performance of official functions. Following
Rosal, it is presumed that the BET and Board of Canvassers
had faithfully performed the solemn duty reposed unto them
during the day of the elections. Thus, primacy is given to the
official results of the canvassing, even in cases where there is a
discrepancy between such results and the results of the
revision proceedings. It is only when the protestant has
successfully discharged the burden of proving that the re-
counted ballots are the very same ones counted during the
revision proceedings, will the court or the Commission, as the
case may be, even consider the revision results. Even then, the
results of the revision will not automatically be given more
weight over the official canvassing results or the election
returns. What happens in the event of discrepancy between the
revision results and the election returns is that the burden of
proof shifts to the protestee to provide evidence of actual
tampering of the ballots, or at least a likelihood of tampering. It
is only when the court or the COMELEC is fully satisfied that
the ballots have been well preserved, and that there had been
no tampering of the ballots, that it will accord credibility to the
results of the revision. In Varias v. COMELEC, the Court said:
The Rosal ruling, to be sure, does not involve issues merely
related to the appreciation or calibration of evidence; its critical
ruling is on the propriety of relying on the revision of ballot
results instead of the election returns in the proclamation of a
winning candidate. In deciding this issue, what it notably
established was a critical guide in arriving at its conclusion
the need to determine whether the court or the COMELEC
looked at the correct considerations in making its ruling.24 This
Court had long stated that "[u]pholding the sovereignty of the
people is what democracy is all about. When the sovereignty of
the people expressed thru the ballot is at stake, it is not enough
for this Court to make a statement but it should do everything to
have that sovereignty obeyed by all. Well done is always better
than well said."25
This is really what the Rosal doctrine is all about. The Rosal
doctrine ensures that in election protest cases, the supreme
mandate of the people is ultimately determined. In laying down
the rules in appreciating the conflicting results of the
canvassing and the results of a revision later made, the Court
has no other intention but to determine the will of the electorate.
The Rosal doctrine is also supplemented by A.M. No. 07-4-15-
SC,26 establishing the following disputable presumptions:
SEC. 6. Disputable presumptions. - The following presumptions
are considered as facts, unless contradicted and overcome by
other evidence: (a) On the election procedure: (1) The election
of candidates was held on the date and time set and in the
polling place determined by the Commission on Elections; (2)
The Boards of Election Inspectors were duly constituted and
organized; (3) Political parties and candidates were duly
represented by pollwatchers; (4) Pollwatchers were able to
perform their functions; and (5) The Minutes of Voting and
Counting contains all the incidents that transpired before the
Board of Election Inspectors. (b) On election paraphernalia: (1)
Ballots and election returns that bear the security markings and
features prescribed by the Commission on Elections are
genuine; (2) The data and information supplied by the members
of the Boards of Election Inspectors in the accountable forms
are true and correct; and (3) The allocation, packing and
distribution of election documents or paraphernalia were
properly and timely done. (c) On appreciation of ballots: (1) A
ballot with appropriate security markings is valid; (2) The ballot
reflects the intent of the voter; (3) The ballot is properly
accomplished; (4) A voter personally prepared one ballot,
except in the case of assistors; and (5) The exercise of ones
right to vote was voluntary and free.
Private respondent Co has not proved that the integrity of the
ballots has been preserved Applying Rosal, viewed in
conjunction with A.M. No. 07-4-15-SC, this Court rules that the
COMELEC En Banc committed grave abuse of discretion in
ruling that private respondent had successfully discharged the
burden of proving that the ballots counted during the revision
proceedings are the same ballots cast and counted during the
day of the elections. That is the essence of the second
paragraph in the Rosal doctrine. It is well to note that the
respondent Co did not present any testimonial evidence to
prove that the election paraphernalia inside the protested ballot
boxes had been preserved. He mainly relied on the report of
the revision committee. There was no independent, direct or
indirect, evidence to prove the preservation of the ballots and
other election paraphernalia. This leads Us to no other
conclusion but that respondent Co failed to discharge his
burden under the Rosal doctrine. With no independent
evidence to speak of, respondent Co cannot simply rely on the
report of the revision committee, and from there conclude that
the report itself is proof of the preservation of the ballots. What
he needs to provide is evidence independent of the revision
proceedings. Without any such evidence, the Court or the
COMELEC, as the case may be, will be constrained to honor
the presumption established in A.M. No. 07-4-15-SC, that the
data and information supplied by the members of the Boards of
Election Inspectors in the accountable forms are true and
correct.
Respondent Co admits having, under the Rosal doctrine, the
burden of proving the preservation of the ballots, and corollarily,
that their integrity have not been compromised before the
revision proceedings. He, however, argues that he had
successfully discharged that burden. And how? First, he
pointed out that from the moment the various BETs placed the
counted official ballots inside the ballot boxes until they were
transported for canvassing, and until they were transmitted to
the Election Officer/City Treasurer of Manila for storage and
custody, no irregularities or ballot-box snatching were reported;
neither was there any news or record of ballot box tampering in
the protested precincts. Second, no untoward incident or
irregularity which may taint or affect the integrity of the ballot
boxes was ever reported when they were transported to the
storage area of the trial court. Third, the storage place of the
ballot boxes was at all times tightly secured, properly protected,
and well safeguarded. Fourth, all the protested ballot boxes
were properly locked and sealed. Fifth, the petitioner never
questioned or raised any issue on the preservation of the
integrity of the protested ballot boxes. And sixth, the Technical
Examination Report signed by the COMELEC representative
confirmed the genuineness, authenticity, and integrity of all the
ballots found during the revision.27
We hold, however, that the foregoing statements do not, by
themselves, constitute sufficient evidence that the ballots have
been preserved. Respondent Co cannot simply rely on the
alleged absence of evidence of reports of untoward incidents,
and from there immediately conclude that the ballots have been
preserved. What he should have presented are concrete pieces
of evidence, independent of the revision proceedings that will
tend to show that the ballots counted during the revision
proceedings were the very same ones counted by the BETs
during the elections, and the very same ones cast by the
public. He cannot evade his duty by simply relying on the
absence of reports of untoward incidents that happened to the
ballot boxes. At best, this reliance on the condition of the ballot
boxes themselves is speculative; at worst, it is self-serving.
Without presenting to the court any evidence outside of the
proceedings, respondent Co as protestant may simply claim
that the ballot boxes themselves are the proof that they were
properly preserved. This goes contrary to the doctrine in Rosal.
The respective custodians of the ballot boxes, from the time
they were used in the elections until they were delivered to the
court, were not, to stress, presented in court. They could have
testified as to the security afforded the ballot boxes while in
their custody. Moreover, no witness at all was presented by
respondent Co during the proceedings in the trial court. The
Court reminds respondent Co that the trial courts consideration
of the case is confined to whatever evidence is presented
before it. This is amply stated in Rule 13, Sec. 2 of A.M. No. 07-
4-15-SC:
Sec. 2. Offer of evidence. The court shall consider no
evidence that has not been formally offered.1wphi1 Offer of
evidence shall be done orally on the last day of hearing allowed
for each party after the presentation of the last witness. The
opposing party shall be required to immediately interpose
objections thereto. The court shall rule on the offer of evidence
in open court. However, the court may, at its discretion, allow
the party to make an offer of evidence in writing, which shall be
submitted within three days. If the court rejects any evidence
offered, the party may make a tender of excluded evidence.
Unfortunately for respondent Co, the witnesses whose
affidavits he attached to his Protest were never presented
during trial. While he again raised the tenor of these affidavits in
his Comment filed before Us, those cannot be considered
anymore due to his failure to present them before the trial
court. Respondent cannot simplistically insist on the
consideration of said affidavits, the trial court not having been
given the opportunity to observe their testimonies, and
petitioner not having been accorded the opportunity to cross-
examine them. The fact that respondent attached the affidavits
in his Protest does not mean that the trial court is bound to
consider them, precisely because they have not been formally
offered before the court. The attachments to the Protest will not
be considered unless formally offered. The Court notes that
respondent Co has offered no explanation whatsoever why he
failed to present his witnesses. Nevertheless, he would have
this Court consider as evidence their purported testimonies.
This would be incongruously unfair to petitioner, who
endeavored to prove his case by presenting evidence before
the trial court. Neither can respondent Co disclaim
responsibility on the argument that the petitioner never raised
as an issue the preservation of the ballot boxes. Inherent in all
election protest cases is the duty of the protestant to provide
evidence of such preservation. The failure of the protestee to
raise that as an issue will not ipso facto mean that protestant
need not present evidence to that effect. Moreover, the
Technical Examination Report, is not, without more, evidence of
preservation. The Report merely states that the ballots are
genuine. What the protestant should endeavor to prove,
however, in presenting evidence of preservation, is not that the
ballots themselves are genuine or official, but that they are the
very same ones cast by the electorate. The Report cannot
possibly determine that. While it may be that the ballots
themselves are official ballots, there is still a dearth of evidence
on whether or not they were the same official ballots cast by the
public during the elections. The Report, therefore, cannot be
considered as evidence of the preservation, as required by
Rosal. The fact of preservation is not, as respondent Co claims,
"incontrovertible." In fact, there is total absence of evidence to
that effect. The incontrovertible fact is that private respondent,
during the proceedings before the trial court, did not present
any independent evidence to prove his claim. Without any
independent evidence, the trial court, the COMELEC, as well
as this Court, is constrained to affirm as a fact the disputable
presumption that the ballots were properly counted during the
counting and canvassing of votes. In sum, We find that the
COMELEC gravely abused its discretion in ruling that private
respondent had discharged the burden of proving the integrity
of the ballots. We rule, on the contrary, that there is utter lack of
evidence to that effect.
Petitioner need not prove actual tampering of the ballots
Corollarily, the COMELEC En Banc had ruled that petitioner, as
protestee, failed to adduce evidence that the ballots found
inside the ballot boxes were compromised and tampered. This
strikes us as baseless and a clear departure from the teachings
of Rosal.
The duty of the protestee in an election contest to provide
evidence of actual tampering or any likelihood arises only when
the protestant has first successfully discharge the burden or
providing that the ballots have been secured to prevent
tampering or susceptibility of charge, abstraction or
substitution. Such need to present proof of tampering did not
arise since protestant himself failed to provide evidence of the
integrity of the ballots.
A candidate for a public elective position ought to familiarize
himself with election laws, pertinent jurisprudence, and
COMELEC resolutions, rules and regulations. Alternatively, he
should have an experienced and knowledgeable election
lawyer to guide him on the different aspects of election. Sans
comment legal advice and representation a victory in the
elections may turn out to be a crushing defeat for the candidate
who actually got the nod of the electorate. Unfortunately for
respondent Co, he committed several miscues that eventually
led to his debacle in the instant election protest.
WHEREFORE, premises considered, this Petition for Certiorari
is GRANTED. The Resolution dated December 7, 2012 of the
COMELEC En Banc in EAC (BRGY-SK) No. 161-2011 is
hereby NULLIFIED and SET ASIDE. The Resolution of the
COMELEC First Division dated August 23, 2011, affirming the
Decision in Election Case No. 02480-EC of the MeTC. Branch
4 in Manila is hereby REINSTATED.
SO ORDERED.
EN BANC
SALVADOR DIVINAGRACIA, JR.,
Petitioner,
- versus -
COMMISSION ON ELECTIONS and
ALEX A. CENTENA,
Respondents.
Promulgated:
July 27, 2009
DECISION
CARPIO MORALES, J.:
Salvador Divinagracia, Jr. (petitioner) and Alex Centena (private
respondent) vied for the vice-mayoralty race in Calinog, Iloilo
during the May 14, 2007 Elections wherein petitioner garnered
8,141 votes or 13 votes more than the 8,128 votes received by
respondent.
After the proclamation of petitioner as the duly elected vice-
mayor on May 16, 2007, private respondent filed with the
Regional Trial Court (RTC) of Iloilo City an election protest,
docketed as Election Case No. 07-2007, claiming that
irregularities attended the appreciation of marked ballots in
seven precints.[1]
By Decision of December 5, 2007, Branch 24 of the RTC
dismissed private respondents protest. It ruled that private
respondent failed to overcome the disputable presumption of
regularity in the conduct of elections[2] since no challenge of
votes or objection to the appreciation of ballots was raised
before the Board of Elections Inspectors or the Municipal Board
of Canvassers.
Private respondent and petitioner filed their respective notices
of appeal before the trial court, upon payment of the P1,000
appeal fee under Section 9, Rule 14 of the Rules of Procedure
in Election Contests before the Courts involving Elective
Municipal and Barangay Officials (A.M. No. 07-4-15-SC) which
took effect on May 15, 2007.
The Comelec, by Order of March 12, 2008, consolidated the
appeals of the parties and directed them to file their respective
briefs.
Meanwhile, the duly elected mayor of Calinog, Teodoro Lao,
died on March 18, 2008. On even date, petitioner assumed
office as mayor.
On July 17, 2008, the Comelec Second Division issued its first
assailed resolution declaring private respondent as the duly
elected vice mayor. Thus it disposed:
WHEREFORE, this Commission GRANTS the Appeal in EAC
No. A-10-2008, and hereby DECLARES protestant-appellant
Alex Centena as the duly elected Vice-Mayor of the
Municipality of Calinog, Iloilo, with a total of 8,130 votes against
protestee-appellee Salvador Divinagracia, Jr.s total of 8,122
votes, or a winning margin of eight (8) votes.
The Decision of the Regional Trial Court of Iloilo City, Branch
24, dated 5 December 2007, is hereby REVERSED and SET
ASIDE.
The Appeal in EAC No. A-11-2008 is hereby DENIED for lack of
merit.
SO ORDERED.[3]
In reversing the trial courts Decision, the Comelec Second
Division found the same to be fatally defective in form for non-
observance of the prescribed rules[4] as it failed to indicate the
specific markings in the contested ballots and merely discussed
in a general manner the reasons why those ballots should not
be declared as marked.[5] The Comelec re-appreciated those
ballots and ascertained that respondent was the true winner in
the elections for the vice-mayoralty post.
Petitioner filed a Verified Motion for Reconsideration, alleging,
inter alia, that both parties failed to pay the appeal fee/s in the
amount of P3,200 under Section 3, Rule 40 of the Comelec
Rules of Procedure,[6] and following Section 9, Rule 22 of the
same Rules, an appeal may be dismissed motu proprio or upon
motion on the ground of failure of the appellant to pay the
correct appeal fee.
On January 26, 2009, the Comelec En Banc issued its second
assailed Resolution affirming[7] the pronouncements of the
Second Division. It held that petitioner was barred under the
doctrine of estoppel by laches when he failed to raise the
question of jurisdiction when he filed his Appellants and
Appellees Briefs.
Hence, the present petition for certiorari and prohibition which
asserts that payment of the appeal fee is a mandatory and
jurisdictional requirement and that the question of jurisdiction
may be raised at any stage of the proceedings. It cites earlier
rulings of the Comelec dismissing analogous cases involving
the same issue of non-payment of appeal fee which, so he
contends, contradict the assailed Resolutions.
In support of the issue of whether the Comelec gravely abused
its discretion amounting to lack or excess of jurisdiction in
issuing the assailed Resolutions, petitioner submits the
following arguments:
7.1. THE PUBLIC RESPONDENT COMELEC DID NOT
ACQUIRE JURISDICTION OVER THE APPEAL DOCKETED
AS EAC NO. A-10-2008 FOR FAILURE OF THE APPELLANT
TO PAY THE FILING FEE/APPEAL FEE.
7.2. PAYMENT OF FILING FEE/APPEAL FEE IS MANDATORY
AND JURISDICTIONAL, HENCE, CAN BE RAISED AT ANY
STAGE OF THE PROCEEDINGS PENDING WITH THE SAME
COURT/COMELEC.
7.3. THE FLIP-FLOPPING RULINGS OF THE PUBLIC
RESPONDENT COMELEC SECOND DIVISION IS IN
DEROGATION OF THE RULES AND THE PROPER
ADMINISTRATION OF JUSTICE.
7.4. IN ASSAILING THE RULING TO AFFIRM THE SECOND
DIVISION RESOLUTION, THE PETITIONER IS NOT BARRED
BY ESTOPPEL BECAUSE HIS PARTICIPATION IN THE
PROCEEDINGS WAS DIRECTED BY THE PUBLIC
RESPONDENT COMELEC.
7.5. THERE APPEARS TO BE AN INCONSISTENCY IN THE
APPLICATION OF THE RULES BETWEEN THE FIRST AND
SECOND DIVISION OF THE PUBLIC RESPONDENT
COMELEC.[8]
Private respondent filed his Comment of March 17, 2009, while
petitioner submitted a Reply of May 11, 2009.
Records show that private respondent took his oath of office as
vice-mayor and, forthwith successively, as mayor on March 6,
2009,[9] pursuant to the Comelec Order of March 3, 2009
directing the issuance of a writ of execution.[10]
The petition lacks merit.
The jurisprudence on payment of filing fees in election cases
metamorphosed in the 1997 case of Loyola v. Comelec.[11] In
Loyola, the Court did not dismiss the election protest for
inadequate payment of filing fees arising from the incorrect
assessment by the clerk of court, after finding substantial
compliance with the filing fee requirement in election cases.
The Court noted the clerks ignorance or confusion as to which
between Section 5(a)(11),[12] Rule 141 of the Rules of Court
and Section 9, Rule 35 of the Comelec Rules of Procedure
would apply in assessing the filing fee, considering that the
particular election protest fell within the exclusive original
jurisdiction of the Regional Trial Court.
After clarifying the matter, the Court in Loyola warned that the
cases cited therein would no longer provide any excuse for
such shortcoming and would now bar any claim of good faith,
excusable negligence or mistake in any failure to pay the full
amount of filing fees in election cases which may be filed after
the promulgation of the decision in said case.
Shortly thereafter, in the similar case of Miranda v. Castillo[13]
which involved two election protests filed on May 24, 1995, the
Court did not yet heed the Loyola warning and instead held that
an incomplete payment of filing fee is correctible by the
payment of the deficiency. The Court, nonetheless, reiterated
the caveat in Loyola that it would no longer tolerate any mistake
in the payment of the full amount of filing fees for election cases
filed after the promulgation of the Loyola decision on March 25,
1997.
The force of the Loyola doctrine was strongly felt in the 2000
case of Soller v. Comelec,[14] where the Court ordered the
dismissal of the therein election protest for, inter alia,
incomplete payment of filing fee, after finding a P268 deficiency
in the fees paid, similar to what occurred in Loyola and
Miranda. The Court once again clarified that the then P300
filing fee prescribed by the Comelec under Section 9, Rule 35
of the Comelec Rules of Procedure was the correct filing fee
that must be paid.
The ripples of the caveat in Loyola continued in Villota v.
Commission on Elections[15] and Zamoras v. Commission on
Elections,[16] both of which involved, this time, the matter of full
payment of the appeal fee in election contests within the five-
day reglementary period.
The petitioner in Villota timely filed a notice of appeal and
simultaneously paid to the trial courts cashier the appeal fees
totaling P170. Four days beyond the reglementary period, the
therein petitioner realized his mistake and again paid to the
Cash Division of the Comelec the appeal fees in the sum of
P520, pursuant to Sections 3 and 4, Rule 40 of the Comelec
Rules of Procedure, which Sections fix the amount of the fees
and the place of payment thereof. Maintaining that errors in the
matter of non-payment or incomplete payment of filing fees in
election cases are no longer excusable, the Court sustained the
Comelecs dismissal of the appeal.
The Court was more emphatic in Zamoras in reiterating the
Loyola doctrine. In that case, the petitioner failed to fully pay
the appeal fees under Comelec Resolution No. 02-0130
(September 18, 2002) which amended Section 3, Rule 40 of
the Comelec Rules of Procedure by increasing the fees to
P3,200. There the Court ruled:
x x x A case is not deemed duly registered and docketed until
full payment of the filing fee. Otherwise stated, the date of the
payment of the filing fee is deemed the actual date of the filing
of the notice of appeal. x x x
xxxx
x x x The payment of the filing fee is a jurisdictional requirement
and non-compliance is a valid basis for the dismissal of the
case. The subsequent full payment of the filing fee after the
lapse of the reglementary period does not cure the jurisdictional
defect. x x x[17] (Italics in the original, underscoring supplied)
Such has been the jurisprudential landscape governing the
matter of payment of filing fees and appeal fees in election
cases.
On May 15, 2007, the Court, by A.M. No. 07-4-15-SC,
introduced the Rules of Procedure in Election Contests before
the Courts involving Elective Municipal and Barangay Officials,
which superseded Rules 35 and 36 of the Comelec Rules of
Procedure governing elections protests and quo warranto
cases before the trial courts.[18] Not only was the amount of
the filing fee increased from P300 to P3,000 for each interest;
[19] the amount of filing fee was determined by the Court, not
by the Comelec, which was, to recall, the cause of confusion in
Loyola, Miranda and Soller.
Another major change introduced by A.M. No. 07-4-15-SC is
the imposition of an appeal fee under Section 9 of Rule 14
thereof, separate and distinct from, but payable within the same
period as, the appeal fee imposed by the Comelec under
Sections 3 and 4, Rule 40 of the Comelec Rules of Procedure,
as amended by Comelec Resolution No. 02-0130.Contrary to
respondents contention, the Comelec-prescribed appeal fee
was not superseded by A.M. No. 07-4-15-SC.
The requirement of these two appeal fees by two different
jurisdictions had caused confusion in the implementation by the
Comelec of its procedural rules on payment of appeal fees for
the perfection of appeals, prompting the Comelec to issue
Resolution No. 8486 (July 15, 2008) clarifying as follows:
1. That if the appellant had already paid the amount of
P1,000.00 before the Regional Trial Court, Metropolitan Trial
Court, Municipal Trial Court or lower courts within the five-day
period,pursuant to Section 9, Rule 14 of the Rules of Procedure
in Election Contests Before the Courts Involving Elective
Municipal and Barangay Officials (Supreme Court
Administrative Order No. 07-4-15) and his Appeal was given
due course by the Court, said appellant is required to pay the
Comelec appeal fee of P3,200.00 at the Commission's Cash
Division through the Electoral Contests Adjudication
Department (ECAD) or by postal money order payable to the
Commission on Elections through ECAD, within a period of
fifteen days (15) from the time of the filing of the Notice of
Appeal with the lower court. If no payment is made within the
prescribed period, the appeal shall be dismissed pursuant to
Section 9(a) of Rule 22 of the COMELEC Rules of Procedure,
which provides:
Sec. 9. Grounds for Dismissal of Appeal. The appeal may be
dismissed upon motion of either party or at the instance of the
Commission on any of the following grounds:
(a) Failure of the appellant to pay the correct appeal fee; x x x
2. That if the appellant failed to pay the P1,000.00-appeal fee
with the lower court within the five (5) day period as prescribed
by the Supreme Court New Rules of Procedure but the case
was nonetheless elevated to the Commission, the appeal shall
be dismissed outright by the Commission, in accordance with
the aforestated Section 9(a) of Rule 22 of the Comelec Rules of
Procedure. (Emphasis, italics and underscoring supplied)
That Comelec Resolution No. 8486 took effect on July 24,
2008[20] or after a party had filed a notice of appeal, as in the
case of petitioner, does not exempt it from paying the Comelec-
prescribed appeal fees. The Comelec merely clarified the
existing rules on the payment of such appeal fees, and allowed
the payment thereof within 15 days from filing the notice of
appeal.
In the recent case of Aguilar v. Comelec,[21] the Court
harmonized the rules with the following ratiocination:
The foregoing resolution is consistent with A.M. No. 07-4-15-
SC and the COMELEC Rules of Procedure, as amended. The
appeal to the COMELEC of the trial courts decision in election
contests involving municipal and barangay officials is perfected
upon the filing of the notice of appeal and the payment of the
P1,000.00 appeal fee to the court that rendered the decision
within the five-day reglementary period. The non-payment or
the insufficient payment of the additional appeal fee of
P3,200.00 to the COMELEC Cash Division, in accordance with
Rule 40, Section 3 of the COMELEC Rules of Procedure, as
amended, does not affect the perfection of the appeal and does
not result in outright or ipso facto dismissal of the
appeal.Following, Rule 22, Section 9(a) of the COMELEC
Rules, the appeal may be dismissed. And pursuant to Rule 40,
Section 18 of the same rules, if the fees are not paid, the
COMELEC may refuse to take action thereon until they are
paid and may dismiss the action or the proceeding. In such a
situation, the COMELEC is merely given the discretion to
dismiss the appeal or not. (Italics in the original; emphasis and
underscoring supplied)
In Aguilar, the Court recognized the Comelecs discretion to
allow or dismiss a perfected appeal that lacks payment of the
Comelec-prescribed appeal fee. The Court stated that it was
more in keeping with fairness and prudence to allow the appeal
which was, similar to the present case, perfected months
before the issuance of Comelec Resolution No. 8486.
Aguilar has not, however, diluted the force of Comelec
Resolution No. 8486 on the matter of compliance with the
Comelec-required appeal fees. To reiterate, Resolution No.
8486 merely clarified the rules on Comelec appeal fees which
have been existing as early as 1993, the amount of which was
last fixed in 2002. The Comelec even went one step backward
and extended the period of payment to 15 days from the filing
of the notice of appeal.
Considering that a year has elapsed after the issuance on July
15, 2008 of Comelec Resolution No. 8486, and to further affirm
the discretion granted to the Comelec which it precisely
articulated through the specific guidelines contained in said
Resolution, the Court NOW DECLARES, for the guidance of
the Bench and Bar, that for notices of appeal filed after the
promulgation of this decision, errors in the matter of non-
payment or incomplete payment of the two appeal fees in
election cases are no longer excusable.
On the Comelecs application of the doctrine of estoppel by
laches, records show that petitioner raised the issue of lack of
jurisdiction for his and private respondents non-payment of the
appeal fee only after the Comelec appreciated the contested
ballots and ruled in favor of respondent, an issue which could
have been raised with reasonable diligence at the earliest
opportunity. The Court finds the Comelec resolution well-taken.
That petitioners filing of the appellees brief was an invocation of
the Comelecs jurisdiction and an indication of his active
participation cannot be refuted on the mere asseveration that
he was only complying with the Comelecs directive to file the
same. The submission of briefs was ordered precisely because
the Comelec could not anticipate the claims and defenses that
would be raised by the parties. Moreover, in his Verified Motion
for Reconsideration, petitioner once again pleaded to the
Comelec to exercise its jurisdiction by dismissing private
respondents appeal on the merits.[22]
The doctrine of estoppel by laches is not new in election cases.
It has been applied in at least two cases involving the payment
of filing fees.
In Navarosa v. Comelec,[23] the therein petitioner questioned
the trial courts jurisdiction over the election protest in the
subsequent petition for certiorari before the Comelec involving
the ancillary issue of execution pending appeal. The petitioner
having raised for the first time the therein private respondents
incomplete payment of the filing fee in her Memorandum
submitted to the Comelec, the Court applied the doctrine of
estoppel in this wise:
In an earlier ruling, the Court held that an election protest is not
dismissible if the protestant, relying on the trial courts
assessment, pays only a portion of the COMELEC filing fee.
However, in Miranda v. Castillo, the Court, reiterating Loyola v.
Commission on Elections, held that it would no longer tolerate
any mistake in the payment of the full amount of filing fees for
election cases filed after the promulgation of the Loyola
decision on March 25, 1997. Nevertheless, our rulings in
Miranda and Loyola are inapplicable to the present case.
At no time did petitioner Navarosa ever raise the issue of
respondent Estos incomplete payment of the COMELEC filing
fee during the full-blown trial of the election protest. Petitioner
Navarosa actively participated in the proceedings below by
filing her Answer, presenting her evidence, and later, seeking a
stay of execution by filing a supersedeas bond. Not only this,
she even invoked the trial courts jurisdiction by filing a counter-
protest against respondent Esto in which she must have prayed
for affirmative reliefs.
Petitioner Navarosa raised the issue of incomplete payment of
the COMELEC filing fee only in her memorandum to
respondent Estos petition before the COMELEC Second
Division.Petitioner Navarosas conduct estops her from
claiming, at such late stage, that the trial court did not after all
acquire jurisdiction over the election protest. Although a party
cannot waive jurisdictional issues and may raise them at any
stage of the proceedings, estoppel may bar a party from raising
such issues. In Pantranco North Express v. Court of Appeals,
this Court applied the doctrine of estoppel against a party who
also belatedly raised the issue of insufficient payment of filing
fees to question the courts exercise of jurisdiction over the
case. We held:
The petitioner raised the issue regarding jurisdiction for the first
time in its Brief filed with public respondent [Court of Appeals] x
x x After vigorously participating in all stages of the case before
the trial court and even invoking the trial courts authority in
order to ask for affirmative relief, the petitioner is effectively
barred by estoppel from challenging the trial courts jurisdiction.
Indeed, in Miranda and Loyola, as in every other case where
we sustained the dismissal of the election protest for lack or
incomplete payment of the COMELEC filing fee, the protestee
timely raised the non-payment in a motion to dismiss. Before
any revision of the contested ballots, the protestee filed a
petition for certiorari questioning the trial courts jurisdiction
before the COMELEC and eventually before this Court. In
contrast, in the instant case, petitioner Navarosa did not raise
the incomplete payment of the COMELEC filing fee in a motion
to dismiss.Consequently, the trial court proceeded with the
revision of the contested ballots and subsequently rendered
judgment on the election protest. Petitioner Navarosa raised for
the first time the incomplete payment of the COMELEC filing
fee in her memorandum before the COMELEC Second
Division.
Thus, estoppel has set in precluding petitioner Navarosa from
questioning the incomplete payment of the COMELEC filing
fee, and in effect assailing the exercise of jurisdiction by the
trial court over the election protest. The law vests in the trial
court jurisdiction over election protests although the exercise of
such jurisdiction requires the payment of docket and filing fees
by the party invoking the trial courts jurisdiction. Estoppel now
prevents petitioner Navarosa from questioning the trial courts
exercise of such jurisdiction, which the law and not any act of
the parties has conferred on the trial court. At this stage, the
remedy for respondent Estos incomplete payment is for him to
pay the P200 deficiency in the COMELEC filing fee. It is highly
unjust to the electorate of Libacao, Aklan, after the trial court
has completed revision of the contested ballots, to dismiss the
election protest and forever foreclose the determination of the
true winner of the election for a mere P200 deficiency in the
COMELEC filing fee. x x x[24] (Italics and emphasis in the
original; underscoring supplied)
In Villagracia v. Commission on Elections,[25] the Court
dismissed the petition after finding that the therein petitioner
was estopped from raising the jurisdictional issue for the first
time on appeal. The Court ratiocinated:
Petitioner contends that had public respondent followed the
doctrine in Soller v. COMELEC, it would have sustained the
ruling of the First Division that the trial court lacked jurisdiction
to hear the election protest due to private respondents failure to
pay the correct filing fees.
We disagree. The Soller case is not on all fours with the case at
bar. In Soller, petitioner therein filed with the trial court a motion
to dismiss private respondents protest on the ground of, among
others, lack of jurisdiction. In the case at bar, petitioner actively
participated in the proceedings and voluntarily submitted to the
jurisdiction of the trial court. It was only after the trial court
issued its decision adverse to petitioner that he raised the issue
of jurisdiction for the first time on appeal with the COMELECs
First Division.
While it is true that a court acquires jurisdiction over a case
upon complete payment of the prescribed filing fee, the rule
admits of exceptions, as when a party never raised the issue of
jurisdiction in the trial court. As we stated in Tijam v.
Sibonghanoy, et al., viz.:
xxx [I]t is too late for the loser to question the jurisdiction or
power of the court. xxx [I]t is not right for a party who has
affirmed and invoked the jurisdiction of a court in a particular
matter to secure an affirmative relief, to afterwards deny that
same jurisdiction to escape a penalty.
It was therefore error on the part of the COMELECs First
Division to indiscriminately apply Soller to the case at bar. As
correctly pointed out by public respondent in its questioned
Resolution, viz.:
x x x. Villagracia never assailed the proceedings of the trial
court for lack of jurisdiction during the proceedings therein.
Instead, he filed an Answer to the Protest on 2 August 2002
and then actively participated during the hearings and revision
of ballots and subsequently filed his Formal Offer of Exhibits.
The issue on the filing fees was never raised until the Decision
adverse to his interest was promulgated by the trial court and
only on [a]ppeal to the COMELEC. Necessarily, we apply the
case of Alday vs. FGU Insurance Corporation where the
Supreme Court instructed that "although the lack of jurisdiction
of a court may be raised at any stage of the action, a party may
be estopped from raising such questions if he has actively
taken part in the very proceedings which he questions,
belatedly objecting to the courts jurisdiction in the event that the
judgment or order subsequently rendered is adverse to him."
Villagracia is therefore estopped from questioning the
jurisdiction of the trial court only on [a]ppeal.[26] (Underscoring
supplied)
To allow petitioner to espouse his stale defense at such late
stage of the proceedings would run afoul of the basic tenets of
fairness. It is of no moment that petitioner raised the matter in a
motion for reconsideration in the same appellate proceedings in
the Comelec, and not before a higher court. It bears noting that
unlike appellate proceedings before the Comelec, a motion for
reconsideration of a trial courts decision in an election protest is
a prohibited pleading,[27] which explains why stale claims of
non-payment of filing fees have always been raised belatedly
before the appellate tribunal. In appellate proceedings before
the Comelec, the stage to belatedly raise a stale claim of non-
payment of appeal fees to subvert an adverse decision is a
motion for reconsideration. The Commission thus did not
gravely abuse its discretion when it did not countenance the
glaring inequity presented by such situation.
More. Petitioner, guilty as he is of the same act that he assails,
stands on equal footing with private respondent, for he himself
admittedly did not pay the appeal fee, yet the Comelec similarly
adjudicated his appeal on the merits, the resolution of which he
glaringly does not assail in the present petition. He who comes
to court must come with clean hands.
Election cases cannot be treated in a similar manner as
criminal cases where, upon appeal from a conviction by the trial
court, the whole case is thrown open for review and the
appellate court can resolve issues which are not even set forth
in the pleadings.[28] Petitioner having set his eyes only on the
issue of appeal fees, the present petition must be resolved, as
it is hereby resolved, on the basis of such singular ground
which, as heretofore discussed, failed to convince the Court.
En passant, appreciation of the contested ballots and election
documents involves a question of fact best left to the
determination of the Comelec, a specialized agency tasked with
the supervision of elections all over the country. In the absence
of grave abuse of discretion or any jurisdictional infirmity or
error of law, the factual findings, conclusions, rulings and
decisions rendered by the Comelec on matters falling within its
competence shall not be interfered with by this Court.[29]
By the assailed Resolutions, the Comelec declared as marked
those ballots containing the words Ruby, Ruby Lizardo and its
variants after finding a discernible pattern in the way these
words were written on the ballots, leading to the conclusion that
they were used to identify the voter. The Comelec found
material the following evidence aliunde: the name Ruby Lizardo
referred to a community leader and political supporter of
petitioner; said name and its variants were written on several
ballots in different precints; and the fact that Ruby Lizardo
acted as an assistor in the elections cannot hold water since an
assistor cannot assist in the preparation of the ballots for more
than three times.[30] The Comelec did not invalidate the other
ballots for absence of evidence aliunde to prove that the
markings therein were used for the purpose of identifying the
voter. It ruled that circles, crosses and lines (e.g., X marks)
placed on spaces on which the voter has not voted are
considered signs to indicate his desistance from voting and
should not invalidate the ballot.
Petitioner failed to establish, or even allege, the presence of
grave abuse of discretion with respect to the substance of the
assailed Resolutions. Petitioners silent stance on this point is
an implied waiver of whatever infirmities or errors of law against
the substantive aspect of the assailed Resolutions, for the
Court abhors a piecemeal approach in the presentation of
arguments and the adjudication thereof.
WHEREFORE, the petition is DISMISSED for lack of merit. The
July 17, 2008 Resolution and the January 26, 2009 Resolution
of the Commission on Elections are AFFIRMED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 196355 September 18, 2012
BIENVENIDO WILLIAM D. LLOREN, Petitioner,
vs.
THE COMMISSION ON ELECTIONS and ROGELIO PUA,
JR., Respondents.
DECISION
BERSAMIN, J.:
This special civil action for certiorari seeks to set aside the
dismissal by the First Division of the Commission on Elections
(COMELEC) of petitioners appeal taken in his election protest
on the ground that he did not pay the appeal fee on time and
the denial of his motion for reconsideration by the COMELEC
En Banc on the ground that he did not pay the motion fee on
time as required by the rules of the COMELEC.
The dismissal of petitioners appeal was through the order
issued on January 31, 2011 by the First Division of the
COMELEC,1 while the denial of the motion for reconsideration
was through the order dated March 16, 2011 of the COMELEC
En Banc.2
Antecedents
Petitioner and respondent Rogelio Pua, Jr. (Pua) were the
candidates for Vice-Mayor of the Municipality of Inopacan,
Leyte in the May 10, 2010 Automated National and Local
Elections. The Municipal Board of Canvassers proclaimed Pua
as the winning candidate with a plurality of 752 votes for
garnering 5,682 votes as against petitioners 4,930 votes.
Alleging massive vote-buying, intimidation, defective PCOS
machines in all the clustered precincts, election fraud, and
other election-related manipulations, petitioner commenced
Election Protest Case (EPC) No. H-026 in the Regional Trial
Court (RTC) in Hilongos, Leyte.
In his answer with special and affirmative defenses and
counterclaim, Pua alleged that the election protest stated no
cause of action, was insufficient in form and content, and
should be dismissed for failure of petitioner to pay the required
cash deposit.
On November 12, 2012, the RTC dismissed the election protest
for insufficiency in form and substance and for failure to pay the
required cash deposit,3 viz:
ALL THE FOREGOING CONSIDERED, for insufficiency in form
and content as required under Rule 2, Sec. 10 (c) (ii) and (iv)
and for failing to make the required cash deposit within the
given period, the instant election protest is hereby DISMISSED.
With costs against the protestant.
SO ORDERED.4
On November 17, 2010, petitioner filed a notice of appeal in the
RTC,5 and paid the appeal fee of 1,000.00 to the same court.
The RTC granted due course to the appeal on November 24,
2010.
On December 2, 2010, the fifteenth day from the filing of the
notice of appeal, petitioner remitted the appeal fee of
3,200.00 to the COMELEC Electoral Contests Adjudication
Department (ECAD) by postal money order.6
Through the first assailed order of January 31, 2011, however,
the COMELEC First Division dismissed the appeal on the
ground of petitioners failure to pay the appeal fee within the
period set under Section 4, Rule 40 of the COMELEC Rules of
Procedure,7 holding:
The Commission (First division) RESOLVED as it hereby
RESOLVES to DISMISS the instant appeal case for protestant-
appellants failure to pay the amount of Three thousand Pesos
(Php3,000.00) appeal fee within the reglementary period under
the 1993 Comelec Rules of Procedure as amended by
Comelec Resolution No. 02-0130 dated 18 September 2002.
Section 4, Rule 40 of the Comelec Rules of Procedure
mandates the payment of the appeal fee within the period to file
the notice of appeal or five (5) days from receipt of the decision
sought to be appealed, while Sec. 9, Rule 22 of the same
Rules provides that failure to pay the appeal fee is a ground for
the dismissal of the appeal. These provisions were reinforced
by the ruling of the Supreme Court in the case of Divinagracia
vs. Comelec (G.R. Nos. 186007 & 186016) promulgated on 27
July 2009. The Ruling declared that for notices of appeal filed
after its promulgation, errors in the matters of non-payment or
incomplete payment of appeal fees in the court a quo and the
Commission on Elections are no longer excusable.
SO ORDERED.
Petitioner moved for the reconsideration of the dismissal on
February 14, 2011, and later sent a notice dated March 3, 2011,
stating that he paid the motion fee of 300.00 by postal money
order.
On March 16, 2011, the COMELEC En Banc denied petitioners
motion for reconsideration through the second assailed order,
viz: 8
xxx the Commission En Banc hereby resolves to DENY the
same for protestant-appellants FAILURE to PAY the required
motion fees prescribed under Section 7 (f), Rule 40, Comelec
Rules of Procedure, as amended by Comelec Minute
Resolution No. 02-0130 dated September 18, 2002, in relation
to Section 18, Rule 40, same Comelec Rules.
In the same order of March 16, 2011, the COMELEC En Banc
directed the Clerk of the Commission, ECAD, to issue an entry
of judgment and to record the entry of judgment in the Book of
Entries of Judgment.
Aggrieved, petitioner commenced this special civil action for
certiorari to annul the assailed orders of the COMELEC.
Issue
Petitioner contends that he timely filed his notice of appeal in
the RTC and timely paid the appeal fee of 1,000.00 on
November 17, 2010; and that he also paid the appeal fee of
3,200.00 to the COMELEC ECAD on December 2, 2010 within
the 15-day reglementary period counted from the filing of the
notice of appeal, conformably with Resolution No. 8486 dated
July 15, 2008.
In his comment, Pua maintains that petitioner paid the
3,200.00 beyond the five-day reglementary period under
Section 4, Rule 40 of the COMELEC Rules of Procedure; and
that petitioner did not pay the motion fee of 300.00 prescribed
under Section 7(f), Rule 40 of the same rules. Hence, Pua
submits that the dismissal of petitioners appeal and denial of
his motion for reconsideration did not constitute grave abuse of
discretion.
The issue of whether the COMELEC committed grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing
the assailed orders is approached through two questions: firstly,
the procedural, which concerns the determination of whether or
not petitioner timely paid the appeal fee and motion fee under
the COMELEC Rules of Procedure; and, secondly, the
substantive, which delves on whether or not the appeal may
still proceed.
Ruling
The petition is meritorious as to the procedural question, but
not as to the substantive question.
1.
Procedural Question:
Petitioner timely perfected his appeal
The rules on the timely perfection of an appeal in an election
case requires two different appeal fees, one to be paid in the
trial court together with the filing of the notice of appeal within
five days from notice of the decision, and the other to be paid in
the COMELEC Cash Division within the 15-day period from the
filing of the notice of appeal.
In A.M. No. 07-4-15-SC, the Court promulgated the Rules of
Procedure In Election Contests Before The Courts Involving
Elective Municipal and Barangay Officials (hereafter, the Rules
in A.M. No. 07-4-15-SC), effective on May 15, 2007, to set
down the procedure for election contests and quo warranto
cases involving municipal and barangay officials that are
commenced in the trial courts. The Rules in A.M. No. 07-4-15-
SC superseded Rule 35 ("Election Contests Before Courts of
General Jurisdiction") and Rule 36 ("Quo Warranto Case
Before Courts of General Jurisdiction") of the 1993 COMELEC
Rules of Procedure.
Under Section 8,9 of Rule 14 of the Rules in A.M. No. 07-4-15-
SC, an aggrieved party may appeal the decision of the trial
court to the COMELEC within five days after promulgation by
filing a notice of appeal in the trial court that rendered the
decision, serving a copy of the notice of appeal on the adverse
counsel or on the adverse party if the party is not represented
by counsel. Section 9,10 of Rule 14 of the Rules in A.M. No.
07-4-15-SC prescribes for that purpose an appeal fee of
1,000.00 to be paid to the trial court rendering the decision
simultaneously with the filing of the notice of appeal.
It should be stressed, however, that the Rules in A.M. No. 07-4-
15-SC did not supersede the appeal fee prescribed by the
COMELEC under its own rules of procedure. As a result, "the
requirement of two appeal fees by two different jurisdictions
caused a confusion in the implementation by the COMELEC of
its procedural rules on the payment of appeal fees necessary
for the perfection of appeals."11 To remove the confusion, the
COMELEC issued Resolution No. 8486,12 effective on July 24,
2008,13 whereby the COMELEC clarified the rules on the
payment of the two appeal fees by allowing the appellant to pay
the COMELECs appeal fee of 3,200.00 at the COMELECs
Cash Division through the ECAD or by postal money order
payable to the COMELEC within a period of 15 days from the
time of the filing of the notice of appeal in the trial court, to wit:
xxxx
1. That if the appellant had already paid the amount of
1,000.00 before the Regional Trial Court, Metropolitan Trial
Court, Municipal Trial Court or lower courts within the five-day
period, pursuant to Section 9, Rule 14 of the Rules of
Procedure in Election Contests Before the Courts Involving
Elective Municipal and Barangay Officials (Supreme Court
Administrative Order No. 07-4-15) and his Appeal was given
due course by the Court, said appellant is required to pay the
Comelec appeal fee of 3,200.00 at the Commissions Cash
Division through the Electoral Contests Adjudication
Department (ECAD) or by postal money order payable to the
Commission on Elections through ECAD, within a period of
fifteen days (15) from the time of the filing of the Notice of
Appeal with the lower court. If no payment is made within the
prescribed period, the appeal shall be dismissed pursuant to
Section 9 (a) of Rule 22 of the COMELEC Rules of Procedure,
which provides:
Sec. 9. Grounds for Dismissal of Appeal. The appeal may be
dismissed upon motion of either party or at the instance of the
Commission on any of the following grounds:
(a) Failure of the appellant to pay the correct appeal fee; xxx
2. That if the appellant failed to pay the 1,000.00-appeal fee
with the lower court within the five (5) day period as prescribed
by the Supreme Court New Rules of Procedure but the case
was nonetheless elevated to the Commission, the appeal shall
be dismissed outright by the Commission, in accordance with
the aforestated Section 9 (a) of Rule 22 of the Comelec Rules
of Procedure.
xxxx
Following the clarification made by the COMELEC in
Resolution No. 8486, the Court declared an end to the
confusion arising from the requirement of two appeal fees
effective on July 27, 2009, the date of promulgation of the ruling
in Divinagracia, Jr. v. Commission on Elections14 by
announcing that "for notices of appeal filed after the
promulgation of this decision, errors in the matter of non-
payment or incomplete payment of the two appeal fees in
election cases are no longer excusable."15
In light of the foregoing, the Court finds that petitioner perfected
his appeal of the decision rendered on November 12, 2012 by
the RTC in EPC No. H-026. He filed his notice of appeal and
paid the 1,000.00 appeal fee to the RTC on November 17,
2012. Such filing and payment, being done within five days
from the promulgation of the decision, complied with Section 8,
Rule 14 of the Rules in A.M. No. 07-4-15-SC. Thereafter, he
paid the appeal fee of 3,200.00 to the COMELEC Cash
Division through the ECAD on December 2, 2012. Such
payment, being done on the fifteenth day from his filing of the
notice of appeal in the RTC, complied with Resolution No.
8486.
Yet, in determining whether petitioner had perfected his appeal,
the COMELEC First Division relied on Section 4 of Rule 40 of
its 1993 Rules of Procedure, a provision that required an
appellant to pay the appeal fee prescribed by the COMELEC entirely ignoring Resolution No. 8486. Accordingly, the assailed
within the period to file the notice of appeal.16
The reliance on Section 4 of Rule 40 of the COMELEC 1993
Rules of Procedure was plainly arbitrary and capricious. The
COMELEC First Division thereby totally disregarded Resolution
No. 8486, whereby the COMELEC revised Section 4 of Rule 40
of the 1993 Rules of Procedure by expressly allowing the
appellant "to pay the Comelec appeal fee of 3,200.00 at the
Commissions Cash Division through the Electoral Contests
Adjudication Department (ECAD) or by postal money order
payable to the Commission on Elections through ECAD, within
a period of fifteen days (15) from the time of the filing of the
Notice of Appeal with the lower court." In effect, the period of
perfecting the appeal in the COMELEC was extended from the
original period of five days counted from promulgation of the
decision by the trial court to a longer period of 15 days
reckoned from the filing of the notice of appeal in the trial court.
Accordingly, the order issued on January 31, 2011 by the
COMELEC First Division was null and void for being contrary to
Resolution No. 8486.
As to the order issued on March 16, 2011 by the COMELEC En
Banc, the Court finds that the COMELEC En Banc was
capricious and arbitrary in thereby denying petitioners motion
for reconsideration on the ground that he did not
simultaneously pay the motion fee of 300.00 prescribed by
Section 7(f), Rule 40 of the 1993 Rules of Procedure.
The non-payment of the motion fee of 300.00 at the time of
the filing of the motion for reconsideration did not warrant the
outright denial of the motion for reconsideration, but might only
justify the COMELEC to refuse to take action on the motion for
reconsideration until the fees were paid, or to dismiss the
action or proceeding when no full payment of the fees is
ultimately made. The authority to dismiss is discretionary and
permissive, not mandatory and exclusive, as expressly
provided in Section 18, Rule 40 of the 1993 Rules of Procedure
itself, to wit:
Section 18. Non-payment of Prescribed Fees. - If the fees
above prescribed are not paid, the Commission may refuse to
take action thereon until they are paid and may dismiss the
action or the proceeding. (emphasis supplied)
The evident intent of rendering Section 18, Rule 40 of the 1993
Rules of Procedure discretionary and permissive is to accord
the movant an opportunity to pay the motion fee in full. The dire
outcome of denial of the motion for reconsideration should
befall the movant only upon his deliberate or unreasonable
failure to pay the fee in full. It appears, however, that
petitioners failure to pay the motion fee simultaneously with his
filing of the motion for reconsideration was neither deliberate
nor unreasonable. He actually paid the fee by postal money
order on March 3, 2011.17
In light of his having complied with the requirements for a timely
perfection of the appeal in both the RTC and the COMELEC,
and considering that he actually paid the motion fee, the
COMELEC En Bancs strict and rigid application of the
discretionary and permissive rule amounted to giving undue
primacy to technicality over substance. That outcome would not
be just to petitioner, for the COMELEC En Banc would close its
eyes to the patent error committed by the First Division in
order of March 16, 2011 is another nullity to be struck down.
2.
Substantive Question:
Petitioners election protest lacks merit
Nonetheless, we affirm the dismissal by the RTC of EPC No. H-
026 for being in accord with the Rules in A.M. No. 10-4-1-SC.
Section 10(c), Rule 2 of the Rules in A.M. No. 10-4-1-SC
pertinently provides as follows:
Section 10. Contents of the protest or petition.
xxxx
c. An election protest shall also state:
(i) that the protestant was a candidate who had duly filed a
certificate of candidacy and had been voted for the same office;
(ii) the total number of precincts in the municipality;
(iii) the protested precincts and votes of the parties in the
protested precincts per the Statement of Votes by Precinct or, if
the votes of the parties are not specified, an explanation why
the votes are not specified; and
(iv) a detailed specification of the acts or omissions complained
of showing the electoral frauds, anomalies or irregularities in
the protested precincts. (Emphasis supplied)
As the findings of the RTC show, petitioner did not indicate the
total number of precincts in the municipality in his election
protest.1wphi1 The omission rendered the election protest
insufficient in form and content, and warranted its summary
dismissal, in accordance with Section 12, Rule 2 of the Rules in
A.M. No. 10-4-1-SC, to wit:
Section 12. Summary dismissal of election contests. The
court shall summarily dismiss, motu proprio, an election protest,
counter-protest or petition for quo warranto on any of the
following grounds:
(a) The court has no jurisdiction over the subject matter;
(b) The petition is insufficient in form and content as required
under Section 10;
(c) The petition is filed beyond the period prescribed in these
Rules;
(d) The filing fee is not paid within the period for filing the
election protest or petition for quo warranto; and
(e) In a protest case where cash deposit is required, the
deposit is not paid within five (5) days from the filing of the
protest. (Emphasis supplied)
Likewise, the RTC found that the cash deposit made by
petitioner was insufficient. Considering that the Court cannot
disturb the findings on the insufficiency of petitioners cash
deposit made by the trial court, that finding was another basis
for the summary dismissal of the election protest under Section
12.
We note that the summary dismissal of the election protest
upon any of the grounds mentioned in Section 12 is mandatory.
WHEREFORE, the Court PARTIALLY GRANTS the petition for
certiorari; ANNULS AND SETS ASIDE the assailed orders of
the COMELEC First Division and the COMELEC En Banc
respectively dated January 31, 2011 and March 16, 2011;
AFFIRMS the Decision rendered on November 12, 2010 by the
Regional Trial Court dismissing Election Protest Case No. H-
026 for insufficiency in form and content of the election protest
as well as for insufficiency of protestants cash deposit; and
ORDERS petitioner to pay the costs of suit.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 104654 June 6, 1994
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
HON. ROSALIO G. DE LA ROSA, PRESIDING JUDGE OF
THE REGIONAL TRIAL COURT, BRANCH 28, MANILA and
JUAN G. FRIVALDO, respondents.
G.R. No. 105715 June 6, 1994
RAUL R. LEE, petitioner,
vs.
COMMISSION ON ELECTIONS and JUAN G. FRIVALDO,
respondents.
G.R. No. 105735 June 6, 1994
RAUL R. LEE, petitioner,
vs.
COMMISSION ON ELECTIONS and JUAN G. FRIVALDO,
respondents.
The Solicitor General for petitioner in G.R. No. 104654.
Yolando F. Lim counsel for private respondent.
QUIASON, J.:
In Frivaldo v. Commission on Elections, 174 SCRA 245 (1989),
this Court declared private respondent, Juan G. Frivaldo, an
alien and therefore disqualified from serving as Governor of the
Province of Sorsogon.
Once more, the citizenship of private respondent is put in issue
in
these petitions docketed as G.R. No.104654 and G.R. No.
105715 and G.R. No. 105735. The petitions were consolidated
since they principally involve the same issues and parties.
I 33).
G.R. No. 104654
This is a petition for certiorari under Rule 45 of the Revised
Rules of Court in relation to R.A. No. 5440 and Section 25 of
the Interim Rules, filed by the Republic of the Philippines: (1) to
annul the Decision dated February 27, 1992 of the Regional
Trial Court, Branch 28, Manila, in SP Proc. No. 91-58645,
which re-admitted private respondent as a Filipino citizen under
the Revised Naturalization Law (C.A. No. 63 as amended by
C.A. No. 473); and (2) to nullify the oath of allegiance taken by
private respondent on February 27, 1992.
On September 20, 1991, petitioner filed a petition for
naturalization captioned: "In the Matter of Petition of Juan G.
Frivaldo to be Re-admitted as a Citizen of the Philippines under
Commonwealth Act No. 63" (Rollo, pp. 17-23).
In an Order dated October 7, 1991 respondent Judge set the
petition for hearing on March 16, 1992, and directed the
publication of the said order and petition in the Official Gazette
and a newspaper of general circulation, for three consecutive
weeks, the last publication of which should be at least six
months before the said date of hearing. The order further
required the posting of a copy thereof and the petition in a
conspicuous place in the Office of the Clerk of Court of the
Regional Trial Court, Manila (Rollo, pp. 24-26).
On January 14, 1992, private respondent filed a "Motion to Set
Hearing Ahead of Schedule," where he manifested his intention
to run for public office in the May 1992 elections. He alleged
that the deadline for filing the certificate of candidacy was
March 15, one day before the scheduled hearing. He asked
that the hearing set on March 16 be cancelled and be moved to
January 24 (Rollo, pp. 27-28).
The motion was granted in an Order dated January 24, 1992,
wherein the hearing of the petition was moved to February 21,
1992. The said order was not published nor a copy thereof
posted.
On February 21, the hearing proceeded with private
respondent as the sole witness. He submitted the following
documentary evidence: (1) Affidavit of Publication of the Order
dated October 7, 1991 issued by the publisher of The Philippine
Star (Exh. "A"); (2) Certificate of Publication of the order issued
by the National Printing Office (Exh. "B"); (3) Notice of Hearing
of Petition (Exh. "B-1"); (4) Photocopy of a Citation issued by
the National Press Club with private respondents picture
(Exhs. "C" and "C-2"); (5) Certificate of Appreciation issued by
the Rotary Club of Davao (Exh. "D"); (6) Photocopy
of a Plaque of Appreciation issued by the Republican College,
Quezon City (Exh. "E"); (7) Photocopy of a Plaque of
Appreciation issued by the Davao-Bicol Association (Exh. "F");
(8) Certification issued by the Records Management and
Archives Office that the record of birth of private respondent
was not on file (Exh. "G"); and (8) Certificate of Naturalization
issued by the United States District Court (Exh. "H").
Six days later, on February 27, respondent Judge rendered the
assailed Decision, disposing as follows:
WHEREFORE, the petition is GRANTED. Petitioner JUAN G.
FRIVALDO, is re-admitted as a citizen of the Republic of the
Philippines by naturalization, thereby vesting upon him, all the
rights and privileges of a natural born Filipino citizen (Rollo, p.
On the same day, private respondent was allowed to take his
oath of allegiance before respondent Judge (Rollo, p. 34).
On March 16, a "Motion for Leave of Court to Intervene and to
Admit Motion for Reconsideration" was filed by Quiterio H.
Hermo. He alleged that the proceedings were tainted with
jurisdictional defects, and prayed for a new trial to conform with
the requirements of the Naturalization Law.
After receiving a copy of the Decision on March 18, 1992, the
Solicitor General interposed a timely appeal directly with the
Supreme Court.
G.R. No. 105715
This is a petition for certiorari, mandamus with injunction under
Rule 65 of the Revised Rules of Court in relation to Section 5(2)
of Article VIII of the Constitution with prayer for temporary
restraining order filed by Raul R. Lee against the Commission
on Elections (COMELEC) and private respondent, to annul the
en banc Resolution of the COMELEC, which dismissed his
petition docketed as SPC Case No. 92-273. The said petition
sought to annul the proclamation of private respondent as
Governor-elect of the Province of Sorsogon.
Petitioner was the official candidate of the Laban ng
Demokratikong Pilipino (LDP) for the position of governor of the
Province of Sorsogon in the May 1992 elections. Private
respondent was the official candidate of the Lakas-National
Union of Christian Democrats (Lakas-NUCD) for the same
position.
Private respondent was proclaimed winner on May 22, 1992.
On June 1, petitioner filed a petition with the COMELEC to
annul the proclamation of private respondent as Governor-elect
of the Province of Sorsogon on the grounds: (1) that the
proceedings and composition of the Provincial Board of
Canvassers were not in accordance with law; (2) that private
respondent is an alien, whose grant of Philippine citizenship is
being questioned by the State in G.R. No. 104654; and (3) that
private respondent is not a duly registered voter. Petitioner
further prayed that the votes case in favor of private respondent
be considered as stray votes, and that he, on the basis of the
remaining valid votes cast, be proclaimed winner.
On June 10, the COMELEC issued the questioned en banc
resolution which dismissed the petition for having been filed out
of time, citing Section 19 of R.A. No. 7166. Said section
provides that the period to appeal a ruling of the board of
canvassers on questions affecting its composition or
proceedings was three days.
In this petition, petitioner argues that the COMELEC acted with
grave abuse of discretion when it ignored the fundamental
issue of private respondents disqualification in the guise of
technicality.
Petitioner claims that the inclusion of private respondents
name in the list of registered voters in Sta. Magdalena,
Sorsogon was invalid because at the time he registered as a
voter in 1987, he was as American citizen.
Petitioner further claims that the grant of Filipino citizenship to
private respondent is not yet conclusive because the case is
still on appeal before us.
Petitioner prays for: (1) the annulment of private respondents
proclamation as Governor of the Province of Sorsogon; (2) the
deletion of private respondents name from the list of
candidates for the position of governor; (3) the proclamation of
the governor-elect based on the remaining votes, after the
exclusion of the votes for private respondent; (4) the issuance
of a temporary restraining order to enjoin private respondent
from taking his oath and assuming office; and (5) the issuance
of a writ of mandamus to compel the COMELEC to resolve the
pending disqualification case docketed as SPA Case No. 92-
016, against private respondent.
G.R. No. 105735
This is a petition for mandamus under Rule 65 of the Revised
Rules of Court in relation to Section 5(2) of Article VIII of the
Constitution, with prayer for temporary restraining order. The
parties herein are identical with the parties in G.R. No. 105715.
In substance, petitioner prays for the COMELECs immediate
resolution of SPA Case No. 92-016, which is a petition for the
cancellation of private respondents certificate of candidacy
filed on March 23, 1992 by Quiterio H. Hermo, the intervenor in
G.R. No. 104654 (Rollo, p. 18).
The petition for cancellation alleged: (1) that private respondent
is an American citizen, and therefore ineligible to run as
candidate for the position of governor of the Province of
Sorsogon; (2) that the trial courts decision
re-admitting private respondent as a Filipino citizen was fraught
with legal infirmities rendering it null and void; (3) that assuming
the decision to be valid, private respondents oath of allegiance,
which was taken on the same day the questioned decision was
promulgated, violated Republic Act No. 530, which provides for
a two-year waiting period before the oath of allegiance can be
taken by the applicant; and (4) that the hearing of the petition
on February 27, 1992, was held less than four months from the
date of the last publication of the order and petition. The
petition prayed for the cancellation of private respondents
certificate of candidacy and the deletion of his name from the
list of registered voters in Sta. Magdalena, Sorsogon.
In his answer to the petition for cancellation, private respondent
denied the allegations therein and averred: (1) that Quiterio H.
Hermo, not being a candidate for the same office for which
private respondent was aspiring, had no standing to file the
petition; (2) that the decision re-admitting him to Philippine
citizenship was presumed to be valid; and (3) that no case had
been filed to exclude his name as a registered voter.
Raul R. Lee intervened in the petition for cancellation of private
respondents certificate of candidacy (Rollo, p. 37.).
On May 13, 1992, said intervenor urged the COMELEC to
decide the petition for cancellation, citing Section 78 of the
Omnibus Election Code, which provides that all petitions on
matters involving the cancellation of a certificate of candidacy
must be decided "not later than fifteen days before election,"
and the case of Alonto v. Commission on Election, 22 SCRA
878 (1968), which ruled that all pre-proclamation controversies
should be summarily decided (Rollo,
p. 50).
The COMELEC concedes that private respondent has not yet
reacquired his Filipino citizenship because the decision
granting him the same is not yet final and executory (Rollo, p.
63). However, it submits that the issue of disqualification of a
candidate is not among the grounds allowed in a
pre-proclamation controversy, like SPC Case No. 92-273.
Moreover, the said petition was filed out of time.
The COMELEC contends that the preparation for the elections
occupied much of its time, thus its failure to immediately
resolve SPA Case No. 92-016. It argues that under Section 5 of
Rule 25 of the COMELEC Rules of Procedure, it is excused
from deciding a disqualification case within the period provided
by law for reasons beyond its control. It also assumed that the
same action was subsequently abandoned by petitioner when
he filed before it a petition for quo warranto docketed as EPC
No. 92-35. The quo warranto proceedings sought private
respondents disqualification because of his American
citizenship.
II
G.R. No. 104654
We shall first resolve the issue concerning private respondents
citizenship.
In his comment to the States appeal of the decision granting
him Philippine citizenship in G.R. No. 104654, private
respondent alleges that the precarious political atmosphere in
the country during Martial Law compelled him to seek political
asylum in the United States, and eventually to renounce his
Philippine citizenship.
He claims that his petition for naturalization was his only
available remedy for his reacquisition of Philippine citizenship.
He tried to reacquire his Philippine citizenship through
repatriation and direct act of Congress. However, he was later
informed that repatriation proceedings were limited to army
deserters or Filipino women who had lost their citizenship by
reason of their marriage to foreigners (Rollo, pp. 49-50). His
request to Congress for sponsorship of a bill allowing him to
reacquire his Philippine citizenship failed to materialize,
notwithstanding the endorsement of several members of the
House of Representatives in his favor (Rollo, p. 51). He
attributed this to the maneuvers of his political rivals.
He also claims that the re-scheduling of the hearing of the
petition to an earlier date, without publication, was made
without objection from the Office of the Solicitor General. He
makes mention that on the date of the hearing, the court was
jam-packed.
It is private respondents posture that there was substantial
compliance with the law and that the public was well-informed
of his petition for naturalization due to the publicity given by the
media.
Anent the issue of the mandatory two-year waiting period prior
to the taking of the oath of allegiance, private respondent
theorizes that the rationale of the law imposing the waiting
period is to grant the public an opportunity to investigate the
background of the applicant and to oppose the grant of
Philippine citizenship if there is basis to do so. In his case,
private respondent alleges that such requirement may be
dispensed with, claiming that his life, both private and public,
was well-known. Private respondent cites his achievement as a
freedom fighter and a former Governor of the Province of
Sorsogon for six terms.
The appeal of the Solicitor General in behalf of the Republic of
the Philippines is meritorious. The naturalization proceedings in
SP Proc. No. 91-58645 was full of procedural flaws, rendering
the decision an anomaly.
Private respondent, having opted to reacquire Philippine
citizenship thru naturalization under the Revised Naturalization
Law, is duty bound to follow the procedure prescribed by the
said law. It is not for an applicant to decide for himself and to
select the requirements which he believes, even sincerely, are
applicable to his case and discard those which be believes are
inconvenient or merely of nuisance value. The law does not
distinguish between an applicant who was formerly a Filipino
citizen and one who was never such a citizen. It does not
provide a special procedure for the reacquisition of Philippine
citizenship by former Filipino citizens akin to the repatriation of
a woman who had lost her Philippine citizenship by reason of
her marriage to an alien.
The trial court never acquired jurisdiction to hear the petition for
naturalization of private respondent. The proceedings
conducted, the decision rendered and the oath of allegiance
taken therein, are null and void for failure to comply with the
publication and posting requirements under the Revised
Naturalization Law.
Under Section 9 of the said law, both the petition for
naturalization and the order setting it for hearing must be
published once a week for three consecutive weeks in the
Official Gazette and a newspaper of general circulation
respondent cites his achievements as a freedom fighter and a
former Governor of the Province of Sorsogon for six terms.
The appeal of the Solicitor General in behalf of the Republic of
the Philippines is meritorious. The naturalization proceedings in
SP Proc.
No. 91-58645 was full of procedural flaws, rendering the
decision an anomaly.
Private respondent, having opted to reacquire Philippine
citizenship thru naturalization under the Revised Naturalization
Law, is duty bound to follow the procedure prescribed by the
said law. It is not for an applicant to decide for himself and to
select the requirements which he believes, even sincerely, are
applicable to his case and discard those which he believes are
inconvenient or merely of nuisance value. The law does not
distinguish between an applicant who was formerly a Filipino
citizen and one who was never such a citizen. It does not
provide a special procedure for the reacquisition of Philippine
citizenship by former Filipino citizens akin to the repatriation of
a woman who had lost her Philippine citizenship by reason of
her marriage to an alien.
The trial court never acquired jurisdiction to hear the petition for
naturalization of private respondent. The proceedings
conducted, the decision rendered and the oath of allegiance
taken therein, are null and void for failure to comply with the
publication and posting requirements under the Revised
Naturalization Law.
Under Section 9 of the said law, both the petition for
naturalization and the order setting it for hearing must be
published once a week for three consecutive weeks in the
Official Gazette and a newspaper of general circulation.
Compliance therewith is jurisdictional (Po Yi Bo v. Republic,
205 SCRA 400 [1992]). Moreover, the publication and posting
of the petition and the order must be in its full test for the court
to acquire jurisdiction (Sy v. Republic, 55 SCRA 724 [1974]).
The petition for naturalization lacks several allegations required
by Sections 2 and 6 of the Revised Naturalization Law,
particularly: (1) that the petitioner is of good moral character;
(2) that he resided continuously in the Philippines for at least
ten years; (3) that he is able to speak and write English and
any one of the principal dialects; (4) that he will reside
continuously in the Philippines from the date of the filing of the
petition until his admission to Philippine citizenship; and (5) that
he has filed a declaration of intention or if he is excused from
said filing, the justification therefor.
The absence of such allegations is fatal to the petition (Po Yi Bi
v. Republic, 205 SCRA 400 [1992]).
Likewise, the petition is not supported by the affidavit of at least
two credible persons who vouched for the good moral
character of private respondent as required by Section 7 of the
Revised Naturalization Law. Private respondent also failed to
attach a copy of his certificate of arrival to the petition as
required by Section 7 of the said law.
The proceedings of the trial court was marred by the following
irregularities: (1) the hearing of the petition was set ahead of
the scheduled date of hearing, without a publication of the
order advancing the date of hearing, and the petition itself; (2)
the petition was heard within six months from the last
publication of the petition; (3) petitioner was allowed to take his
oath of allegiance before the finality of the judgment; and (4)
petitioner took his oath of allegiance without observing the two-
year waiting period.
A decision in a petition for naturalization becomes final only
after 30 days from its promulgation and, insofar as the Solicitor
General is concerned, that period is counted from the date of
his receipt of the copy of the decision (Republic v. Court of First
Instance of Albay, 60 SCRA 195 [1974]).
Section 1 of R.A. No. 530 provides that no decision granting
citizenship in naturalization proceedings shall be executory until
after two years from its promulgation in order to be able to
observe if: (1) the applicant has left the country; (2) the
applicant has dedicated himself continuously to a lawful calling
or profession; (3) the applicant has not been convicted of any
offense or violation of government promulgated rules; and (4)
the applicant has committed any act prejudicial to the interest
of the country or contrary to government announced policies.
Even discounting the provisions of R.A. No. 530, the courts
cannot implement any decision granting the petition for
naturalization before its finality.
G.R. No. 105715
In view of the finding in G.R. No. 104654 that private
respondent is not yet a Filipino citizen, we have to grant the
petition in G.R. No. 105715 after treating it as a petition for
certiorari instead of a petition for mandamus. Said petition
assails the en banc resolution of the COMELEC, dismissing
SPC Case No. 92-273, which in turn is a petition to annul
private respondents proclamation on three grounds: 1) that the
proceedings and composition of the Provincial Board of
Canvassers were not in accordance with law; 2) that private
respondent is an alien, whose grant of Filipino citizenship is
being questioned by the State in G.R. No. 104654; and 3) that
private respondent is not a duly registered voter. The
COMELEC dismissed the petition on the grounds that it was
filed outside the three-day period for questioning the
proceedings
and composition of the Provincial Board of Canvassers under
Section 19 of R.A. No. 7166.
The COMELEC failed to resolve the more serious issue the
disqualification of private respondent to be proclaimed
Governor on grounds of lack of Filipino citizenship. In this
aspect, the petition is one for quo warranto. In Frivaldo v.
Commission on Elections, 174 SCRA 245 (1989), we held that
a petition for quo warranto, questioning the respondents title
and seeking to prevent him from holding office as Governor for
alienage, is not covered by the ten-day period for appeal
prescribed in Section 253 of the Omnibus Election Code.
Furthermore, we explained that "qualifications for public office
are continuing requirements and must be possessed not only at
the time of appointment or election or assumption of office but
during the officers entire tenure; once any of the required
qualification is lost, his title may be seasonably challenged."
Petitioners argument, that to unseat him will frustrate the will of
the electorate, is untenable. Both the Local Government Code
and the Constitution require that only Filipino citizens can run
and be elected to public office. We can only surmise that the
electorate, at the time they voted for private respondent, was of
the mistaken belief that he had legally reacquired Filipino
citizenship.
Petitioner in G.R. No. 105715, prays that the votes cast in favor
of private respondent be considered stray and that he, being
the candidate obtaining the second highest number of votes, be
declared winner. In Labo, Jr. v. COMELEC, 176 SCRA 1
(1989), we ruled that where the candidate who obtained the
highest number of votes is later declared to be disqualified to
hold the office to which he was elected, the candidate who
garnered the second highest number of votes is not entitled to
be declared winner (See also Geronimo v. Ramos, 136 SCRA
435 [1985]; Topacio v. Paredes, 23 Phil. 238 [1912]).
G.R. No. 105735
In view of the discussions of G.R. No. 104654 and G.R. No.
105715, we find the petition in G.R. No. 105735 moot and
academic.
WHEREFORE, the petitions in G.R. No. 104654 and G.R. No.
105715 are both GRANTED while the petition in G.R. No.
105735 is DISMISSED. Private respondent is declared NOT a
citizen of the Philippines and therefore DISQUALIFIED from
continuing to serve as GOVERNOR of the Province of
Sorsogon. He is ordered to VACATE his office and to
SURRENDER the same to the Vice-Governor of the Province
of Sorsogon once this decision becomes final and executory.
No pronouncement as to costs.
SO ORDERED.