CODILLA VS. DE VENECIA, G.R. No. 150605.

December 10, 2002

PUNO, J.:

In a democracy, the first self-evident principle is that he who has been rejected by the people cannot
represent the people. Respondent Ma. Victoria L. Locsin lost to petitioner Eufrocino M. Codilla, Sr. by
17,903 votes in the May 14, 2001 elections as Representative of the 4 th legislative district of Leyte. The
most sophisticated legal alchemy cannot justify her insistence that she should continue governing the
people of Leyte against their will. The enforcement of the sovereign will of the people is not subject to
the discretion of any official of the land.
This is a Petition for Mandamus and Quo Warranto directed against respondents Speaker Jose De
Venecia and Secretary-General Roberto P. Nazareno of the House of Representatives to compel them to
implement the decision of the Commission on Elections en banc by (a) administering the oath of office
to petitioner as the duly-elected Representative of the 4th legislative district of Leyte, and (b) registering
the name of the petitioner in the Roll of Members of the House of Representatives, and against respondent
Ma. Victoria L. Locsin for usurping, intruding into, and unlawfully holding and exercising the said public
office on the basis of a void proclamation.
The facts are uncontroverted. Petitioner and respondent Locsin were candidates for the position of
Representative of the 4th legislative district of Leyte during the May 14, 2001 elections. At that time,
petitioner was the Mayor of Ormoc City while respondent Locsin was the sitting Representative of the
4th legislative district of Leyte. On May 8, 2001, one Josephine de la Cruz, a registered voter of Kananga,
Leyte, filed directly with the COMELEC main office a Petition for Disqualification[1] against the
petitioner for indirectly soliciting votes from the registered voters of Kananga and Matag-ob, Leyte, in
violation of Section 68 (a) of the Omnibus Election Code. It was alleged that the petitioner used the
equipments and vehicles owned by the City Government of Ormoc to extract, haul and distribute gravel
and sand to the residents of Kananga and Matag-ob, Leyte, for the purpose of inducing, influencing or
corrupting them to vote for him. Attached to the petition are the (a) Affidavits of Basilio Bates,[2] Danilo
D. Maglasang,[3] Cesar A. Laurente;[4] (b) Joint Affidavit of Agripino C. Alferez and Rogelio T.
Salvera;[5] (c) Extract Records from the Police Blotter executed by Police Superintendent Elson G.
Pecho;[6] and (d) Photographs showing government dump trucks, haulers and surfacers and portions of
public roads allegedly filled-in and surfaced through the intercession of the respondent.[7] The case was
docketed as SPA No. 01-208 and assigned to the COMELECs Second Division.
On May 10, 2001, the COMELEC Second Division issued an Order delegating the hearing and
reception of evidence on the disqualification case to the Office of the Regional Director of Region
VIII.[8] On May 11, 2001, the COMELEC Second Division sent a telegram informing the petitioner that
a disqualification case was filed against him and that the petition was remanded to the Regional Election
Director for investigation.[9]
At the time of the elections on May 14, 2001, the Regional Election Director had yet to hear the
disqualification case. Consequently, petitioner was included in the list of candidates for district
representative and was voted for. The initial results showed that petitioner was the winning candidate.
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 On May 16, 2001, before the counting could be finished, respondent Locsin joined as intervenor in
SPA No. 128 and filed a Most Urgent Motion to Suspend Proclamation of Respondent [herein
petitioner] with the COMELEC Second Division.[10] Respondent Locsin alleged that the evidence on
record against respondent is very strong and unless rebutted remains. She urged the Commission to set
the hearing of the disqualification case and prayed for the suspension of the proclamation of the
respondent so as not to render the present disqualification case moot and academic. A copy of the
Motion was allegedly served on petitioner by registered mail but no registry receipt was attached
thereto.[11]
On May 18, 2001, respondent Locsin filed a Second Most Urgent Motion to Suspend
Proclamation of Respondent stating there is clear and convincing evidence showing that the respondent
is undoubtedly guilty of the charges against him and this remains unrebutted by the respondent. A copy
of the Motion was sent to the petitioner and the corresponding registry receipt was attached to the
pleading.[12] The records, however, do not show the date the petitioner received the motion.
On the same day, May 18, 2001, the COMELEC Second Division issued an Ex-Parte
Order[13] directing the Provincial Board of Canvassers of Leyte to suspend the proclamation of petitioner
in case he obtains the highest number of votes by reason of the seriousness of the allegations in the
petition for disqualification.[14] It also directed the Regional Election Director to speed up the reception
of evidence and to forward immediately the complete records together with its recommendation to the
Office of the Clerk of the Commission.[15] As a result, petitioner was not proclaimed as winner even
though the final election results showed that he garnered 71,350 votes as against respondent Locsins
53,447 votes.[16]
At the time that the COMELEC Second Division issued its Order suspending his proclamation, the
petitioner has yet to be summoned to answer the petition for disqualification. Neither has said petition
been set for hearing. It was only on May 24, 2001 that petitioner was able to file an Answer to the petition
for his disqualification with the Regional Election Director, alleging that: (a) he has not received the
summons together with the copy of the petition; (b) he became aware of the matter only by virtue of the
telegram sent by the COMELEC Second Division informing him that a petition was filed against him
and that the Regional Election Director was directed to investigate and receive evidence therewith; and
(c) he obtained a copy of the petition from the COMELEC Regional Office No. 8 at his own
instance.[17] Petitioner further alleged that the maintenance, repair and rehabilitation of barangay roads
in the municipalities of Matag-ob and Kananga were undertaken without his authority, participation or
directive as City Mayor of Ormoc. He attached in his Answer the following: (a) Affidavit of Alex B.
Borinaga;[18](b) Copy of the Excerpt from the Minutes of the Regular Session of Barangay
Monterico;[19] (c) Affidavit of Wilfredo A. Fiel;[20] (d) Supplemental Affidavit of Wilfredo A.
Fiel;[21] and (e) Affidavit of Arnel Y. Padayao.[22]
On May 25, 2001, petitioner filed a Motion to Lift Order of Suspension,[23] alleging that (a) he did
not receive a copy of the Motion to Suspend his Proclamation and hence, was denied the right to rebut
and refute the allegations in the Motion; (b) that he did not receive a copy of the summons on the petition
for disqualification and after personally obtaining a copy of the petition, filed the requisite answer only
on May 24, 2001; and (c) that he received the telegraph Order of the COMELEC Second Division
suspending his proclamation only on May 22, 2001. He attached documentary evidence in support of his
Motion to Lift the Suspension of his proclamation, and requested the setting of a hearing on his
Motion.[24]
On May 30, 2001, an oral argument was conducted on the petitioners Motion and the parties were
ordered to submit their respective memoranda.[25] On June 4, 2001, petitioner submitted his
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Memorandum[26] in support of his Motion assailing the suspension of his proclamation on the grounds
that: (a) he was not afforded due process; (b) the order has no legal and factual basis; and (c) evidence
of his guilt is patently inexistent for the purpose of suspending his proclamation. He prayed that his
proclamation as winning congressional candidate be expediently made, even while the disqualification
case against him continue upon due notice and hearing. He attached the following additional evidence in
his Memorandum: (a) Copy of certification issued by PNP Senior Inspector Benjamin T. Gorre; [27] (b)
Certification issued by Elena S. Aviles, City Budget Officer;[28] (c) Copy of certification issued by
Wilfredo A. Fiel, City Engineer of Ormoc;[29] (d) Joint Affidavit of Antonio Patenio and Pepito
Restituto;[30] and (e) Affidavits of Demetrio Brion,[31] Igmedio Rita[32] and Gerardo
Monteza.[33] Respondent Locsins memorandum also contained additional affidavits of his witnesses.[34]
Petitioners Motion to Lift the Order of Suspension, however, was not resolved. Instead, on June
14, 2001, the COMELEC Second Division promulgated its Resolution[35] in SPA No. 01-208 which
found the petitioner guilty of indirect solicitation of votes and ordered his disqualification. It directed
the immediate proclamation of the candidate who garnered the highest number of votes xxx. A
copy of said Resolution was sent by fax to the counsel of petitioner in Cebu City in the afternoon of the
following day.[36]
By virtue of the said Resolution, the votes cast for petitioner, totaling 71,350, were declared stray
even before said Resolution could gain finality. On June 15, 2001, respondent Locsin was proclaimed
as the duly elected Representative of the 4th legislative district of Leyte by the Provincial Board of
Canvassers of Leyte. It issued a Certificate of Canvass of Votes and Proclamation of the Winning
Candidates for Member of the House of Representatives stating that MA. VICTORIA LARRAZABAL
LOCSIN obtained a total of FIFTY THREE THOUSAND FOUR HUNDRED FORTY SEVEN (53,447)
votes representing the highest number of votes legally cast in the legislative district for said
office.[37] Respondent Locsin took her oath of office on June 18, 2001 and assumed office on June
30, 2001.
On June 20, 2001, petitioner seasonably filed with the COMELEC en banc a Motion for
Reconsideration[38] from the June 14, 2001 Resolution of the COMELEC Second Division which
ordered his disqualification, as well as an Addendum to the Motion for Reconsideration.[39] Petitioner
alleged in his Motion for Reconsideration that the COMELEC Second Division erred: (1) in disqualifying
petitioner on the basis solely of the dubious declaration of the witnesses for respondent Locsin; (2) in
adopting in toto the allegations of the witnesses for respondent Locsin; and (3) in promulgating the
resolution in violation of its own rules of procedure and in directing therein the immediate proclamation
of the second highest vote getter. Respondent Locsin and her co-petitioner in SPA No. 01-208 filed a
joint Opposition to the Motion for Reconsideration.[40]
On June 21, 2001, petitioner filed with the COMELEC en banc a Petition for Declaration of Nullity
of Proclamation,[41] docketed as SPC No. 01-324, assailing the validity of the proclamation of
respondent Locsin who garnered only the second highest number of votes. Respondent Locsin filed her
Answer alleging that: (1) the Commission lost jurisdiction to hear and decide the case because of the
proclamation of Locsin and that any question on the election, returns, and qualification of Locsin can
only be taken cognizance of by the House of Representatives Electoral Tribunal (HRET); (2) the case
should be filed and heard in the first instance by a Division of the Commission and not directly by the
Commission en banc; and (3) the proclamation of Locsin was valid because she received the highest
number of valid votes cast, the votes of Codilla being stray.
On June 28, 2001, petitioner filed an Urgent Manifestation[42] stating that he was deprived of a fair
hearing on the disqualification case because while the documentary evidence adduced in his
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Memorandum was in support of his Motion for the lifting of the suspension of his proclamation,
the COMELEC Second Division instead ruled on the main disqualification case. In consonance with
his prayer that a full-dress hearing be conducted on the disqualification case, he submitted Affidavits of
additional witnesses[43] which he claims would refute and substantially belie the allegations of
petitioners/intervenors witnesses. A Reply,[44] Rejoinder[45] and Sur-Rejoinder[46] were respectively filed
by the parties. Consequently, the motion for reconsideration in SPA No. 01-208 and the petition for
declaration of nullity in SPC No. 01-324 were submitted for resolution.
From the records, it appears that initially, a Resolution penned by Commissioner Rufino S.B. Javier,
dated July 24, 2001, was submitted to the Office of the Chairman, dismissing the petition for declaration
of nullity for lack of jurisdiction and denying the motion for reconsideration filed by petitioner
Codilla.[47] Commissioners Florentino A. Tuason, Jr. and Resurreccion Z. Borra submitted their
respective dissenting opinions[48] to the Javier resolution. It bears emphasis that Commissioner Tuason,
Jr. was the ponente of the Resolution of the COMELEC Second Division which ordered the
disqualification of petitioner but after considering the additional evidence presented by the latter, he
concluded that the totality of the evidence was clearly in petitioners favor. Equally worth mentioning is
the fact that Commissioner Ralph C. Lantion, who was the Presiding Commissioner of the Second
Division, also dissented and voted to grant Codillas motion for reconsideration on the ground that [T]he
people of Leyte have spoken and I respect the electorates will. x x x. [49]
On August 29, 2001, then COMELEC Chairman Alfredo L. Benipayo issued a Vote and Opinion
and Summary of Votes reversing the resolution of the Second Division and declaring the
proclamation of respondent Locsin as null and void. The dispositive portion reads:
JUDGMENT
WHEREFORE, in view of all the foregoing considerations, I concur with Commissioner Resurreccion
Z. Borra, Commissioner Florentino A. Tuason, Jr. and Commissioner Ralph C. Lantion, in SPA No.
01-208, to GRANT the motion for reconsideration and to REVERSE the resolution of the Commission
(Second Division) promulgated on June 1, 2001, disqualifying Codilla; and subsequently, in SPC No.
01-324, to GRANT the petition of Eufrocino M. Codilla, Sr., and declare as null and void the
proclamation of losing candidate Locsin.
Accordingly:
1. On the Motion for Reconsideration of the disqualification resolution against Codilla, promulgated by
the Commission (Second Division) on June 14, 2001 (SPA No. 01-208), I vote:
(a) to GRANT the Motion for Reconsideration of respondent-movant Eufrocino M.
Codilla, Sr., and to REVERSE the Resolution of the Commission (Second Division)
promulgated on June 14, 2001, for insufficiency of evidence;
(b) to lift the order of suspension of proclamation of petitioner Codilla, issued by the
Commission (Second Division) on May 18, 2001, having been issued without
hearing and without any finding that the evidence of guilt of petitioner Codilla is
strong and, thus, null and void;
(c) to nullify the order contained in the Resolution of the Commission (Second
Division) promulgated on June 14, 2001, for (t)he immediate proclamation of the
candidate who garnered the highest number of votes, to the exclusion of respondent
and the concurrent order for the Provincial Board of Canvasser (sic) of Leyte to
immediately reconvene and thereafter proclaim forthwith the candidate who
obtained the highest number of votes counting out the Respondent the same being

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 violative of election laws, established jurisprudence, and resolutions of the
Commission;
(d) to nullify the ruling contained in the Resolution of the Commission (Second
Division) promulgated o June 14, 2001, that the votes of respondent Codilla
are considered stray and invalid said ruling being issued on the basis of an
inapplicable decision, and contrary to established jurisprudence;
(e) to order the Provincial Board of Canvassers of Leyte, upon the finality of this
resolution, to reconvene and proclaim petitioner Codilla as the winning candidate
for Representative of the Fourth Legislative district of Leyte to comply with its
ministerial duty to proclaim the candidate who garnered the highest number of votes
in the elections for that position; and
(f) to order intervenor-oppositor Locsin, upon the finality of this resolution, to vacate
the office of Representative of the House of Representatives representing the Fourth
legislative district of Leyte and, for this purpose, to inform the House of
Representatives through the Honorable Speaker of this resolution for its attention
and guidance; and
2. On the petition for Declaration of Nullity of proclamation of respondent Ma. Victoria L. Locsin
(SPC No. 01-324), I vote:
(a) to GRANT the petition of Eufrocino M. Codilla, Sr., and declare as null and void
the proclamation of losing candidate Locsin, the proclamation being violative of
election laws, established jurisprudence, and resolutions of the Commission on
Elections;
(b) to lift the order of suspension of proclamation of petitioner Codilla, issued by the
Commission (Second Division) on May 18, 2001, in SPA No. 01-208, having been
issued without hearing and without any finding that the evidence of guilt of
petitioner Codilla is strong and, thus, null and void;
(c) to nullify the order contained in the Resolution of the Commission (Second
Division) promulgated on June 14, 2001, in SPA No. 01-208, for (t)he immediate
proclamation of the candidate who garnered the highest number of votes, to the
exclusion of respondent and the concurrent order for the provincial Board of
Canvasser (sic) of Leyte to immediately reconvene and thereafter proclaim
forthwith the candidate who obtained the highest number of votes counting out the
Respondent the same being violative of election laws, established jurisprudence,
and resolutions of the Commission;
(d) to nullify the ruling contained in the Resolution of the Commission (Second
Division) promulgated on June 14, 2001, in SPA No. 01-208, that the votes of
respondent Codilla are considered stray and invalid said ruling being issued on the
basis of an inapplicable decision, and contrary to established jurisprudence;
(e) to order the provincial Board of Canvassers of Leyte, upon the finality of this
resolution, to reconvene and proclaim petitioner Codilla as the winning candidate
for Representative of the Fourth legislative district of Leyte he (sic) having
garnered the highest number of votes in the elections for the position; and

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 (f) to order respondent Locsin, upon the finality of this resolution, to vacate the office
of Representative of the House of Representatives representing the Fourth
Legislative district of Leyte and, for this purpose, to inform the House of
Representatives through the Honorable Speaker of this resolution for its attention
and guidance.
Summary of Votes
Considering the FOUR (4) VOTES of the Chairman and Commissioners Resurreccion Z. Borra,
Florentino A. Tuason, Jr., and Ralph C. Lantion, to grant the Motion for Reconsideration of Codilla
and reverse the disqualification Resolution of the Commission (Second Division) in SPA No. 01-208,
promulgated on June 14, 2001, and as an inevitable consequence, in voting to grant the petition for
declaration of nullity of the proclamation of Ma. Victoria L. Locsin in SPC No. 01-324, the
verdict/opinion of the Chairman and the three (3) Commissioners taken together now stands, as it is,
the MAJORITY DECISION of the Commission En Banc in both cases; and the Resolution submitted
by three (3) Commissioners, namely, Commissioner Rufino S.B. Javier, Commissioner Luzviminda G.
Tancangco, and Commissioner Mehol K. Sadain, is considered, as it is, the MINORITY DECISION of
the Commission En Banc in both cases.
The MAJORTIY DECISION was arrived at after proper consultation with those who joined the
majority. The Chairman and the three (3) Commissioners comprising the majority decided that no one
will be assigned to write a Majority Decision. Instead, each one will write his own separate
opinion. Commissioners Borra, Tuason, Jr. and the undersigned Chairman submitted separate
opinions. Commissioner Lantion wrote an explanation on his vote.[50]
The aforequoted judgment was adopted in a Vote of Adoption signed by Commissioners Ralph C.
Lantion, Resurreccion Z. Borra and Florentino A. Tuason, Jr.[51]
Respondent Locsin did not appeal from this decision annulling her proclamation. Instead, she
filed a Comment and Manifestation[52] with the COMELEC en banc questioning the procedure and the
manner by which the decision was issued. In addition, respondent Locsin requested and was issued an
opinion by House of Representatives Executive Director and Chief Legal Counsel Leonardo B. Palicte
III declaring that the COMELEC has no jurisdiction to nullify the proclamation of respondent Locsin
after she had taken her oath and assumed office since it is the HRET which is the sole judge of election,
returns and qualifications of Members of the House.[53] Relying on this opinion, respondent Locsin
submitted a written privileged speech to the House during its regular session on September 4, 2001,
where she declared that she will not only disregard but will openly defy and disobey the COMELEC en
banc resolution ordering her to vacate her position.[54]
On September 6, 2001, the COMELEC en banc issued an Order[55] constituting the members of the
Provincial Board of Canvassers of Leyte to implement the aforesaid decision. It likewise ordered the
Board to reconvene and proclaim the candidate who obtained the highest number of votes in the district,
as the duly-elected Representative of the Fourth Legislative district of Leyte, and accordingly issue a
Certificate of Canvass and Proclamation of Winning Candidate for Member of the House of
Representatives x x x, based on the city/municipal certificates of canvass submitted beforehand to the
previous Provincial Board of Canvassers of Leyte x x x.
On September 12, 2001, petitioner Codilla was proclaimed by the Provincial Board of
Canvassers as the duly-elected Representative of the 4th legislative district of Leyte, having obtained
a total of 71,350 votes representing the highest number of votes cast in the district. [56] On the same day,
petitioner took his oath of office before Executive Judge Fortunito L. Madrona of the Regional Trial
Court of Ormoc City.[57]
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 On September 14, 2001, petitioner wrote the House of Representatives, thru respondent Speaker De
Venecia, informing the House of the August 29, 2001 COMELEC en banc resolution annulling the
proclamation of respondent Locsin, and proclaiming him as the duly-elected Representative of the
4th legislative district of Leyte.[58] Petitioner also served notice that I am assuming the duties and
responsibilities as Representative of the fourth legislative district of Leyte to which position I have been
lawfully elected and proclaimed. On behalf of my constituents, I therefore expect that all rights and
privileges intended for the position of Representative of the fourth legislative district of Leyte be
accorded to me, including all physical facilities and staff support. On the basis of this letter, a
Memorandum[59] dated October 8, 2001 was issued by Legal Affairs Deputy Secretary-General
Gaudencio A. Mendoza, Jr., for Speaker De Venecia, stating that there is no legal obstacle to complying
with the duly promulgated and now final and executory COMELEC Decision of August 29, 2001 x x x.
These notwithstanding, and despite receipt by the House of Representatives of a copy of the
COMELEC en banc resolution on September 20, 2001,[60] no action was taken by the House on the letter-
appeal of petitioner. Hence, petitioner sought the assistance of his party, LAKAS-NUCD-UMDP, which
sent a letter[61] addressed to respondent Speaker De Venecia, dated October 25, 2001, and signed by Party
President Teofisto T. Guingona, Jr., Secretary-General Heherson T. Alvarez, and Region VIII Party
Chairman Sergio Antonio F. Apostol, requesting the House of Representatives to act decisively on the
matter in order that petitioner can avail of whatever remedy is available should their action remain
unfavorable or otherwise undecisive.
In response, Speaker De Venecia sent a letter[62] dated October 30, 2001, stating that:
We recognize the finality of the COMELEC decision and we are inclined to sustain it. However, Rep.
Locsin has officially notified the HOUSE in her privilege speech, inserted in the HOUSE Journal dated
September 4, 2001, that she shall openly defy and disobey the COMELEC ruling. This ultimately
means that implementing the decision would result in the spectacle of having two (2) legislators
occupying the same congressional seat, a legal situation, the only consideration, that effectively deters
the HOUSEs liberty to take action.
In this light, the accepted wisdom is that the implementation of the COMELEC decision is a
matter that can be best, and with finality, adjudicated by the Supreme Court, which, hopefully,
shall act on it most expeditiously. (emphases supplied)
Hence, the present petition for mandamus and quo warranto.
Petitioner submits that by virtue of the resolution of the COMELEC en banc which has become final
and executory for failure of respondent Locsin to appeal therefrom, it has become the ministerial duty:
(1) of the Speaker of the House of Representatives, as its Administrative Head and Presiding Officer, to
implement the said resolution of the COMELEC en banc by installing him as the duly-elected
Representative of the 4th legislative district of Leyte; and (2) of the Secretary-General, as official
custodian of the records of the House, to formally register his name in the Roll of Members of the House
and delete the name of respondent Locsin therefrom. Petitioner further contends that respondent Locsin
has been usurping and unlawfully holding the public office of Representative of the 4th legislative district
of Leyte considering that her premature proclamation has been declared null and void by the
COMELEC en banc. He alleges that the action or inaction of public respondents has deprived him of his
lawful right to assume the office of Representative of the 4th legislative district of Leyte.
In his Comment,[63] public respondent Speaker De Venecia alleged that mandamus will not lie to
compel the implementation of the COMELEC decision which is not merely a ministerial duty but one
which requires the exercise of discretion by the Speaker of the House considering that: (1) it affects the

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membership of the House; and (2) there is nothing in the Rules of the House of Representatives which
imposes a duty on the House Speaker to implement a COMELEC decision that unseats an incumbent
House member.
In his Comment,[64] public respondent Secretary-General Nazareno alleged that in reading the name
of respondent Locsin during the roll call, and in allowing her to take her oath before the Speaker-elect
and sit as Member of the House during the Joint Session of Congress, he was merely performing official
acts in compliance with the opinions[65] rendered by House of Representatives Chief Counsel and
Executive Director Leonardo C. Palicte III stating that the COMELEC has no jurisdiction to declare the
proclamation of respondent Locsin as null and void since it is the HRET which is the sole judge of all
election, returns and qualifications of Members of the House. He also contends that the determination of
who will sit as Member of the House of Representatives is not a ministerial function and cannot, thus, be
compelled by mandamus.
Respondent Locsin, in her Comment,[66] alleged that the Supreme Court has no original jurisdiction
over an action for quo warranto involving a member of the House of Representatives for under Section
17, Article VI of the Constitution it is the HRET which is the sole judge of all contests relating to the
election, returns and qualifications of Members of the House of Representatives. She likewise asserts
that this Court cannot issue the writ of mandamus against a co-equal legislative department without
grossly violating the principle of separation of powers. She contends that the act of recognizing who
should be seated as a bona fide member of the House of Representatives is not a ministerial function but
a legislative prerogative, the performance of which cannot be compelled by mandamus. Moreover, the
prayer for a writ of mandamus cannot be directed against the Speaker and Secretary-General because
they do not have the authority to enforce and implement the resolution of the COMELEC.
Additionally, respondent Locsin urges that the resolution of the COMELEC en banc is null and void
for lack of jurisdiction. First, it should have dismissed the case pending before it after her proclamation
and after she had taken her oath of office. Jurisdiction then was vested in the HRET to unseat and remove
a Member of the House of Representatives. Second, the petition for declaration of nullity is clearly a pre-
proclamation controversy and the COMELEC en banc has no original jurisdiction to hear and decide a
pre-proclamation controversy. It must first be heard by a COMELEC Division. Third, the questioned
decision is actually a hodge-podge decision because of the peculiar manner in which the COMELEC
disposed of the case.
Finally, respondent Locsin asserts that the matter of her qualification and eligibility has been
categorically affirmed by the HRET when it dismissed the quo warranto case filed against her, docketed
as HRET Case No. 01-043, entitled Paciano Travero vs. Ma. Victoria Locsin, on the ground that the
allegations stated therein are not proper grounds for a petition for quo warranto against a Member of the
House of Representatives under section 253 of the Omnibus Election Code and Rule 17 of the HRET
Rules, and that the petition was filed late.[67]
In his Reply,[68] petitioner asserts that the remedy of respondent Locsin from the COMELEC decision
was to file a petition for certiorari with the Supreme Court, not to seek an opinion from the Chief Legal
Counsel of the House of Representatives; that the HRET has no jurisdiction over a petition for declaration
of nullity of proclamation which is based not on ineligibility or disloyalty, but by reason that the
candidate proclaimed as winner did not obtain the highest number of votes; that the petition for
annulment of proclamation is a pre-proclamation controversy and, hence, falls within the exclusive
jurisdiction of the COMELEC pursuant to section 242 of B.P. Blg. 881[69] and section 3, Article IX (C)
of the Constitution; that respondent Speaker De Venecia himself recognizes the finality of the
COMELEC decision but has decided to refer the matter to the Supreme Court for adjudication; that the
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enforcement and implementation of a final decision of the COMELEC involves a ministerial act and
does not encroach on the legislative power of Congress; and that the power to determine who will sit as
Member of the House does not involve an exercise of legislative power but is vested in the sovereign
will of the electorate.
The core issues in this case are: (a) whether the proclamation of respondent Locsin by the COMELEC
Second Division is valid; (b) whether said proclamation divested the COMELEC en banc of jurisdiction
to review its validity; and (c) assuming the invalidity of said proclamation, whether it is the ministerial
duty of the public respondents to recognize petitioner Codilla, Sr. as the legally elected Representative
of the 4th legislative district of Leyte vice respondent Locsin.

I
Whether the proclamation of respondent Locsin is valid.

After carefully reviewing the records of this case, we find that the proclamation of respondent Locsin
is null and void for the following reasons:
First. The petitioner was denied due process during the entire proceedings leading to the
proclamation of respondent Locsin.
COMELEC Resolution Nos. 3402[70] sets the procedure for disqualification cases pursuant to section
68 of the Omnibus Election Code, viz:
C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF THE
OMNIBUS ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK OF
QUALIFICATIONS OR POSSESSING SAME GROUNDS FOR DISQUALIFICATION
(1) The verified petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election
Code and the verified petition to disqualify a candidate for lack of qualifications or
possessing same grounds for disqualification, may be filed any day after the last day for
filing of certificates of candidacy but not later than the date of proclamation.
(2) The petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code
shall be filed in ten (10) legible copies by any citizen of voting age, or duly registered
political party, organization or coalition of political parties against any candidate who in an
action or protest in which he is a party is declared by final decision of a competent court
guilty of, or found by the Commission of:
2.a having given money or other material consideration to influence, induce or corrupt the
voters or public officials performing electoral functions;
2.b having committed acts of terrorism to enhance his candidacy;
2.c having spent in his election campaign an amount in excess of that allowed by the
Omnibus Election Code;
2.d having solicited, received or made any contribution prohibited under Sections 89, 95,
96, 97 and 104 of the Omnibus Election Code;
2.e having violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc,
sub-paragraph 6 of the Omnibus Election Code, shall be disqualified from continuing
as a candidate, or if he has been elected, from holding the office.
xxxxxxxxx

9|Page
 (4) Upon payment of the filing fee of P1,000.00 and legal research fee of P20.00, the offices
concerned shall docket the petition and assign to it a docket number which must be
consecutive, according to the order of receipt and must bear the year and prefixed as SPA
with the corresponding initial of the name of the office, i.e. SPA (RED) No. C01-001; SPA
(PES) No. C01-001;
(5) Within three (3) days from filing of the petitions, the offices concerned shall issue
summons to the respondent candidate together with a copy of the petition and its enclosures,
if any;
(6) The respondent shall be given three (3) days from receipt of summons within which to file
his verified answer (not a motion to dismiss) to the petition in ten (10) legible copies,
serving a copy thereof upon the petitioner. Grounds for Motion to Dismiss may be raised as
an affirmative defense;
(7) The proceeding shall be summary in nature. In lieu of the testimonies, the parties shall
submit their affidavits or counter-affidavits and other documentary evidences including
their position paper;
(8) The hearing must be completed within ten (10) days from the date of the filing of the
answer. The hearing officer concerned shall submit to the Clerk of the Commission through
the fastest means of communication, his findings, reports and recommendations within five
(5) days from the completion of the hearing and reception of evidence together with the
complete records of the case;
(9) Upon receipt of the records of the case of the findings, reports and recommendation of the
hearing officer concerned, the Clerk of the Commission shall immediately docket the case
consecutively and calendar the same for raffle to a division;
(10) The division to whom the case is raffled, shall after consultation, assign the same to a
member who shall pen the decision, within five (5) days from the date of consultation.
Resolution No. 3402 clearly requires the COMELEC, through the Regional Election Director, to
issue summons to the respondent candidate together with a copy of the petition and its enclosures, if any,
within three (3) days from the filing of the petition for disqualification. Undoubtedly, this is to afford the
respondent candidate the opportunity to answer the allegations in the petition and hear his side. To ensure
compliance with this requirement, the COMELEC Rules of Procedure requires the return of the summons
together with the proof of service to the Clerk of Court of the COMELEC when service has been
completed, viz:
Rule 14. Summons
xxxxxxxxx
Section 5. Return.- When the service has been completed by personal service, the server shall give
notice thereof, by registered mail, to the protestant or his counsel and shall return the summons to the
Clerk of Court concerned who issued it, accompanied with the proof of service.
Section 6. Proof of Service.- Proof of service of summons shall be made in the manner provided for in
the Rules of Court in the Philippines.
Thereafter, hearings, to be completed within ten (10) days from the filing of the Answer, must be
conducted. The hearing officer is required to submit to the Clerk of the Commission his findings, reports
and recommendations within five (5) days from the completion of the hearing and reception of evidence
together with the complete records of the case.

10 | P a g e
 (a) Petitioner was not notified of the petition for his disqualification through the service of
summons nor of the Motions to suspend his proclamation.
The records of the case do not show that summons was served on the petitioner. They do not contain
a copy of the summons allegedly served on the petitioner and its corresponding proof of
service. Furthermore, private respondent never rebutted petitioners repeated assertion that he was not
properly notified of the petition for his disqualification because he never received summons.[71] Petitioner
claims that prior to receiving a telegraphed Order from the COMELEC Second Division on May 22,
2001, directing the District Board of Canvassers to suspend his proclamation, he was never summoned
nor furnished a copy of the petition for his disqualification. He was able to obtain a copy of the petition
and the May 22 Order of the COMELEC Second Division by personally going to the COMELEC
Regional Office on May 23, 2001. Thus, he was able to file his Answer to the disqualification case only
on May 24, 2001.
More, the proclamation of the petitioner was suspended in gross violation of section 72 of the
Omnibus Election Code which provides:
Sec. 72. Effects of disqualification cases and priority.- The Commission and the courts shall
give priority to cases of disqualification by reason of violation of this Act to the end that a final
decision shall be rendered not later than seven days before the election in which the
disqualification is sought.
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. Nevertheless, 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, his violation of the provisions of the preceding
sections shall not prevent his proclamation and assumption to office. (emphases supplied)
In the instant case, petitioner has not been disqualified by final judgment when the elections were
conducted on May 14, 2001. The Regional Election Director has yet to conduct hearing on the petition
for his disqualification. After the elections, petitioner was voted in office by a wide margin of 17,903.
On May 16, 2001, however, respondent Locsin filed a Most Urgent Motion for the suspension of
petitioners proclamation. The Most Urgent Motion contained a statement to the effect that a copy was
served to the petitioner through registered mail.The records reveal that no registry receipt was attached
to prove such service.[72] This violates COMELEC Rules of Procedure requiring notice and service of
the motion to all parties, viz:
Section 4. Notice.- Notice of a motion shall be served by the movant to all parties concerned, at least
three (3) days before the hearing thereof, together with a copy of the motion. For good cause shown,
the motion may be heard on shorter notice, especially on matters which the Commission or the
Division may dispose of on its own motion.
The notice shall be directed to the parties concerned and shall state the time and place of the hearing of
the motion.
Section 5. Proof of Service.- No motion shall be acted upon by the Commission without proof of
service of notice thereof, except when the Commission or a Division is satisfied that the rights of the
adverse party or parties are not affected.
Respondents Most Urgent Motion does not fall under the exceptions to notice and service of motions.
First, the suspension of proclamation of a winning candidate is not a matter which the COMELEC Second
Division can dispose of motu proprio. Section 6 of R.A. No. 6646[73] requires that the suspension must
be upon motion by the complainant or any intervenor, viz:

11 | P a g e
Section 6. Effect 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 (COMELEC)
shall continue with the trial or 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. (emphases supplied)
Second, the right of an adverse party, in this case, the petitioner, is clearly affected. Given the lack
of service of the Most Urgent Motion to the petitioner, said Motion is a mere scrap of paper.[74] It cannot
be acted upon by the COMELEC Second Division.
On May 18, 2001 at exactly 5:00 p.m.,[75] respondent Locsin filed a Second Most Urgent Motion for
the suspension of petitioners proclamation. Petitioner was served a copy of the Second Motion again by
registered mail. A registry receipt[76] was attached evidencing service of the Second Most Urgent Motion
to the petitioner but it does not appear when the petitioner received a copy thereof. That same day, the
COMELEC Second Division issued an Order suspending the proclamation of petitioner. Clearly, the
petitioner was not given any opportunity to contest the allegations contained in the petition for
disqualification. The Order was issued on the very same day the Second Most Urgent Motion was filed.
The petitioner could not have received the Second Most Urgent Motion, let alone answer the same on
time as he was served a copy thereof by registered mail.
Under section 6 of R.A. No. 6646, the COMELEC can suspend proclamation only when evidence of
the winning candidates guilt is strong. In the case at bar, the COMELEC Second Division did not make
any specific finding that evidence of petitioners guilt is strong. Its only basis in suspending the
proclamation of the petitioner is the seriousness of the allegations in the petition for disqualification.
Pertinent portion of the Order reads:
Without giving due course to the petition xxx the Commission (2nd Division), pursuant to Section 72 of
the Omnibus Election Code in relation to Section 6, Republic Act No. 6646 xxx and considering the
serious allegations in the petition, hereby directs the Provincial Board of Canvassers of Leyte to
suspend the proclamation of respondent, if winning, until further orders.[77] (emphases supplied)
We hold that absent any finding that the evidence on the guilt of the petitioner is strong, the
COMELEC Second Division gravely abused its power when it suspended his proclamation.
(b) The COMELEC Second Division did not give ample opportunity to the petitioner to
adduce evidence in support of his defense in the petition for his disqualification.
All throughout the proceeding, no hearing was conducted on the petition for disqualification in gross
violation of section 6 of R.A. No. 6646 which specifically enjoins the COMELEC to continue with the
trial or hearing of the action, inquiry, or protest. This is also in violation of COMELEC Resolution
No. 3402 requiring the Regional Election Director to complete the hearing and reception of
evidence within ten (10) days from the filing of the Answer, and to submit his findings, reports, and
recommendations within the five (5) days from completion of the hearing and the reception of evidence.
Petitioner filed a Motion to Lift the Order of Suspension of his proclamation on May 25, 2001.
Although an oral argument on this Motion was held, and the parties were allowed to file their respective
memoranda, the Motion was not acted upon. Instead, the COMELEC Second Division issued a
Resolution on the petition for disqualification against the petitioner. It was based on the following

12 | P a g e
evidence: (a) the affidavits attached to the Petition for Disqualification; (b) the affidavits attached to the
Answer; and (c) the respective memoranda of the parties.
On this score, it bears emphasis that the hearing for Motion to Lift the Order of Suspension cannot
be substituted for the hearing in the disqualification case. Although intrinsically linked, it is not to be
supposed that the evidence of the parties in the main disqualification case are the same as those in the
Motion to Lift the Order of Suspension. The parties may have other evidence which they may deem
proper to present only on the hearing for the disqualification case. Also, there may be evidence which
are unavailable during the hearing for the Motion to Lift the Order of Suspension but which may be
available during the hearing for the disqualification case.
In the case at bar, petitioner asserts that he submitted his Memorandum merely to support his Motion
to Lift the Order of Suspension. It was not intended to answer and refute the disqualification case against
him. This submission was sustained by the COMELEC en banc. Hence, the members of the
COMELEC en banc concluded, upon consideration of the additional affidavits attached in his Urgent
Manifestation, that the evidence to disqualify the petitioner was insufficient. More specifically,
the ponente of the challenged Resolution of the COMELEC Second Division held:
Indeed, I find from the records that the May 30, 2001 hearing of the COMELEC (Second Division)
concerns only the incident relating to the Motion to Lift Order of Suspension of Proclamation. It also
appears that the order for the submission of the parties respective memoranda was in lieu of the parties
oral argument on the motion. This would explain the fact that Codillas Memorandum refers mainly to
the validity of the issuance of the order of suspension of proclamation. There is, however, no record of
any hearing on the urgent motion for the suspension of proclamation. Indeed, it was only upon the
filing of the Urgent Manifestation by Codilla that the Members of the Commission (Second
Division) and other Members of the Commission en banc had the opportunity to consider
Codillas affidavits. This time, Codilla was able to present his side, thus, completing the
presentation of evidentiary documents from both sides.[78] (emphases supplied)
Indeed, careful reading of the petitioners Memorandum shows that he confined his arguments in
support of his Motion to Lift the Order of Suspension. In said Memorandum, petitioner raised the
following issues: (a) he was utterly deprived of procedural due process, and consequently, the order
suspending his proclamation is null and void; (b) the said order of suspension of proclamation has no
legal and factual basis; and (c) evidence of guilt on his part is patently inexistent for the purpose of
directing the suspension of his proclamation.[79] He urged the COMELEC Second Division to conduct a
full dress hearing on the main disqualification case should the suspension be lifted.[80]
(c) the Resolution of the COMELEC Second Division disqualifying the petitioner is not
based on substantial evidence.
The Resolution of the COMELEC Second Division cannot be considered to be based on substantial
evidence. It relied merely on affidavits of witnesses attached to the petition for disqualification. As
stressed, the COMELEC Second Division gave credence to the affidavits without hearing the affiants. In
reversing said Resolution, the COMELEC en banc correctly observed:
Lacking evidence of Codilla, the Commission (Second Division) made its decisions based mainly on
the allegation of the petitioner and the supporting affidavits. With this lopsided evidence at hand, the
result was predictable. The Commission (Second Division) had no choice. Codilla was disqualified.[81]
Worse, the Resolution of the COMELEC Second Division, even without the evidence coming from
the petitioner, failed to prove the gravamen of the offense for which he was charged.[82]

13 | P a g e
 Petitioner allegedly violated section 68 (a) of the Omnibus Election Code which reads:
Section 68. Disqualifications.- Any candidate who, in action or protest in which he is a party is
declared by final decision of a competent court guilty of, or found by the Commission of having (a)
given money or other material consideration to influence, induce or corrupt the voters or public
officials performing official functions, xxx shall be disqualified from continuing as candidate, or if he
has been elected, from holding office
To be disqualified under the above-quoted provision, the following elements must be proved: (a) the
candidate, personally or through his instructions, must have given money or other material consideration;
and (b) the act of giving money or other material consideration must be for the purpose of influencing,
inducing, or corrupting the voters or public officials performing electoral functions.
In the case at bar, the petition for disqualification alleged that (a) petitioner ordered the extraction,
hauling and distribution of gravel and sand, and (b) his purpose was to induce and influence the voters
of Kananga and Matag-ob, Leyte to vote for him. Pertinent portion of the petition reads:
[T]he respondent [herein petitioner], within the election period, took advantage of his current elective
position as City Mayor of Ormoc City by illegally and unlawfully using during the prohibited period,
public equipments and vehicles belonging to and owned by the City Government of Ormoc City in
extracting, hauling and distributing gravel and sand to the residents and voters of the Municipalities of
Kananga and Matag-ob Leyte, well within the territorial limits of the 4th Congressional District of
Leyte, which acts were executed without period, and clearly for the illicit purpose of unduly inducing
or directly corrupting various voters of Kananga and Matag-ob, within the 4th legislative district of
Leyte, for the precise purpose of inducing and influencing the voters/beneficiaries of Kananga and
Matag-ob, Leyte to cast their votes for said respondent.[83]
The affidavits relied upon by the COMELEC Second Division failed to prove these allegations. For
instance, Cesar A. Laurente merely stated that he saw three (3) ten-wheeler dump trucks and a Hyundai
Payloader with the markings Ormoc City Government extracting and hauling sand and gravel from the
riverbed adjacent to the property owned by the Codilla family.[84]
Agripino C. Alferez and Rogelio T. Sulvera in their Joint Affidavit merely stated that they saw white
trucks owned by the City Government of Ormoc dumping gravel and sand on the road of Purok 6, San
Vicente, Matag-ob, Leyte. A payloader then scattered the sand and gravel unloaded by the white
trucks.[85]
On the other hand, Danilo D. Maglasang, a temporary employee of the City Government of Ormoc
assigned to check and record the delivery of sand and gravel for the different barangays in Ormoc, stated
as follows:
3. That on April 20, 2001, I was ordered by Engr. Arnel Padayo, an employee of the City Engineering
Office, Ormoc City to go to Tagaytay, Kangga (sic), Leyte as that will be the source of the sand and
gravel. I inquired why we had to go to Kananga but Engr. Padayao said that its not a problem as it was
Mayor Eufrocino M. Codilla, Sr. who ordered this and the property is owned by the family of Mayor
Codilla. We were to deliver sand and gravel to whoever requests from Mayor Codilla.[86]
Similarly, the Affidavit of Basilio Bates cannot prove the offense charged against the petitioner. He
alleged that on April 18, 2001, a white truck with the marking City Government of Ormoc came to his
lot at Montebello, Kananga, Leyte and unloaded mixed sand and that the driver of the truck told him to
vote for Codilla as a (sic) congressman during election.[87] His statement is hearsay. He has no personal
knowledge of the supposed order of the petitioner to distribute gravel and sand for the purpose of
14 | P a g e
inducing the voters to vote for him. The same could be said about the affidavits of Randy T.
Merin,[88] Alfredo C. De la Pea,[89] Miguel P. Pandac,[90] Paquito Bregeldo, Cristeta Alferez , Glicerio
Rios,[91] Romulo Alkuino, Sr.,[92] Abner Casas,[93] Rita Trangia,[94] and Judith Erispe[95] attached to
respondent Locsins Memorandum on the Motion to Lift the Suspension of Proclamation.
Also valueless are the affidavits of other witnesses[96] of respondent Locsin, all similarly worded,
which alleged that the petitioner ordered the repair of the road in Purok 6, Barangay San Vicente, Matag-
ob, Leyte and the flattening of the area where the cockfights were to be held. These allegations are
extraneous to the charge in the petition for disqualification. More importantly, these allegations do not
constitute a ground to disqualify the petitioner based on section 68 of the Omnibus Election Code.
To be sure, the petition for disqualification also ascribed other election offenses against the
petitioner, particularly section 261 of the Omnibus Election Code, viz:
Section 261. Prohibited Acts.- The following shall be guilty of an election offense:
(a) Vote-buying and vote-selling.- (1) Any person who gives, offers or promises money or
anything of value, gives or promises any office or employment, franchise or grant, public or
private, or make or offers to make an expenditure, directly or indirectly, or cause an
expenditure to be made to any person, association, corporation, entity or community in order
to induce anyone or the public in general, to vote for or against any candidate or withhold his
vote in the election, or to vote for or against any aspirant for the nomination or choice of a
candidate in a convention or similar selection process of a political party.
xxxxxxxxx
(o) Use of public funds, money deposited in trust, equipment, facilities owned or controlled by
the government for an election campaign.- Any person who uses under any guise whatsoever
directly or indirectly, xxx (3) any equipment, vehicle, facility, apparatus, or paraphernalia
owned by the government or by its political subdivisions, agencies including government-
owned or controlled corporations, or by the Armed Forces of the Philippines for any election
campaign or for any partisan political activity x x x.
However, the jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated
in section 68 of the Omnibus Election Code. All other election offenses are beyond the ambit of
COMELEC jurisdiction.[97] They are criminal and not administrative in nature. Pursuant to sections 265
and 268 of the Omnibus Election Code, the power of the COMELEC is confined to the conduct of
preliminary investigation on the alleged election offenses for the purpose of prosecuting the alleged
offenders before the regular courts of justice, viz:
Section 265. Prosecution.- The Commission shall, through its duly authorized legal officers, have the
exclusive power to conduct preliminary investigation of all election offenses punishable under this
Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting
arms of the government: Provided, however, That in the event that the Commission fails to act on any
complaint within four months from his filing, the complainant may file the complaint with the office of
the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted.
xxxxxxxxx
Section 268. Jurisdiction.- The regional trial court shall have the exclusive original jurisdiction to try
and decide any criminal action or proceeding for violation of this Code, except those relating to the

15 | P a g e
offense of failure to register or failure to vote which shall be under the jurisdictions of metropolitan or
municipal trial courts. From the decision of the courts, appeal will lie as in other criminal cases.
The COMELEC Second Division grievously erred when it decided the disqualification case based
on section 261 (a) and (o), and not on section 68 of the Omnibus Election Code.
(d) Exclusion of the votes in favor of the petitioner and the proclamation of respondent
Locsin was done with undue haste.
The COMELEC Second Division ordered the exclusion of the votes cast in favor of the petitioner,
and the proclamation of the respondent Locsin, without affording the petitioner the opportunity to
challenge the same. In the morning of June 15, 2001, the Provincial Board of Canvassers convened, and
on the strength of the said Resolution excluding the votes received by the petitioner, certified that
respondent Locsin received the highest number of votes. On this basis, respondent Locsin was
proclaimed.
Records reveal that the petitioner received notice of the Resolution of the COMELEC Second
Division only through his counsel via a facsimile message in the afternoon of June 15, 2001[98] when
everything was already fait accompli. Undoubtedly, he was not able to contest the issuance of the
Certificate of Canvass and the proclamation of respondent Locsin. This is plain and simple denial of due
process.
The essence of due process is the opportunity to be heard. When a party is deprived of that basic
fairness, any decision by any tribunal in prejudice of his rights is void.
Second. The votes cast in favor of the petitioner cannot be considered stray and respondent
cannot be validly proclaimed on that basis.
The Resolution of the COMELEC Second Division in SPA No. 01-208 contains two dispositions:
(1) it ruled that the petitioner was disqualified as a candidate for the position of Congressman of the
Fourth District of Leyte; and (2) it ordered the immediate proclamation of the candidate who garnered
the highest number of votes, to the exclusion of the respondent [herein petitioner].
As previously stated, the disqualification of the petitioner is null and void for being violative of due
process and for want of substantial factual basis. Even assuming, however, that the petitioner was validly
disqualified, it is still improper for the COMELEC Second Division to order the immediate exclusion of
votes cast for the petitioner as stray, and on this basis, proclaim the respondent as having garnered the
next highest number of votes.
(a) The order of disqualification is not yet final, hence, the votes cast in favor of the
petitioner cannot be considered stray.
Section 6 of R.A. No. 6646 and section 72 of the Omnibus Election Code require a final judgment
before the election for the votes of a disqualified candidate to be considered stray.Hence, when a
candidate has not yet been disqualified by final judgment during the election day and was voted for, the
votes cast in his favor cannot be declared stray. To do so would amount to disenfranchising the electorate
in whom sovereignty resides.[99] For in voting for a candidate who has not been disqualified by final
judgment during the election day, the people voted for him bona fide, without any intention to misapply
their franchise, and in the honest belief that the candidate was then qualified to be the person to whom
they would entrust the exercise of the powers of government.[100]
This principle applies with greater force in the case at bar considering that the petitioner has not
been declared by final judgment to be disqualified not only before but even after the elections. The
16 | P a g e
Resolution of the COMELEC Second Division disqualifying the petitioner did not attain finality, and
hence, could not be executed, because of the timely filing of a Motion for Reconsideration. Section 13,
Rule 18 of the COMELEC Rules of Procedure on Finality of Decisions and Resolutions reads:
Sec. 13. Finality of Decisions or Resolutions.- (a) In ordinary actions, special proceedings, provisional
remedies and special reliefs, a decision or resolution of the Commission en banc shall become final and
executory after thirty (30) days from its promulgation.
(b) In Special Actions and Special Cases a decision or resolution of the Commission en banc shall
become final and executory after five (5) days in Special Actions and Special Cases and after
fifteen (15) days in all other proceedings, following their promulgation.
(c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of a
Division shall become final and executory after the lapse of five (5) days in Special Actions
and Special Cases and after fifteen (15) days in all other actions or proceedings, following
its promulgation. (emphasis supplied)
In this wise, COMELEC Resolution No. 4116,[101] issued in relation to the finality of resolutions or
decisions in disqualification cases, provides:
This pertains to the finality of decisions or resolutions of the Commission en banc or division,
particularly on Special Actions (Disqualification Cases).
Special Action cases refer to the following:
(a) Petition to deny due course to a certificate of candidacy;
(b) Petition to declare a candidate as a nuisance candidate;
(c) Petition to disqualify a candidate; and
(d) Petition to postpone or suspend an election.
Considering the foregoing and in order to guide field officials on the finality of decisions or resolutions
on special action cases (disqualification cases) the Commission, RESOLVES, as it is hereby
RESOLVED, as follows:
(1) the decision or resolution of the En Banc of the Commission on disqualification cases shall
become final and executory after five (5) days from its promulgation unless restrained by
the Supreme Court;
(2) the decision or resolution of a Division on disqualification cases shall become final and
executory after the lapse of five (5) days unless a motion for reconsideration is seasonably
filed;
(3) where the ground for disqualification case is by reason of non-residence, citizenship,
violation of election laws and other analogous cases and on the day of the election the
resolution has not become final and executory the BEI shall tally and count the votes for
such disqualified candidate;
(4) the decision or resolution of the En Banc on nuisance candidates, particularly whether the
nuisance candidate has the same name as the bona fide candidate shall be immediately
executory;
(5) the decision or resolution of a DIVISION on nuisance candidate, particularly where the
nuisance candidate has the same name as the bona fide candidate shall be immediately
executory after the lapse of five (5) days unless a motion for reconsideration is seasonably
filed. In which case, the votes cast shall not be considered stray but shall be counted and
tallied for the bona fide candidate.
All resolutions, orders and rules inconsistent herewith are hereby modified or repealed.

17 | P a g e
 Considering the timely filing of a Motion for Reconsideration, the COMELEC Second Division
gravely abused its discretion in ordering the immediate disqualification of the petitioner and ordering the
exclusion of the votes cast in his favor. Section 2, Rule 19 of the COMELEC Rules of Procedure is very
clear that a timely Motion for Reconsideration shall suspend the execution or implementation of the
resolution, viz:
Section 2. Period for filing Motion for Reconsideration.- A motion to reconsider a decision, resolution,
order, or ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such
motion, if not pro forma, suspends the execution or implementation of the decision, resolution,
order or ruling. (emphases supplied)
(b) Respondent Locsin, as a mere second placer, cannot be proclaimed.
More brazen is the proclamation of respondent Locsin which violates the settled doctrine that the
candidate who obtains the second highest number of votes may not be proclaimed winner in case the
winning candidate is disqualified.[102] In every election, the peoples choice is the paramount
consideration and their expressed will must at all times be given effect. When the majority speaks and
elects into office a candidate by giving him the highest number of votes cast in the election for the office,
no one can be declared elected in his place.[103] In Domino v. COMELEC,[104] this Court ruled, viz:
It would be extremely repugnant to the basic concept of the constitutionally guaranteed right to
suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed winner and
imposed as representative of a constituency, the majority of which have positively declared through
their ballots that they do not choose him. To simplistically assume that the second placer would have
received that (sic) other votes would be to substitute our judgment for the mind of the voters. He could
not be considered the first among the qualified candidates because in a field which excludes the
qualified candidate, the conditions would have substantially changed.
xxxxxxxxx
The effect of a decision declaring a person ineligible to hold an office is only that the election fails
entirely, that the wreath of victory cannot be transferred from the disqualified winner to the repudiated
loser because the law then as now only authorizes a declaration in favor of the person who has obtained
a plurality of votes, and does not entitle the candidate receiving the next highest number of votes to be
declared elected. In such case, the electors have failed to make a choice and the election is a nullity. To
allow the defeated and repudiated candidate to take over the elective position despite his rejection by
the electorate is to disenfranchise the electorate without any fault on their part and to undermine the
importance and meaning of democracy and the peoples right to elect officials of their choice.[105]
Respondent Locsin proffers a distinction between a disqualification based on personal circumstances
such as age, residence or citizenship and disqualification based on election offenses. She contends that
the election of candidates later disqualified based on election offenses like those enumerated in section
68 of the Omnibus Election Code should be invalidated because they violate the very essence of suffrage
and as such, the votes cast in his favor should not be considered.[106]
This contention is without merit. In the recent case of Trinidad v. COMELEC,[107] this Court ruled
that the effect of a judgment disqualifying a candidate, after winning the election, based on personal
circumstances or section 68 of the Omnibus Election Code is the same: the second placer could not take
the place of the disqualified winner.

II
18 | P a g e
Whether the proclamation of respondent Locsin divested the COMELEC en banc of jurisdiction
to review its validity.

Respondent Locsin submits that the COMELEC en banc has no jurisdiction to annul her
proclamation. She maintains that the COMELEC en banc was been divested of jurisdiction to review the
validity of her proclamation because she has become a member of the House of Representatives. Thus,
she contends that the proper forum to question her membership to the House of Representatives is the
House of Representative Electoral Tribunal (HRET).
We find no merit in these contentions.
First. The validity of the respondents proclamation was a core issue in the Motion for
Reconsideration seasonably filed by the petitioner.
In his timely Motion for Reconsideration with the COMELEC en banc, petitioner argued that the
COMELEC Second Division erred thus:
(1) in disqualifying petitioner on the basis solely of the dubious declaration of the witnesses for
respondent Locsin;
(2) in adopting in toto the allegations of the witnesses for respondent Locsin; and
(3) in promulgating the resolution in violation of its own rules of procedure and in
directing therein the immediate proclamation of the second highest vote
getter.(emphases supplied)
In support of his third assignment of error, petitioner argued that the Second Divisions directive for
the immediate proclamation of the second highest vote-getter is premature considering that the
Resolution has yet to become final and executory.[108] Clearly, the validity of respondent Locsins
proclamation was made a central issue in the Motion for Reconsideration seasonably filed by the
petitioner. Without doubt, the COMELEC en banc has the jurisdiction to rule on the issue.
The fact that the Petition for Nullity of Proclamation was filed directly with the COMELEC en
banc is of no moment. Even without said Petition, the COMELEC en banc could still rule on the nullity
of respondents proclamation because it was properly raised in the Motion for Reconsideration.
Section 3, Article IX-C of the 1987 Constitution empowers the COMELEC en banc to review, on
motion for reconsideration, decisions or resolutions decided by a division, viz:
Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its
rules of procedure in order to expedite disposition of election cases, including pre-proclamation
controversies. All such election cases shall be heard and decided in division, provided that motions for
reconsideration of decision shall be decided by the Commission en banc.
Pursuant to this Constitutional mandate, the COMELEC Rules of Procedure provides:
Rule 19. Motions for Reconsideration.-
Section 1. Grounds for Motion for Reconsideration.- A motion for reconsideration may be filed on the
grounds that the evidence is insufficient to justify the decision, order or ruling, or that the said decision,
order or ruling is contrary to law.
Section 2. Period for filing Motion for Reconsideration.- A motion to reconsider a decision, resolution,
order, or ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such
motion, if not pro forma, suspends the execution or implementation of the decision, resolution,
order or ruling.
19 | P a g e
Section 3. Form and Contents of Motion for Reconsideration.- The motion shall be verified and shall
point out specifically the findings or conclusions of the decision, resolution, order or ruling which are
not supported by the evidence or which are contrary to law, making express reference to the testimonial
or documentary evidence or to the provisions of law alleged to be contrary to such findings or
resolutions.
Section 4. Effect of Motion for Reconsideration on Period to Appeal.- A motion to reconsider a
decision, resolution, order or ruling when not pro forma, suspends the running of the period to elevate
the matter to the Supreme Court.
Section 5. How Motion for Reconsideration Disposed Of.- Upon the filing of a motion to reconsider a
decision, resolution, order or ruling of a Division, the Clerk of Court concerned shall, within twenty-
four (24) hours from the filing thereof, notify the Presiding Commissioner. The latter shall within two
(2) days thereafter certify the case to the Commission en banc.
Section 6. Duty of the Clerk of Court of the Commission to set Motion for Hearing.- The Clerk of Court
concerned shall calendar the motion for reconsideration for the resolution of the Commission en
banc within ten (10) days from the certification thereof. (emphases supplied)
Since the petitioner seasonably filed a Motion for Reconsideration of the Order of the Second
Division suspending his proclamation and disqualifying him, the COMELEC en banc was not divested
of its jurisdiction to review the validity of the said Order of the Second Division. The said Order of the
Second Division was yet unenforceable as it has not attained finality; the timely filing of the motion for
reconsideration suspends its execution. It cannot, thus, be used as the basis for the assumption in office
of the respondent as the duly elected Representative of the 4th legislative district of Leyte.
Second. It is the House of Representatives Electoral Tribunal (HRET) which has no
jurisdiction in the instant case.
Respondent contends that having been proclaimed and having taken oath as representative of the
th
4 legislative district of Leyte, any question relative to her election and eligibility should be brought
before the HRET pursuant to section 17 of Article VI of the 1987 Constitution.[109]
We reject respondents contention.
(a) The issue on the validity of the Resolution of the COMELEC Second Division has not
yet been resolved by the COMELEC en banc.
To stress again, at the time of the proclamation of respondent Locsin, the validity of the Resolution
of the COMELEC Second Division was seasonably challenged by the petitioner in his Motion for
Reconsideration. The issue was still within the exclusive jurisdiction of the COMELEC en banc to
resolve. Hence, the HRET cannot assume jurisdiction over the matter.
In Puzon vs. Cua,[110] even the HRET ruled that the doctrinal ruling that once a proclamation has
been made and a candidate-elect has assumed office, it is this Tribunal that has jurisdiction over an
election contest involving members of the House of Representatives, could not have been immediately
applicable due to the issue regarding the validity of the very COMELEC pronouncements
themselves. This is because the HRET has no jurisdiction to review resolutions or decisions of the
COMELEC, whether issued by a division or en banc.
(b) The instant case does not involve the election and qualification of respondent Locsin.
Respondent Locsin maintains that the proper recourse of the petitioner is to file a petition for quo
warranto with the HRET.

20 | P a g e
 A petition for quo warranto may be filed only on the grounds of ineligibility and disloyalty to the
Republic of the Philippines.[111] In the case at bar, neither the eligibility of the respondent Locsin nor her
loyalty to the Republic of the Philippines is in question. There is no issue that she was qualified to run,
and if she won, to assume office.
A petition for quo warranto in the HRET is directed against one who has been duly elected and
proclaimed for having obtained the highest number of votes but whose eligibility is in question at the
time of such proclamation. It is evident that respondent Locsin cannot be the subject of quo
warranto proceeding in the HRET. She lost the elections to the petitioner by a wide margin. Her
proclamation was a patent nullity. Her premature assumption to office as Representative of the
4th legislative district of Leyte was void from the beginning. It is the height of absurdity for the
respondent, as a loser, to tell petitioner Codilla, Sr., the winner, to unseat her via a quo
warranto proceeding.

III
Whether it is the ministerial duty of the public respondents to
recognize petitioner Codilla, Sr. as the legally elected Representative
of the 4th legislative district of Leyte vice respondent Locsin.

Under Rule 65, section 3 of the 1997 Rules of Civil Procedure, any person may file a verified petition
for mandamus when any tribunal, corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or
station, or unlawfully excludes another from the use and enjoyment of a right or office to which such
other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of
law.[112] For a petition for mandamus to prosper, it must be shown that the subject of the petition for
mandamus is a ministerial act or duty, and not purely discretionary on the part of the board, officer or
person, and that the petitioner has a well-defined, clear and certain right to warrant the grant thereof.
The distinction between a ministerial and discretionary act is well delineated. A purely ministerial
act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner,
in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment
upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and
gives him the right to decide how or when the duty shall be performed, such duty is discretionary and
not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise
of official discretion or judgment.[113]
In the case at bar, the administration of oath and the registration of the petitioner in the Roll of
Members of the House of Representatives representing the 4th legislative district of Leyte is no longer a
matter of discretion on the part of the public respondents. The facts are settled and beyond dispute:
petitioner garnered 71,350 votes as against respondent Locsin who only got 53, 447 votes in the May 14,
2001 elections. The COMELEC Second Division initially ordered the proclamation of respondent
Locsin; on Motion for Reconsideration the COMELEC en banc set aside the order of its Second Division
and ordered the proclamation of the petitioner. The Decision of the COMELEC en banc has not been
challenged before this Court by respondent Locsin and said Decision has become final and executory.
In sum, the issue of who is the rightful Representative of the 4th legislative district of Leyte has been
finally settled by the COMELEC en banc, the constitutional body with jurisdiction on the matter. The

21 | P a g e
rule of law demands that its Decision be obeyed by all officials of the land. There is no alternative
to the rule of law except the reign of chaos and confusion.
IN VIEW WHEREOF, the Petition for Mandamus is granted. Public Speaker of the House of
Representatives shall administer the oath of petitioner EUFROCINO M. CODILLA, SR., as the duly-
elected Representative of the 4th legislative district of Leyte. Public respondent Secretary-General shall
likewise register the name of the petitioner in the Roll of Members of the House of Representatives after
he has taken his oath of office. This decision shall be immediately executory.
SO ORDERED.

GUIAO VS. COMELEC, G.R. No. L-68056 July 5, 1985

ALAMPAY, J.:

On July 24, 1984, a verified Petition for certiorari was filed with this Court by Petitioner Bren Z.
Guiao, seeking the review and reversal of the Resolution of the Respondent Commission on Elections
(COMELEC) issued en banc on July 18, 1984 in PPC Case No. 32-84 where the Commission en banc,
by a vote of 5 to 1, with Commissioner Ramon H. Felipe, Jr., dissenting, denied petitioner's motion for
declaration of nullity of the proclamation of respondent Aber Canlas as Assemblyman for Pampanga,
made by the Provincial Board of Canvassers of said province on May 17, 1984, in connection with the
May 14, 1984 elections, pending the hearing on appeal of the said PPC Case No. 32-84 before the
Commission en banc.

The antecedent facts of this case disclose that on May 14, 1984, at seven o'clock in the evening, the
Provincial Board of Canvassers met at the Conference Hall, Provincial Capitol in San Fernando,
Pampanga, to canvass the election returns from the voting centers in the province. The contending
political parties, the KBL, and the UNIDO, were duly represented in the said Board as the election
returns were being canvassed. By 11:30 o'clock in the evening of May 16, 1984, the canvass of all
election returns from all the voting centers of Pampanga had been completed without any objection
raised by anyone to any of the canvassed returns. Thereafter, the Board proceeded to tally the total
number of votes received by each candidate and the tabulation of the votes disclosed that the four
candidates who received the highest number of votes and won in the election for the Batasan were the
following:

Juanita L. Nepomuceno 246,231 votes

Egmidio L. Lingad 227,111 votes
Rafael L. Lazatin 211,288 votes
Aber P. Canlas 203,856 votes

Petitioner Bren Z. Guiao garnered fifth place with 195,583 votes.

22 | P a g e
After the canvass was completed, and only at about 12:50 A.M. of May 17, 1984, did petitioner submit
to the Board of Canvassers his written objections to the inclusion in the canvass of election returns
from approximately 31 various voting centers of different municipalities. Petitioner based his challenge
on the following grounds:

Incomplete, duress, intimidation falsified obviously manufactured, threats, coercion,

Comelec's copy used not authentic, statistically improbable, and persons in Saudi Arabia
were made to appear as if they had voted.

The belatedness of the submission of these written objections of the petitioner notwithstanding, the
Board of Canvassers nevertheless set the same for hearing at eleven thirty in the morning of that very
date, May 17, 1984. The Chairman of the Board of Canvassers, Atty. Manuel Lucero also sent to the
Commission on Elections a memorandum, stating and informing that the

Objections were raised after the completion of the canvass and requesting that the
Provincial Board of Canvassers in Pampanga be authorized to proclaim the winning
candidate based on the results of the completed canvass without prejudice to the outcome
of the hearing on the objections.

In a resolution dated May 17, 1984, the COMELEC granted the aforestated request of the Chairman of
the Provincial Board of Canvassers. The petitioner's objections were later dismissed by the Board of
Canvassers for failure to substantiate the same. It also appears that at said hearing, there was presented
to the Board the request of the petitioner, thru his counsel Atty. Suarez, that subpoena be issued to the
members of the Citizens Election Committee from various voting centers enumerated in the written
objections. Said request was denied by the Board on the grounds that said petitioner's counsel should
have been ready with his evidence to support his objections, the hearing being summary in nature and
also to preclude further delay in the proclamation of the winning candidates. (Minutes of the Meeting
of the Provincial Board of Canvassers held on May 17, 1984).

Thereafter, the proclamation of the winning candidates was finally agreed upon by the Board and at
6:00 P.M. of May 17, 1984, the Board proclaimed the winning candidates, which included the
respondent Aber P. Canlas, as among the Assemblymen-elect with 203,856 votes. The corresponding
certificate of canvass and proclamation of the candidates-elect was issued, duly signed by all the
members of the Board of Canvassers, including the representatives of the Dominant Party, UNIDO.

On May 18, 1984, in an urgent petition filed with the COMELEC, petitioner prayed that the Board of
Canvassers be restrained from further proceeding with the hearing in connection with the canvassing of
the results of the Batasan election in Pampanga and for the annulment of all proceedings held by said
Board on account of its denial of petitioner's motion to Identify, mark and introduce documentary
evidence said its refusal to issue "subpoenas to summon his witnesses for various municipalities." The
action of the Provincial Board is complained of by petitioner as constituting denial of his constitutional
right to present his evidence.

On May 22, 1984, another verified petition was filed with the COMELEC for the annulment of the
proclamation of respondent Aber P. Canlas, on the ground that such was made in violation of Section
54 of Batas Pambansa Blg. 697, and consequently, premature and with denial of petitioner's right to
due process.

23 | P a g e
The case for annullment of the proceedings of the Provincial Board of Canvassers and proclamation of
Aber Canlas was docketed in the COMELEC as Case No. PPC 32-84. It was heard by the First
Division of the COMELEC and was considered submitted for resolution after the submission of the
respective Memorandum of the contending parties.

In its resolution dated June 28, 1984, by a vote of 2 to 1, the First Division of the COMELEC
dismissed petitioner's suit but without prejudice to the filing by the latter of an election protest. Said
resolution was appealed by the petitioner to the COMELEC en banc.

At the hearing on July 18, 1984, before the COMELEC sitting en banc, of the appeal made by the
petitioner herein, the latter through his counsel, asked for a ruling from the Commission on his Motion
to Press Annulment of Premature Proclamation of Respondent Aber P. Canlas, dated July 13, 1984, and
filed with the Commission on July 14, 1984. Herein petitioner invoked the ruling of the Supreme Court
in the case of Javier vs. COMELEC, promulgated on June 14,1984, in G.R. No. 67594, wherein it was
stressed that where a proclamation has been issued before the expiration of the five-day period for
appeal, such proclamation due to its prematurity should be set aside. However, Respondent
Commission in open session, at said hearing of July 18, 1984, by a vote of 5 to 1, with Commissioner
Ramon H. Felipe, Jr. dissenting denied the aforestated motion of petitioner upon the consideration of
said Commission that the facts of the Javier vs. Pacificador case cited by petitioner are different from
the case at bar and, therefore, the rulings therein relied upon by petitioner are inapplicable to the
subject case.

Upon its denial of petitioner's Motion for Annulment, the Commission then ordered Appellant Guiao to
present evidence support of his appeal but as the latter's counsel was not ready to do so, and because
petitioner had asked time to elevate to the Supreme Court the denial by the Commission of his a
aforesaid Motion, continuation of the hearing of Petitioners appeal was reset by the COMELEC to, July
25, 1984, for the reception on said date of the evidence of both contending parties, unless a restraining
order is issued by the Supreme he Commission also gave advice in open session that if the scheduled
resumption of the hearing of July 25, 1984, petitioner-appellant Guiao would not be ready with his
evidence, it will consider the case before it as submitted for resolution.

On July 24, 1984, petitioner filed with this Court the instant Petition For certiorari with Prayer for the
Issuance of a Writ of Preliminary Injunction and/or Restraining Order, to enjoin the COMELEC from
proceeding with the hearing on July 25, 1984.

On July 25, 1984, a supplemental petition was filed with the Court by petitioner Guiao. He manifested
therein that at the hearing of his appeal under PPC No. 32-84 before the COMELEC on the same said
date, he had pointed out to the Commission sitting en banc that he had already filed the instant
certiorari proceedings before the Supreme Court which case was docketed as G.R. No. 68056; that he
had raised fundamental legal issued which petitioner claims to partake the character of a prejudicial
question necessitating the resolution thereof before a hearing on the merits of his appeal should be
made by the Commission; and that for petitioner to present his evidence to the COMELEC, may be
construed as a waiver or renunciation of the legal questions raised by him in the certiorari proceedings.
In his supplemental petition, petitioner Guiao assailed the denial by the Chairman of the Commission
of his verbal request for the deferment for forty-eight (48) hours of the said hearing of July 25, 1984, in
an order to enable him to obtain the restraining order from the Supreme Court, which he had applied
for. Petitioner bewailed not only the verbal denial of his Motion for Reconsideration of the
COMELEC's Order refusing deferment of the hearing but also the fact that the Chairman of the
24 | P a g e
COMELEC also considered the case as submitted on the merits and for resolution by the Commission
without evidence on the part of the petitioner.

This Court in its resolution promulgated on July 26, 1984, resolved among other things, to:

xxx xxx xxx

(b) SET the plea for the issuance of a temporary restraining order for hearing on Tuesday
July 31, 1984 at 11:00 A.M. Aquino, J., voted to dismiss the petition on the ground that
the Commission or, Elections' resolution of July 18, 1984, sought to be reviewed, is
interlocutory. For him, it is the decision to be rendered by respondent Commission as
announced by it at the hearing on July 25, that can be reviewed. Abad Santos and
Gutierrez, Jr., JJ., took no part.

As petitioner was unable to secure any restraining order from this tribunal, the COMELEC en banc, in
its sixty-page resolution promulgated on August 4, 1984 (Rollo, 163) by a vote of 6 to 1. with
Commissioner Ramon H. Felipe, Jr., dissenting, upheld the validity of the proclamation of Respondent
Aber Canlas and dismissed the petitioner's appeal to the Commission.

In this connection, the COMELEC in its said resolution stated among other things, the following:

Considering the attempt of the Petitioner to summon and examine before the board of
canvassers all Chairmen and members of the Citizens Election Committee of the voting
centers he is questioning, we believe that this indeed can adequately and more properly
be done in a full-blown hearing in an election protest.

We are in full accord with the findings and conclusions of the majority Resolution of the
First Division appealed from and finding no illegality or irregularity in the composition
of the board of canvassers the validity of the proclamation of candidate ABER CANLAS
by the provincial board of canvassers of Pampanga must be, as it is hereby upheld and
sustained.

WHEREFORE, all the foregoing premises considered, the majority Resolution of the
First Division sustaining the validity of the proclamation of Assemblyman ABER
CANLAS made by the Provincial Board of Canvassers of Pampanga in connection with
the May 14, 1984 election is hereby AFFIRMED and accordingly the appeal of the
Petitioner-Appellant BREN GUIAO is hereby DISMISSED.

SO ORDERED. (Rollo, pp. 221-222)

On August 14, 1984, a Notice of Appeal was filed by petitioner through his counsel from the initial
resolution of the First Division dated June 28, 1984, affirming the proclamation of the winning
candidates by the Provincial Board of Canvassers of Pampanga in connection with the May 14, 1984
elections; the Order of the COMELEC sitting en banc dated July 25, 1984, denying the petitioner's
Motion for the Cancellation of the Hearing on said date; and the en banc resolution dated August 4,
1984, affirming the majority resolution of the First Division sustaining the proclamation of
Assemblyman Aber Canlas made by the Provincial Board of Canvassers of Pampanga and accordingly

25 | P a g e
dismissing the appeal of the appellant Bren Guiao. Said notice of appeal was filed on the ground that
these challenged orders are contrary to the facts and applicable law and jurisprudence.

On August 15, 1984, petitioner filed with this Court a supplemental petition for certiorari and review
incorporating therein the proceedings that had transpired in the COMELEC in connection with his
appeal in PPC No. 32-84. In this supplemental petition, petitioner submitted as Annex B thereof (Rollo,
158) the order of the COMELEC dated July 25, 1984, which denied petitioner's request for the
deferment of the scheduled hearing of petitioner's appeal in PPC No. 32-84 before the Commission on
said date. In said Order, the COMELEC recited the proceedings which transpired in said case and
stated among other things, the following:

In view of the express order of this Commission as can be seen from the above quoted
order dated July 18, 1984, which was given in open session on said date, and even
assuming that petitioner's counsel was able to get a certified copy of said order only
yesterday, July 24, counsel has been well advised beforehand that unless restrained by the
Supreme Court, the Commission would receive the evidence of both parties at today's
hearing.

It is also clear from the order of July 18 that if petitioner would not be ready with his
evidence at today's hearing, the Commission will consider the instant case as submitted
for resolution.

The trouble is, petitioner's counsel has assumed he would be able to secure a restraining
order from the Supreme Court prior to this morning's hearing. Failing to do so, he now
asks for another postponement.

At any rate, petitioner's counsel should have been ready with his evidence this morning.
This is what is expected of him, and which he should know as a practicing lawyer.
Counsel should not take this Commission for granted or assume that another
postponement would be granted at his instance.

Counsel's fear that should he commence with the introduction of evidence he might be
deemed to have waived his objections raised in the Supreme Court, is both flimsy and
groundless. In the first place, he has not even given this body the courtesy of furnishing it
a copy of his alleged petition in the Supreme Court, hence, we are not formally aware of
his allegations therein. We cannot rely on his bare manifestation orally presented. If he
has raised the question of jurisdiction he should know that said issue may be raised at any
stage of the proceedings.

It is, therefore clear to us that petitioner and his counsel are merely engaged in dilatory
maneuvers. The records show that the Commission had previously postponed the hearing
of this case upon motion of petitioner's counsel on two (2) previous occasions, the last of
which was done in the interest of justice. So that this Commission now feels it had
already accorded petitioner more than sufficient time with which to prosecute its appeal
before it en banc. (Rollo, pp. 159-160; Order of July 25, 1984, Annex B of Supplemental
Petition for Review on Certiorari).

26 | P a g e
On August 21, 1984, this Court resolved to require respondent to comment on respondent's
supplemental petition for review on certiorari and counsel for petitioner to file a Reply to the Comment
of the Solicitor General for Respondent COMELEC dated August 9,1984; and noted the Manifestation
filed by counsel for private respondent Canlas dated August 20, 1984, adopted COMELEC's Comment.

Public respondent's comment on the supplemental petition was submitted on October 9, 1984 and on
October 22, 1984 private respondent, by his counsel, likewise filed a similar comment pursuant to this
Court's directive. We find no Reply submitted by petitioner to the comment of the Solicitor General for
respondent COMELEC, dated August 9, 1984.

Considering the petition and the other pleadings in support of the same and in connection therewith or
in controversion thereof, We find no merit in petitioner's case. Accordingly, the appeal of petitioner-
appellant Bren Guiao should be dismissed for being untenable.

Firstly, it is petitioner's submission that the annulment of the proclamation made by the Provincial
Board of Canvassers which is claimed to be void ab initio should pertain to respondent Aber P. Canlas
only and should not extend to the other proclaimed candidates, Nepomuceno, Lingad and Lazatin, who
with the petitioner, are affiliating with the UNIDO.

As all the aforementioned candidates-elect were proclaimed together and at the same time the validity
of that proclamation made by the Provincial Board of Canvassers which is now challenged by
petitioner as void ab initio cannot be susceptible of division and must be accepted or rejected in its
totality. It cannot be null and void as to one proclaimed winning candidate and valid with respect to
other similarly proclaimed under the same action taken by the Provincial Board of Canvassers.

Significantly, petitioner apparently concedes and accepts the validity of the proclamation of the three
(3) UNIDO candidates, who with him stood as the official candidates of said political party in the May
14, 1984 elections. He declares that he does not question the proclamation of the said UNIDO
candidates and that their proclamation is now final. (Memorandum for Petitioner, dated June 20, 1984,
page 3). With this inconsistent posture taken by petitioner, the merit of his petition in this case is
irretrievably lost.

Petitioner makes mention of Section 56 of Batas Pambansa No. 697 which permits the partial or
advance proclamation of any winning candidate whose election will not be affected by the outcome of
a pre-proclamation controversy. This connotes the absence of any proclamation made vet by the Board
of Canvassers. This particular provision cited by petitioner does not however support a conclusion that
where a proclamation of all the winning candidates has already been made and the issue is the validity
of that singular act of proclamation, there can be sanctioned a partial annulment of that single
proclamation. Absent only reference to a specific provision of law or legal precedent which expressly
sanctions a partial annulment of a proclamation, it becomes plainly illogical to hold that a single act
done can be valid and invalid at the same time.

But aside from the aforementioned observations, there is nothing on the record nor is there any basis in
law that can justify the setting aside of the proclamation of respondent Aber Canlas as the elected
Batasan Pambansa member.

It is pertinent here to consider the pronouncement made by the COMELEC EN BANC in its said
resolution of August 4, 1984, sustaining the proclamation of respondent Aber Canlas.
27 | P a g e
 xxx xxx xxx

Section 54 states that any candidate, political party coalition of political parties,
contesting the exclusion or inclusion in the canvass of any election returns shall submit
their written objections to the Chairman of Canvassers.

The question now is when it should these written objections be submitted?

From the provision of said Section 54 it can be inferred that these written objections must
be submitted or manifested in order that it can be reflected in the minutes of
canvass during the actual canvassing of the election returns, that is, during the second
stage of the proceedings as pointed above since it is only during this stage that the board
determines the inclusion or exclusion of the returns by opening and examining the returns
to verify the authenticity and genuineness of the same.

The summary nature of the proceedings require that the written objections be filed only
during this stage because it is only during this stage of the canvass when the inclusion or
exclusion of any return is in issue and being passed upon by the board. If during this
stage, after the board has examined the returns and ruled to include them to the canvass
with the acquiescence or approval of the representatives of the political parties and
without any objection representatives of the political parties and without any objection
written or verbal, from any of the candidates or their representatives, they are included in
the canvass and the parties are estopped from questioning the inclusion of the returns in
the canvass and from the denying the admissibility of said returns in the canvass and
from denying the admissibility of said returns for purposes of the canvass after the second
stage of the canvass.

This must be so since at the third stage of the canvass, the inclusion or exclusion of any
election return is no longer in issue. The issue in this third stage is the correctness or
incorrectness of the mathematical computation and tabulation of the total voters received
by the candidates as a result of the canvass.

Once the correctness of the mathematical computation of the result of the canvass during
this stage is determined and as established by the board of canvassers, the fourth stage
remains to be a formality which should not be delayed by frivolous, imaginary and
untimely unsubstantiated objections to election returns, intended to prevent or hinder the
proclamation of the winning candidates.

That these written objections must be submitted during the second stage, that is during
the actual canvassing of the election returns, becomes express when said Section 54 states
"The Board shall defer the canvass of the contested returns and shall not make any ruling
thereon until after all the uncontested election returns have been canvassed.

How can the board of canvassers defer the canvass of the contested returns if these
written objections are submitted after the second stage, that is after the canvassing of said
returns?

28 | P a g e
 To allow these written objections to prosper after the canvassing would be requiring the
board of canvassers to reopen the canvass of election returns all over again which
otherwise was regularly conducted without any objection from the political party
representatives and the candidate or their representatives. This would not be in keeping
with the summary nature of the canvass proceedings.

We cannot sanction a procedure that would destroy the summary nature of the canvass
proceedings and would open the flood gates of unsubstantiated petitions after the results
are known under the guise of written objections under Section 54 to prevent the
proclamation of the winners in an election considering the propensity of the losing
candidates to put up all sorts of obstacles to prevent such proclamation in an open display
of unwillingness to accept defeat.

It is undisputed, as it is admitted and established, that the written objections of the

Petition was submitted to the board of canvassers during the third stage of its
proceedings, that is, at the time when the board was already summing up to total votes
received by the candidates. Clearly, it was filed beyond the second state, i.e., beyond the
period of the actual canvassing of the returns when the inclusion or exclusion of said
returns was being determined and ruled upon by the canvassers.

Since the Petitioner's objections were not timely and seasonably filed, we, therefore, find
and so hold that Section 54 of Batas Pambansa Blg. 697 cannot be availed of by the
petitioner under the established facts in this case.

The board of canvassers would have been within its legal prerogatives to have
proclaimed the winning candidates without obtaining the authority to proclaim from this
Commission.

In the light of the incontrovertible chronology of facts and events, it is obvious that the petition in this
case is devoid of merit.

Petitioner's written objections to the inclusion in the canvass of the questioned election returns were not
timely presented. The time to object in writing to any election return should be when such return is
being examined by the Board of Canvassers and before the number of votes therein reflected are
tallied. Thus Section 54 of Batas Pambansa Blg. 697, provides in part:

Any candidate, political party or coalition of political parties, contesting the exclusion or
inclusion of the canvass of any election returns shall submit their written objections to the
Chairman of the Board of Canvassers. The Board shall defer the canvass of the contested
returns and shall not make any ruling thereon until after the uncontested election returns
have been canvassed

The aforecited provision clearly directs that the Board defer the canvass of the contested return and
make no ruling regarding the same until after the canvass of the uncontested returns. It follows that the
written objections should be made before the votes reflected in the return are tallied, which is the
canvass proper.

29 | P a g e
In Abrigo vs. COMELEC, G.R. No. 31374, Jan. 21, 1970, 31 SCRA 26, 15, it was categorically ruled
that "The law envisions that while the board is doing its work in canvassing the returns and tallying the
result, its attention should be called to any question which could affect its work, so as to enable the said
board to decide whether "to defer the canvass or to continue with it."

Considering that in the case at bar, petitioner presented his written objections only after the canvass of
all the election returns or after the votes reflected in all returns had been tallied, the belatedness of the
submission of petitioner's written objection renders futile its challenge to the canvass already
accomplished by the Board. The Board has its legal obligation, after canvass of the returns, to proclaim
the elected candidates (Abes vs. Commission on Elections, G.R. No. 38348, Dec, 15, 1967, 21 SCRA
125, 1256). As a matter of fact, it even appears that Mrs. Sylvia Antonio, daughter of
Assemblywoman-elect Juanita Nepomuceno, who ran under the UNIDO banner, herself belied the
petitioner's claim of alleged irregularities and other illegal acts. (See En Banc Resolution of
COMELEC dated August 4, 1984, page 6). Thus the certificate of canvass and proclamation of the
Candidates-Elect significantly carried the written and unqualified conformity of tile representative of
the UNIDO, the party to which petitioner belongs. (Rollo, 65)

Petitioner was not denied his right to contest the election returns before the Board of Canvassers. The
Dominant Opposition Party, which was the UNIDO under which banner the petitioner ran was
represented in the Board of Canvassers and in all the Citizens Election Committee and at all stages of
the canvass. All throughout the process of the canvass of the

election returns there was no showing that any election returns was challenged by any of the
representatives of the parties up to the time the canvass was completed.

It was only after an appreciable length of time after the completion of the canvass that petitioner's
counsel interposed his objection to the inclusion of a certain number of the returns. The tardiness of the
objection would be reason enough to dismiss said objection and proceed with the proclamation.
Apparently to dispel any acrimonious challenge to its actions, the Board thru its chairman, prudently
solicited authority from the COMELEC to proclaim the winning candidates without prejudice to ruling
on the petitioner's objection which the Board then set for hearing at eleven thirty in the morning of that
very same day May 17, 1984. COMELEC granted the request of the Board to proclaim the winning
candidates.

In the morning of May 17, 1984, the Board of Canvassers reconvened to hear the matter of petitioner's
written objections. On that day instead of presenting his witnesses, petitioner requested for the issuance
of subpoena ad testificandum to summon members of the various Citizens Election Committee. The
Board of Canvassers rejected this request which was considered as dilatory. Consequently, the Board
dismissed the petitioner's written objections for failure to substantiate the same.

Subsequently the Board was able to proclaim on that same date the winning candidates with the
corresponding Certificate of Canvass of Returns and Proclamations of Candidates signed by all the
members of the Board of Canvassers, including the UNIDO representative.

Regarding this matter, the electoral Commission sitting en banc very succinctly stated in its Resolution
dated August 4, the following

30 | P a g e
 The Board of canvassers acted correctly, and in accordance with the law in dismissing the
written objections of the petitioner for not only because it was not timely and seasonably
filed but also because the petitioner failed to establish prima facie the indubitabtle
existence of the fraud, irregularities or circumstances constituting the grounds of his
written objections.

xxx xxx xxx

Canvass proceedings are primarily administrative and summary in nature, and a

strong prima faciecase backed up by a specific offer of the evidence and indication of its
nature and importance has to be made out to warrant the reception of
evidence aliunde and the presentation of witnesses and the delays necessarily entailed
thereby (Ilarde vs. Comelec, et al., 31 SCRA 72, 81)

Consequently, we have been consistent in holding, as we hereby hold in this case, that
mere allegations of duress, coercion, fraud, terrorism or other similar irregularities
unaccompanied by prima facie proof or showing thereof cannot be sustained as sufficient
o invalidate election returns which otherwise are clean on their faces. Such allegations
without prima facie proofs are mere conjectures and deductions which cannot legally
destroy the prima facie value of election returns for purposes of the canvass. And we add,
such allegations without prima facie proofs when submitted after the actual canvass of
election returns could very well be classified as after thoughts intended to delay or derail
the proclamation of winning candidates.

In passing, we find it noteworthy, if not amusing, that in some voting centers questioned
by the petitioners, he obtained more votes than Respondent as shown hereunder.

[Reference was made to twenty voting centers in Florida and Sta. Ana, Pampanga, where
petitioner Bren Guiao had in fact won over Respondent Aber Canlas] (Rollo, 173-174)

xxx xxx xxx

Resort to general objections have long been proscribed by this Court. Such cannot justify the exclusion
of election returns from the canvass. Otherwise, the paralyzation of canvassing and proclamation
proceedings leading to a vacuum in government offices could easily be brought about. (Ilarde vs.
COMELEC, G.R. No. 31446, Jan. 23,1970, 31 SCRA 72, 81).

In his attempt to prove the alleged duress, intimidation, threats and coercion in the preparation of the
questioned returns, petitioner bewails the unwillingness of the Board of Canvassers to subpoena the
members of the Citizens Election Committee to testify before said Board. We find no cause to fault the
Board in this regard. To have acceded to the petitioner would have made the Board a full dress hearing
body in ascertainment of issues of fact far beyond its authority to perform.

In Lucman vs, Dimaporo, G.R. No. 31558, May 29, 1979, 33 SCRA 387, 405-407, this Court stated
that the function of a Provincial Board of Canvassers is purely ministerial in nature. Quoting from
Demafiles vs. Commission on Elections, L28396, December 29, 1967, 21 SCRA 1462, 1466, this
Court then said:

31 | P a g e
 First a canvassing board performs a purely ministerial function- that of compiling and
adding the results as they appear in the returns transmitted to it. This is the teaching in
Nacionalista Party v. Commission on Elections; "the canvassers are to be satisfied of the
genuineness of the returns-namely, that the papers presented to them are not forged and
spurious, that they are returns, and that they are signed by the proper officers. When so
satisfied,. . . they may not reject any returns because of informalities in them or because
of illegal and fraudulent practices in the elections." Thus, they cannot pass upon the
validity of an election return, much less exclude t from the canvass on the ground that the
votes cast in the precinct from whence it came are illegal. (Citing 85 Phil. 149, 157-158
(1949).

There is more compelling reason to be guided by such judicial guidelines. If the Provincial Board of
Canvassers had acquiesced to receiving the testimonial evidence which the petitioner sought to obtain
and later present, it would have been obliged to allow respondent Aber Canlas, a similar opportunity to
submit controverting testimonial evidence. The resulting effect would be for said Board to unduly
usurp the functions given exclusively to the COMELEC to adjudicate such a pre-proclamation
controversy.

It would not have served any gainful purpose for the Board to issue the subpoenas desired by petitioner
because Section 50 of Batas Pambansa Blg. 697 provides that the Commission on Elections shall have
exclusive jurisdiction over all pre-proclamation controversies. Consequently, the Board is precluded
from entertaining requests the nature of which would be for the purpose of having members of the
Citizens Election Committee testify before the Board on the duress, intimidation, terrorism, and other
election irregularities alleged by petitioner. It is a well-entrenched rule in our jurisprudence that Boards
of Canvassers have no power to pass upon election frauds and irregularities as questions of illegal
voting and fraudulent practices are passed on by another tribunal. Sanki vs. COMELEC, G.R. No.
28359, Dec. 26,1967,21 SCRA 1392; citing Dizon vs. Prov. Board of Canvassers, 52 Phil. 4, 57-58).

As there was no useful result that could be obtained in issuing the subpoena asked for by petitioner
from the Board whose authority to grant such requests for the avowed purpose would be even dubious,
this Court finds no reason whatsoever to fault the refusal of the Board to issue those subpoenas.

Petitioner repeatedly insists that what was submitted to the COMELEC for resolution, is limited to the
issue alone of the validity of the proclamation of respondent Aber Canlas among the winning
candidates. Petitioner assails such proclamation made on May 17, 1984 by the Provincial Board of
Canvassers. He invokes Section 54 of Batas Pambansa Blg. 697 which recites that "The Board shall not
proclaim any winning candidate unless authorized by the Commission and any proclamation made in
violation thereof shall be null and void ab initio."

But as exhaustively discussed and pointed out in the resolution of the COMELEC of August 4, 1984
which affirmed the resolution of the First Division of said Commission, promulgated on July 28, 1984,
the Commission had approved, in a minute resolution dated May 14 1984, the earlier memorandum
request of Atty. Manuel C. Lucero, Acting Director, Region III, San Fernando, Pampanga and
Chairman of the provincial Board of Canvassers, for authority to proclaim the winning candidates in
the May 14, 1984 Batas Pambansa election in said constituency (Resolution of COMELEC, dated
August 4, 1984, on pages 4-5).

32 | P a g e
Factually, there was such prior authorization to proclaim he winning candidates, including respondent
Aber Canlas. Properly. there was even no need under the established facts in this case for the formality
of the authorization considering that petitioner's objections not having been timely and seasonably
filed, Section 54 of Batas Pambansa Blg, 697 cannot consequently be availed of by petitioner, as was
rightfully so considered by the COMELEC in its resolution of August 4, 1984.

Petitioner falls back on another contention which is that under Section 54 of Batas Pambansa Blg. 697
the Board could not make the proclamation nor could it have been rightfully authorized by the
COMELEC before the lapse of the five-day period to appeal to the COMELEC the filing of the Board
on his written objections to the canvass.

But as already above-discussed, due to petitioner's inaction and tardiness, petitioner cannot insist on the
applicability of said provision.

But even if said Section 54 has to be considered, it can be readily realized from a reading thereof that
the prohibition therein for the Board not to proclaim any winning candidate, is premised on the basic
assumption that the Board of Canvassers had deferred the canvass of the contested returns and would
still have to rule on whether or not such contested returns would be included or not -in the canvass.
Such situation which would be the justification for the prohibition not to proclaim never arose in the
case at bar. As no election return was ever contested from the time the canvass was started until the
tally of votes were completed, consequently, no ruling can then be expected for the Board to make and
which could be the subject of the appeal contemplated under Section 54, If no such ruling has to be
made by the Board of Canvassers it would follow that there would be no reason for the prohibition to
proclaim the winning candidates and that the five-day period to appeal to the COMELEC prescribed in
the second paragraph of Section 54 need not be reckoned at all. The recourse left to the petitioner in the
matter of his objections interposed after the tally is to be found elsewhere.

What is indeed more proper is the application of Section 56. of said Batas Pambansa Blg. 697 which
allows a party to file a motion with the Commission to annul or suspend the proclamation of any
candidate. The mere filing of such petition t annul or suspend the proclamation of any candidate does
not however automatically deprive the Board of Canvassers of its authority to proclaim. Neither would
filing such a petition at, once negate a proclamation which said Board -Might have already made.
Under said provision, it is clearly specified that what is only suspended is the running of the period to
file an election protest or quo warranto proceedings, We discern no legal impediment to the
proclamation made by the Respondent Board of Canvassers. No violation of Section 54 of Batas
Pambansa Blg. 697 can be rightfully imputed to said Board.

The contention of petitioner that the Acting Regional Director of Region III, Atty. Manuel Lucero
acted as Chairman of respondent Provincial Board of Canvassers of Pampanga to the exclusion of the
Provincial Election Officer of said province and that consequently, there was an illegal composition of
the said Board is plainly untenable,

As the records of the Commission show, as early as May 7, 1984, Atty. Silvestre Bello, Assistant
Executive Director for Operations, submitted to Chairman Vicente M. Santiago, Jr. for approval a
Memorandum-List of the proposed Chairmen of the Board of Canvassers, stating therein the following:

33 | P a g e
 ... For the provinces, the Chairmen are the respective Provincial Election
Supervisors, except in Pampanga, Romblon and Tawi-Tawi, while the supervisor of
Capiz has been detailed in the regional office in Iloilo City. ...

xxx xxx xxx

To the said memorandum, a list was attached indicating that for Region III, the proposed Chairmen of
the Board of Canvassers would be:

xxx xxx xxx

Region III

1
. Bataan
Demosthenes
Aguinaldo
2. Orbito
Pangan Bulacan
3. Rolando Nueva
Sta. Maria Ecija
4. Manuel C
Lucero Pampanga
5. Orlando Tarlac
Capitulo
6. Eleuterio
Rivera Zambales

xxx xxx xxx

(Emphasis supplied)

The said memorandum and list were approved, also on May 7, 1984, by Chairman Vicente M.
Santiago, Jr. and on May 8, 1984, Assistant Executive Director Silvestre Bello, Jr. sent the
corresponding advice by telegram to Atty. Manuel Lucero.

As explained by the Commission, en banc, in its resolution of August 4, 1984:

In the Batasang Pambansa election on May 14, 1984, in all cases when the City Election
Registrar or Provincial Election Officer, is a non-lawyer or only holding such office in
acting capacity, lawyers from other offices of the Commission on Elections, has been
proposed and designated as Chairmen of the Board of Canvassers concerned as shown in
the foregoing Memorandum and List submitted by Atty. Silvestre Bello, Jr. to the
Chairman of the Commission on Elections.

34 | P a g e
 One of the Provincial Boards of Canvassers where a lawyer from another office of the
Commission was designated as Chairman thereof in lieu of the Provincial Election
Officer was in the province of Pampanga because the position of Provincial Election
Officer of said province was and still is vacant. Although there was a designated officer-
in-charge in the person of Atty. Carlos Magno Ma he was also the Election Registrar of
San Fernando, Pampanga. Considering that he would be occupied by his duties as
Election Registrar of San Fernando, Pampanga, it was imperative to designate another
qualified Comelec lawyer to act as Chairman of the Provincial Board of Canvassers of
Pampanga for the May 14, 1984 elections.

Atty. Manuel Lucero was proposed and eventually designated considering (a) his
experience as Acting Regional Election Director, Region 111, San Fernando, Pampanga,
and (b) the proximity of his office to the venue of the provincial canvass in Pampanga
which by law was the session hall of the Sangguniang Panlalawigan in San Fernando,
Pampanga.

There was, therefore, no irregularity in the designation of Atty. Manuel Lucero as his
designation as Chairman of the Provincial Board of Canvassers of Pampanga was lawful
and properly authorized by the Commission thru its Chairman Vicente M. Santiago, Jr.
(pp. 56-57; Rollo, 218-219)

We find nothing concrete or substantial in the averments of petitioner sufficient to refute and disprove
the matters above attested to by an overwhelming majority of the Commission en banc.

Furthermore, the petition to annul the proclamation and to nullify the proceedings of the Board of
Canvassers has now become moot. Petitioner had already filed with the COMELEC a verified petition,
dated May 18, 1984, assailing the action taken by the Board in refusing to issue the subpoenas for
members of the Citizens Election Committee to testify in view of his objections to the election returns.
Another petition was later filed by him with the COMELEC on May 22,1984, to annul the
proclamation of the respondent Aber Canlas. These two petitions are no less in the nature of an appeal
from the Board's dismissal of his written objections and were already duly resolved by the COMELEC.
Sec. 50 of Batas Pambansa explicitly states that "The Commission on Elections shall be the sole judge
and shall have exclusive jurisdiction over all pre-proclamation controversies." To set aside the
proclamation and allow the petitioner to appeal again to the COMELEC on the dismissal of his written
objections and on the proclamation of respondent Aber Canlas as the winning candidate, would be but
an exercise in redundancy

Furthermore, the resulting effect of depriving the province of Pampanga of representation during the
period of petitioner's appeal should not be countenanced as he has, after all the remedy of an election
protest, which both the Board of Canvassers and the Commission on Elections recognized.

WHEREFORE, the petition for review in this case is hereby dismissed for lack of merit, with costs
against the petitioner herein.

SO ORDERED.

35 | P a g e
LEE VS. COMELEC, G. R. No. 157004. July 4, 2003

CARPIO-MORALES, J.:

Before this Court is a petition for certiorari with prayer for a temporary restraining order/ writ of
preliminary injunction under Rule 64 of the 1997 Rules of Civil Procedure seeking to set aside the
February 11, 2003 En Banc Resolution[1] of the Commission on Elections (COMELEC) in SPC No. 01-
124.
Sally A. Lee (petitioner) and Leovic R. Dioneda (private respondent) were candidates for mayor of
Sorsogon City, Sorsogon in the May 14, 2001 elections.
During the canvassing of the election returns, counsel for private respondent objected to the inclusion
of Election Return No. 41150266 for Precinct No. 28A2 in barangay Bucalbucalan, Sorsogon City on
the grounds that 1) no entries were made for the position of congressman, and 2) Laban ng
Demokratikong Pilipino (LDP) watchers were utilized to fill up election returns.[2]
In her opposition to private respondents objection, petitioner alleged that 1) the omitted entry in the
election return pertains to the position of congressman which cannot be a subject of pre-proclamation
controversy, 2) the utilization of the watchers, who were under the direct supervision of the Board of
Election Inspectors (BEI), was limited only to the filling up of the entries affecting the party-list and
justified by the severe lack of personnel to perform the task, and 3) the alleged defect does not affect the
integrity of the election return.[3]
On May 18, 2001, the Board of Canvassers (BOC), finding that the 1) questioned election return was
clear and regular on its face, 2) there was no pre-proclamation for members of the House of
Representatives and party list, and 3) the grounds relied upon by private respondent are all directed
against the proceedings of the BEI and not the BOC, ruled for the inclusion of the return.[4] Private
respondent thereupon filed on the same day a notice of appeal of the BOC ruling.[5]
In the meantime, or on May 19, 2001, the BOC proclaimed the winning candidates, including
petitioner as city mayor.[6]
Private respondent thus filed on May 23, 2001 before the COMELEC a petition,[7] docketed as SPC
No. 01-124, assailing the ruling of the BOC and praying for the exclusion of the questioned election
return and the annulment of petitioners proclamation.
Petitioner filed her answer[8] to the COMELEC petition, praying for its dismissal.
By Resolution[9] of January 10, 2003, the COMELEC Second Division granted the petition of private
respondent and accordingly excluded the questioned return from the canvass and nullified the
proclamation of petitioner. The dispositive portion of the resolution reads:

WHEREFORE, premises considered, the petition is GRANTED. The order of respondent Board dated
May 18, 2001 including Election Return No. 41150266 from Precinct No. 28A2 of Bucalbucalan,
36 | P a g e
Sorsogon City in the May 14, 2001 Elections canvass of Sorsogon City is hereby REVERSED AND
SET ASIDE. Said election return is hereby excluded from the May 14, 2001 Elections canvass of
Sorsogon City. Further, the proclamation of private respondent Sally Lee on May 19, 2001 is
hereby declared NULL and VOID ab initio pursuant to Section 20 (i) of RA 7166.

A new City Board of Canvassers of Sorsogon City is hereby constituted to be composed of the
following COMELEC lawyers:

1. Atty. Nelia Aureus Chairperson

2. Atty. Allen Francis Abaya Vice-Chairperson

3. Atty. Emilio Santos Secretary

The new City Board of Canvassers of Sorsogon City is hereby directed to prepare a new Statement of
Votes for the position of mayor of Sorsogon City excluding the election return from Precinct No. 28A2
of Bucalbucalan, Sorsogon City and, based on said canvass in the new Statement of Votes, proceed to
proclaim the winning candidate for mayor of Sorsogon City.

The original City Board of Canvassers of Sorsogon City is hereby directed to transmit to the new Board
all COMELEC forms and documents used in the canvassing including the Boards copies of all election
returns canvassed in the May 14, 2001 Elections in Sorsogon City.

Finally, the Law Department is directed to conduct the necessary investigation of the members of the
BEI of Precinct No. 28A2 of Bucalbucalan, Sorsogon City for the possible commission of election
offenses.

SO ORDERED. (Emphasis and underscoring supplied)

Petitioners Motion for Reconsideration[10] of the COMELEC Second Division January 10, 2003
Resolution was denied by the COMELEC En Banc, by Resolution[11] of February 11, 2003 the
dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the Commission En Banc DENIES the Motion for
Reconsideration for lack of merit. The Resolution of the Second Division promulgated on January 10,
2003 is hereby AFFIRMED.

The New City Board of Canvassers of Sorsogon City constituted by said Resolution is hereby
ORDERED to convene immediately, prepare a new Statement of Votes excluding the election returns
from Precinct No. 28A[2], Bucalbucalan, Sorsogon City, and on the basis of the new Statement of
Votes, proclaim the winning candidate for mayor of Sorsogon City.

The original City Board of Canvassers is directed to transmit to the new City Board of Canvassers the
COMELEC documents they used in their canvass. In the event however that the old City Board of
Canvassers, for any reason, fail to deliver to the new City Board of Canvassers the COMELEC
documents used in the canvassing, specifically the old statement of votes and the election return for
Precinct No. 28A[2], prior to date of canvass, the new Board is hereby authorized to use the
COMELEC copy of said documents.
37 | P a g e
This resolution is immediately executory.

SO ORDERED.

Hence, the present petition, alleging that:

I.

PUBLIC RESPONDENT IS WITHOUT JURISDICTION TO GO BEYOND OR BEHIND

ELECTION RETURNS AND INVESTIGATE ELECTION IRREGULARITIES IN PRE-
PROCLAMATION CONTROVERSY.

II.

PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION WHEN IT RENDERED THE

ASSAILED RESOLUTIONS DESPITE THE CLEAR AND APPARENT LACK OF FACTUAL AND
LEGAL BASIS TO SUPPORT THE SAME.

III.

PUBLIC RESPONDENT COMMITTED PROCEDURAL LAPSES IN THE PROMULGATION OF

THE ASSAILED RESOLUTIONS WHICH AFFECTS THE FAIRNESS STANDARD.[12]

On February 18, 2003, this Court issued a Status Quo Ante Order[13] enjoining the COMELEC to
observe the status quo prevailing before the filing of the petition and refrain from implementing the
assailed January 10, 2003 and February 11, 2003 Resolutions until further orders from this Court.
Section 243 of the Omnibus Election Code provides:

Section 243. Issues that may be raised in a pre-proclamation controversy. The following shall be
proper issues that may be raised in a pre-proclamation controversy:

(a) Illegal composition or proceeding of the board of canvassers;

(b) The canvassed election returns are incomplete, contain material defects, appear to be
tampered with or falsified, or contain discrepancies in the same returns or in other
authentic copies thereof as mentioned in Sections 233, 234, 235, and 236 of this Code;
(c )The election returns were prepared under duress, threats, coercion, or intimidation, or they
are obviously manufactured or not authentic; and
(d) When substitute or fraudulent returns in controverted polling places were canvassed, the
results of which materially affected the standing of the aggrieved candidate or candidates.
(Emphasis supplied)
On the first assigned error, petitioner argues that as the case at bar is a pre-proclamation controversy,
the COMELEC is restricted to an examination of the election returns and is without jurisdiction to go
[beyond] or behind them and investigate election irregularities,[14] citing the case of Loong v.
Commission on Elections[15] which held:
xxx

38 | P a g e
We have recently reiterated the Dianalan and Dimaporo rulings in the case of Alfonso v. Commission
on Elections, promulgated in June, 1994. The prevailing doctrine in this jurisdiction, therefore, is
that as long as the returns appear to be authentic and duly accomplished on their face, the Board
of Canvassers cannot look beyond or behind them to verify the allegations of irregularities in the
casting or the counting of the votes. Corollarily, technical examination of voting paraphernalia
involving analysis and comparison of voters signatures and thumbprints thereon is prohibited in
pre-proclamation cases which are mandated by law to be expeditiously resolved without
involving evidence aliunde and examination of voluminous documents which take up much time
and cause delay in defeat of the public policy underlying the summary nature of pre-
proclamation controversies.

x x x (Italics in the original; emphasis and underscoring supplied)

Petitioners argument is bereft of merit.

The doctrine cited by petitioner presupposes that the returns appear to be authentic and duly
accomplished on their face. Where, as in the case at bar, there is a prima facieshowing that the
return is not genuine, several entries having been omitted in the questioned election return, the doctrine
does not apply. The COMELEC is thus not powerless to determine if there is basis for the exclusion of
the questioned election return.
As to the second error raised by petitioner, she claims that contrary to the findings of the COMELEC,
there is no evidence on record that an LDP watcher participated in the preparation of the questioned
election return. She posits that the omission of entries was not done with malice or bad faith nor meant
to subvert the true will of the people, and that the election return in question is clear and regular on its
face, duly authenticated by the signatures and thumbmarks of the six watchers and all the members of
the BEI. Finally, she posits that an incomplete election return is not necessarily spurious, manufactured
or fraudulent to necessitate its exclusion.[16]
While the BOC indeed found the questioned election return clear and regular on its face, it is not
conclusive on the COMELEC nor on this Court in light of what transpired during the proceedings before
the BOC in which the members of the BEI were examined and gave the following explanations behind
the omission of entries for the position of congressman:
xxx
APP DIMAANO: Ito ba ang mga papeles o election return na inyong ginawa sa presinto.
MS. LADUB: Opo.
APP DIMAANO: Opo. Ngayon, page one tungkol senators, okay. Sa party list, meron kayong
inilagay na resulta ng botohan. Punta tayo sa page one noong local positions, tignan nyo
po sa parte ng congressman kung ano ang nakalagay. Kayo po una kayo po Ginang
Jamisal.
MS. JAMISAL: Wala ho.
APP DIMAANO: Wala ho. Kayo po Gina Labayo.
MS. LABAYO: Wala ho.
APP DIMAANO: Wala ho. Kayo ho Ladub Ginang Ladub.
MS. LADUB. Wala ho.
39 | P a g e
 APP DIMAANO. Okay, doon sa ibang position, governor, vice governor, board member, city .
. . anong masasabi ninyo?
MS. JAMISAL: Okay naman po.
APP DIMAANO: Meron lahat meron doon. Balik tayo doon sa position noong
congressman at saka representative.
APP DIMAANO: Maari bang sabihin ninyo sa amin kung bakit ito inamin niyo at nakikita
rito sa dokumentong ito sa election return na wala ni anong marka, ni pangalan at saka
itong mga ano yan . . . nararapat na markings. Mauna ka Ginang Jamisal.
MS. JAMISAL: Siguro ho dahil siguro medyo ano na kami over fatigue na inaantok na.
yong nakita ko na mga naka-tally dito yon lang at saka may mga bilang yon lang ang
pinirimahan ko dahil yon lang . . . Hindi ko na ho na ano yong sa taas may pangalan
pa lang congressman hindi naitala ni Gina yong pangalan ng kandidato sa
congressman kayat hindi ko na pinirmahan. So ang pinirmihan ko lang yong may mga
tally. Hindi ko na na ano ho na wala pala yong congressman. Hindi ko lang nabasa ito
na congressman. Kung siguro ho nakita ko lang na congressman sasabihin ko ho . . .
sasabihin ko kay Gina na ilagay ang ano . . . ang kandidato sa congressman.
APP DIMAANO: Kayo Ginang Ladub, ano ang paliwanang niyo.
MS. LADUB: Masama ho ang pakiramdam ko.
APP DIMAANO: Ano ho ba ang isaktong papel niyo noong election doon sa loob ng presinto.
Taga ano ho kayo?
MSA. LADUB: Nagta-tally ho.
APP DIMAANO: Anong ibig sabihin ng tally.
MS. LADUB: Ako pa ang humahawak nitong sa senator sa pag tally ko po.
APP DIMAANO: Alin ang isaktong pinagtally-han niyo ho? Anong position?
MS. LADUB: Senator.
APP DIMAANO: At saka senator lang ho ba?
MS. LADUB: Opo.
APP DIMAANO: eh yong party list sinong . . .
MS. JAMISAL: Yong iba ho, sir na ano naming, yong watcher kasi hindi pa naming kayang na
ano . . . siguro naman sir walang problema . . .
ATTY. FORTES: Anong presinto yan?
WATCHER: 28A
ATTY. FORTES: 28A.
APP DIMAANO: Okay, dito tayo sa congressman sinong may in-charge dito sino?
MS. JAMISAL: (Pointing to Ms. Labayo.)
APP DIMAANO: Gina Labayo. Kayo ho anong masasabi niyo rito. Dapat ba ritong meron
o wala.
40 | P a g e
 MS. LABAYO: Meron ho.
APP DIMAANO: Dapat . . . meron daw. O ngayon, bakit wala?
MS. LABAYO: Nakalimutan ko ho. Humihingi po ako ng tawad sa inyo.
APP DIMAANO: Hindi, ipaliwanag mo lang kung bakit kayo nakalimot. Hindi naman
kami nag-ano niyon. Nag-uusig kami kasi yon din ang sasabihin naming kung bakit.
MS. LABAYO: Sobrang pagod po, sir.
APP DIMAANO: Wala na bang ibang dahilan diyan. Wala ka na bang ibang paliwanang
maliban sa nakalimot kat napapagod ka na.
MS. LABAYO: (Silence.)
x x x [17](Italics in the original; emphasis supplied)
As the above-quoted record of the proceedings before the BOC shows, Gina Labayo, a member of
the BEI, admitted that there were supposed to be entries for the position of congressman but she forgot
to record them as she was extremely tired. Such convenient explanation, without more, does not,
however, appear satisfactory.
Moreover, in her Answer to the original petition filed with the COMELEC, petitioner admitted that
pollwatchers, who were not members of the BEI, participated in the preparation of the election
return. Thus she alleged:
xxx

More importantly, the transcript of the proceedings (Annex A-3 page 9 and 15) will show and prove
that what were prepared and made by the pollwatchers were the entries in the TALLY BOARD and the
votes cast in the Election Return for Party List Representative;

x x x [18] (Emphasis and underscoring omitted; italics supplied)

As thus correctly ruled by the COMELEC Second Division:

Votes for an important position such as congressman do not simply vanish into thin air. Those who are
mandated by law to account for such votes, if mistakenly omitted, are at least expected to give a fairly
reasonable account of why and how they have been omitted. Absent such explanation, doubt arises
as to the authenticity of the returns and the manner of their preparation, specially in this case
where a party watcher was allowed to take part in the preparation of the election return.

x x x[19] (Emphasis and underscoring supplied).

As to the third error raised by petitioner, she argues that the January 10, 2003 Resolution of the
COMELEC Second Division was promulgated without giving her notice, and that were it not for her
counsels accidental visit to the COMELEC on January 13, 2003, said counsel would not have known
that said resolution was already promulgated and the 5-day period from the date of promulgation to file
a motion for reconsideration, as provided under the following provision of Rule 19 of the 1993
COMELEC Rules of Procedure, would have lapsed:[20]

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Section 2. Period for Filing Motions for Reconsideration. A motion to reconsider a decision, resolution,
order or ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such
motion, if not pro-forma, suspend the execution or implementation of the decision, resolution, order
and ruling.

And petitioner, noting that the ponente of the En Banc Resolution was not therein indicated, raises
the possibility that the ponente for the Second Division Resolution and that of the En Banc Resolution
were the same, thus violating Section 1, Rule 4 of the COMELEC Rules[21] which reads:

Section 1. Disqualification or Inhibition of Members. (a) No Member shall sit in any case in which he
or his spouse or child is related to any party within the sixth civil degree of consanguinity or affinity, or
in which he has publicly expressed prejudgment as may be shown by convincing proof, or in which the
subject thereof is a decision promulgated by him while previously serving as presiding judge of an
inferior court, without the written consent of all the parties, signed by them and entered in the records
of the case; Provided, that no Member shall be the ponente of an en banc decision/resolution on a
motion to reconsider a decision/resolution written by him in a Division.

x x x (Emphasis supplied; italics in the original)

In Lindo v. Commission on Elections,[22] this Court held that the 5-day period for the filing of an
appeal commences from the date of receipt of copy of the decision. As correctly ruled by the
COMELEC:

The petitioner misinterpreted the provision of Section 2, Rule 19 of the 1993 Comelec Rules of
Procedure when she stated that Unlike other cases, the reglamentary period within which a party can
have the decision or resolution reviewed on motion for reconsideration runs from the date of
promulgation. When not promulgated in open hearing, a simple procedural sense would dictate
that the period to file a Motion for Reconsideration must have to be tolled from the date of
receipt of the decision/resolution involved.

Further, the doctrine laid down in the case of Lindo v. Comelec (194 SCRA 25) would have supported
the proposition that the additional requirement imposed by the COMELEC Rules on advance notice of
promulgation does not form part of the process of promulgation and that the failure to serve such notice
in advance did not prejudice the rights of the parties and did not vitiate the validity of the decision nor
of the promulgation, as the period for the unsatisfied party to move for reconsideration can be exercised
not from the date of promulgation, as misconstrued by petitioner, but from her actual receipt of a copy
of the resolution in question.[23] (Italics in the original; emphasis supplied)

As to the non-indication of the ponente of the COMELEC En Banc Resolution, petitioner merely
proffers a possibility of violation of the COMELEC Rules. It is presumed, however, that an official duty
has been regularly performed.[24]
The lack of merit of petitioners arguments notwithstanding, the COMELEC, in ordering the
exclusion of the questioned return, should have determined the integrity of the ballot box, the ballot-
contents of which were tallied and reflected in the return, and if it was intact, it should have ordered its
opening for a recounting of the ballots if their integrity was similarly intact. So instructs Section 234 of
the Omnibus Election Code which reads:

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Section 234. Material defects in the election returns. If it should clearly appear that some requisites
in form or data had been omitted in the election returns, the board of canvassers shall call for all
members of the board of election inspectors concerned by the most expeditious means, for the same
board to effect the correction.

Provided, That in case of the omission in the election returns of the name of any candidate and/or his
corresponding votes, the board of canvassers shall require the board of election inspectors concerned to
complete the necessary data in the election returns and affix therein their initials: Provided,
further, That if the votes omitted in the returns cannot be ascertained by other means except by
recounting the ballots, the Commission, after satisfying itself that the identity and integrity of the
ballot box have not been violated, shall order the board of election inspectors to open the ballot
box, and, also after satisfying itself that the integrity of the ballots therein has been duly
preserved, order the board of election inspectors to count the votes for the candidate whose votes
have been omitted with notice thereof to all candidates for the position involved and thereafter
complete the returns. The right of a candidate to avail of this provision shall not be lost or affected by
the fact that an election protest is subsequently filed by any of the candidates. (Emphasis supplied)

And so does Section 235 of the same Code which provides:

Section 235. When election returns appear to be tampered with or falsified. If the election returns
submitted to the board of canvassers appear to be tampered with, altered or falsified after they
have left the hands of the board of election inspectors under duress, force, intimidation, or prepared by
persons other than the members of the board of election inspectors, the board of canvassers shall
use other copies of said election returns and if necessary, the copy inside the ballot box which upon
previous authority given by the Commission may be retrieved in accordance with Section 220 hereof.
If the other copies of the returns are likewise tampered with, altered, falsified, not authentic, prepared
under duress, force, intimidation, or prepared by persons other than the board of election inspectors, the
board of canvassers or any candidate affected shall bring the matter to the attention of the
Commission. The Commission shall then, after giving notice to all candidates concerned and after
satisfying itself that the integrity of the ballot box and, likewise after satisfying itself that
the integrity of the ballots therein has been duly preserved shall order the board of election
inspectors to recount the votes of the candidates affected and prepare a new return which shall
then be used by the board of canvassers as basis of the canvass. (Emphasis and underscoring
supplied)

Thus, this Court in Patoray v. Commission on Elections[25] held:

xxx

As to the election return for Precinct No. 20-A, we ruled that the COMELEC erred in resorting to the
Certificate of Votes in excluding the return in said precinct. Since the return was incomplete for
it lacked the data as to provincial and congressional candidates, the applicable provision would
be Section 234 of the Omnibus Election Code which deals with material defects in election returns.
Thus, we ruled that the COMELEC should have first determined the integrity of the ballot box,
ordered the opening thereof and recounted the ballots therein after satisfying itself that the integrity
of the ballots is intact. We then directed the COMELEC to issue another Order in accordance with said
Decision.

43 | P a g e
x x x (Italics in the original; emphasis and underscoring supplied)

If the integrity of the ballot box had been violated, then there would be no need to open it. If not, and
upon opening it there is evidence that the integrity of the ballots had been violated, there would be no
recounting thereof, and the COMELEC would then seal the box and order its safekeeping. Thus Section
237 of the Omnibus Election Code provides:

Sec. 237. When integrity of ballots is violated. If upon the opening of the ballot box as ordered by the
Commission under Sections 234, 235 and 236, hereof, it should appear that there are evidence or signs
of replacement, tampering or violation of the integrity of the ballots, the Commission shall not recount
the ballots but shall forthwith seal the ballot box and order its safekeeping.

WHEREFORE, the COMELEC is, in accordance with the foregoing discussion, hereby
DIRECTED to determine within twenty days whether the integrity of the ballot box, the ballot-contents
of which were tallied and reflected in the questioned return, is intact and, if in the affirmative and the
integrity of the ballots is likewise intact, to order the Sorsogon City Board of Election Inspectors to
recount the votes cast in Precinct No. 28A2 in Barangay Bucalbucalan, Sorsogon City and prepare a new
return to serve as basis of canvass by said board; otherwise the ballot box should no longer be opened or
the ballots should no longer be recounted as the case may be, in which case an order for the safekeeping
of the ballot box should be issued.The Status Quo Ante Order issued on February 18, 2003 is hereby
DISSOLVED.
SO ORDERED.

LAGUMBAY VS. COMELEC, G.R. No. L-25444 January 31, 1966

BENGZON, C.J.:

This petition prays for revision of an order of the Commission on Elections declining to reject the
returns of certain precincts of some municipalities in Mindanao. The Constitution provides for review
by this Court of the rulings of the said Commission.

The matter being urgent, and having reached the conclusion that the returns of certain questioned
precincts were "obviously manufactured" within the meaning of pertinent jurisprudence, particularly
Mitchell v. Stevens,1 we issued on December 24, 1965, a short resolution upholding the Commission's
power and duty to reject the returns of about fifty precincts.

It appearing therein that contrary to all statistical probabilities in the first set, in each
precinct the number of registered voters equalled the number of ballots and the number of votes
reportedly cast and tallied for each and every candidate of the Liberal Party, the party in power;
whereas, all the candidates of the Nacionalista Party got exactly zero; and in the second set,
again contrary to all statistical probabilities all the reported votes were for candidates of the
Liberal Party, all of whom were credited with exactly the same number of votes in each precinct,

44 | P a g e
 ranging from 240 in one precinct to 650 in another precinct; whereas, all the candidates of the
Nacionalista Party were given exactly zero in all said precincts.

We opined that the election result to said precincts as reported, was utterly improbable and clearly
incredible. For it is not likely, in the ordinary course of things, that all the electors of one precinct
would, as one man, vote for all the eight candidates of the Liberal Party, without giving a single vote
to one of the eight candidates of the Nacionalista Party. Such extraordinary coincidence was quite
impossible to believe, knowing that the Nacionalista Party had and has a nationwide organization, with
branches in every province, and was, in previous years, the party in power in these islands.

We also know from our experience in examining ballots in the three Electoral Tribunals (Presidential,
Senate, and House) that a large portion of the electors do not fill all the blanks for senators in their
ballots. Indeed, this observation is confirmed by the big differences in the votes received by the eight
winning senators in this as well as in previous national elections;2 almost a million votes between the
first place and the eight. Furthermore, in 1965, the total number of electors who cast their votes was
6,833,369 (more or less). If every voter had written eight names on his ballot, the total number of votes
cast for all the candidates would be that number multiplied by 8, namely 54,666,952. But the total
number of the votes tallied for the candidates for senator amounted to 49,374,942 only. The difference
between the two sums represents the number of ballots that did not contain eight names for senators. In
other words, some 5 million ballots did not carry eight names. Of course, this is a rough estimate,
because some ballots may have omitted more names, in which case, the number of incomplete ballots
would be less. But the general idea and the statistical premise is there.

The same statistical result is deducible from the 1963 election data: total number of electors who voted,
7,712,019; if each of them named eight senators, the total votes tallied should have been 61,696,152;
and yet the total number tallied for all the senatorial candidates was 45,812,470 only. A greater number
of incomplete ballots.

It must be noted that this is not an instance wherein one return gives to one candidate all the votes in
the precinct, even as it gives exactly zero to the other. This is not a case where some senatorial
candidates obtain zero exactly, while some others receive a few scattered votes. Here, all the
eight candidates of one party garnered all the votes, each of them receiving exactly the same number,
whereas all the eight candidates of the other party got precisely nothing.

The main point to remember is that there is no block-voting nowadays.

What happened to the vote of the Nacionalista inspector? There was one in every precinct. Evidently,
either he became a traitor to his party, or was made to sign a false return by force or other illegal
means. If he signed voluntarily, but in breach of faith, the Nacionalista inspector betrayed his party;
and, any voting or counting of ballots therein, was a sham and a mockery of the national suffrage.

Hence, denying prima facie recognition to such returns on the ground that they are manifestly
fabricated or falsified, would constitute a practical approach to the Commission's mission to insure free
and honest elections.

In Mitchell vs. Stevens, supra, the returns showed a noticeable excess of votes over the number of
registered voters, and the court rejected the returns as obviously "manufactured". Why? The excess
could have been due to the fact that, disregarding all pertinent data, the election officers wrote the
45 | P a g e
number of votes their fancy dictated; and so the return was literally a "manufactured", "fabricated"
return. Or maybe because persons other than voters, were permitted to take part and vote; or because
registered voters cast more than one ballot each, or because those in charge of the tally sheet falsified
their counts. Hence, as the Mitchell decision concluded, the returns were "not true returns . . . but
simply manufactured evidences of an attempt to defeat the popular will." All these possibilities and/or
probabilities were plain fraudulent practices, resulting in misrepresentation of the election outcome.
"Manufactured" was the word used. "Fabricated" or "false" could as well have been employed.

The same ratio decidendi applies to the situation in the precincts herein mentioned. These returns were
obviously false or fabricated prima facie. Let us take for example, precinct No. 3 of Andong, Lanao
del Sur. There were 648 registered voters. According to such return all the eight candidates of the
Liberal Party got 648 each,3 and the eight Nacionalista candidates got exactly zero. We hold such
return to be evidently fraudulent or false because of the inherent improbability of such a result
against statistical probabilities specially because at least one vote should have been received by the
Nacionalista candidates, i.e., the vote of the Nacionalista inspector. It is, of course, "possible" that such
inspector did not like his party's senatorial line-up; but it is not probable that he dislikedall of such
candidates, and it is not likely that he favored all the eight candidates of the Liberal Party. Therefore,
most probably, he was made to sign an obviously false return, or else he betrayed his party, in which
case, the election therein if any was no more than a barefaced fraud and a brazen contempt of the
popular polls.

Of course we agree that frauds in the holding of the election should be handled and finally settled
by the corresponding courts or electoral tribunals. That is the general rule, where testimonial or
documentary evidence, is necessary; but where the fraud is so palpable from the return itself (res ipsa
loquitur the thing speaks for itself), there is no reason to accept it and give it prima facie value.

At any rate, fraud or no fraud, the verdict in these fifty precincts may ultimately be ascertained before
the Senate Electoral Tribunal.4 All we hold now, is that the returns show "prima facie" that they do not
reflect true and valid reports of regular voting. The contrary may be shown by candidate Climaco in
the corresponding election protest.

The well-known delay in the adjudication of election protests often gave the successful contestant a
mere pyrrhic victory, i.e., a vindication when the term of office is about to expire, or has expired. And
so the notion has spread among candidates for public office that the "important thing" is the
proclamation; and to win it, they or their partisans have tolerated or abetted the tampering or the
"manufacture" of election returns just to get the proclamation, and then let the victimized candidate to
file the protest, and spend his money to work for an empty triumph.

It is generally admitted that the practice has prevailed in all previous elections. Never was the point
pressed upon us in a more clear-cut manner. And without, in any way, modifying our stand as outlined
in the Nacionalista Party vs. Commission decision, we feel the mores of the day require application
even extension of the principle in the Mitchell decision, which is realistic and common sensical
even as it strikes a blow at such pernicious "grab - the - proclamation - prolong - the - protest" slogan
of some candidates or parties.

It is strongly urged that the results reported in these returns are quite "possible", bearing in mind the
religious or political control of some leaders in the localities affected. We say, possible, not probable. It
is possible to win the sweepstakes ten times; but not probable. Anyway, judges are not disposed to
46 | P a g e
believe that such "control" has proved so powerful as to convert the electors into mere sheep or robots
voting as ordered. Their reason and conscience refuse to believe that 100% of the voters in such
precincts abjectly yet lawfully surrendered their precious freedom to choose the senators of this
Republic.

Indeed, social scientists might wonder whether courts could, consistently with morality and public
policy,5 render judgment acknowledging such "control" or validating such "controlled votes" as
candidate Climaco chose to call them.

In view of the foregoing, and overlooking some intemperate language which detracts from the force of
the arguments, we hereby deny the motion to reconsider our resolution of December 24, 1965, as well
as the petition for a re-hearing.

CASTROMAYOR VS. COMELEC, G.R. No. 120426 November 23, 1995

MENDOZA, J.:

This is a petition for certiorari, prohibition, and mandamus seeking to set aside a resolution of the
Commission on Elections (COMELEC) which directs the Municipal Board of Canvassers of Calinog,
Iloilo to reconvene for the purpose of annulling the proclamation of petitioner Nicolas C. Castromayor
as councilor of that municipality and of proclaiming the winner after a recomputation of the votes.

Petitioner was a candidate for a seat in the eight-member Sangguniang Bayan of the municipality of
Calinog, Iloilo in the elections held on May 8, 1995.

After the votes had been cast, the Municipal Board of Canvassers (MBC) convened at 6:00 p.m. of that
day and began the canvass of the election returns from the different precincts in the municipality. The
canvassing lasted well into the night of May 9, 1995. The totals of the votes cast were checked by the
Municipal Accountant who acted as recorder of votes.1

On May 10, 1995, the winners were proclaimed on the basis of the results of the canvass which showed
that petitioner received 5,419 votes and took eighth place in the election for members of the
Sangguniang Bayan. 2

However, when Alice M. Garin, Chairman of the MBC, rechecked the totals in the Statement of Votes
the following day, she discovered that the number of votes cast for Nilda C. Demorito, as member of
the Sangguniang Bayan, was 62 more than that credited to her. As Garin later explained to the
Provincial Election Supervisor, the returns from one precinct had been overlooked in the computation
of the totals.3 Two employees of the Treasurer's Office, who were assigned to post the returns on the
tally board outside the municipal building, also discovered the error and reported it to Garin.

47 | P a g e
As matters stood, therefore the total number of votes cast for Demorito was 5,470, or 51 more than the
5,419 votes cast for petitioner.4

Garin reported the matter to the Regional Election Director, Atty. Rodolfo Sarroza, who advised her to
request authority from the COMELEC to reconvene for the purpose of correcting the error.

On May 13, 1995, a fax letter was sent to the Law Department of the COMELEC in Manila. The letter
explained the problem and asked for authority for the MBC to reconvene in order to correct the error,
annul the proclamation of petitioner and proclaim Demorito as the eighth member of the Sangguniang
Bayan.

A formal letter was later sent to the COMELEC on May 17, 1995.

On May 23, 1995, the COMELEC issued the following resolution:

95-2414. In the matter of the Fax-letter dated 13 May 1995 from Election
Officer Alice M. Carin [sic], requesting for an authority to reconvene the
MBC of Calinog, Iloilo to annul the proclamation of Nicolas Castromayor
for the No. 8 place for councilor and to proclaim Nilda C. Demorito as the
duly elected number eight (8) SB member of said municipality,

RESOLVED:

1 To direct the Municipal board of Canvassers of said municipality to reconvene to annul

the proclamation of Nicolas C. Castromayor for the number 8 place for councilor; and

2 To proclaim the winning number eight (8)councilor, and to submit compliance hereof
within five (5) days from receipt of notice. 5

On May 25, 1995, not yet apprised of the resolution of the COMELEC en banc, Garin sent a letter to
petitioner Castromayor, informing him of the error in the computation of the totals and of the request
made by the MBC for permission to reconvene to correct the error.

Petitioner protested the proposed action in a letter dated June 5, 1995 to COMELEC Executive
Director Resurreccion A. Borra. He questioned the legality of the actuations of Garin as stated in her
letter.6

On June 9, 1995, the MBC was informed by fax of the COMELEC's action on its request.7

Accordingly on June 14, 1995, the MBC sent notices to the parties concerned that it was going to
reconvene on June 22, 1995, at 10:00 a.m., at the Session Hall of the Sangguniang Bayan, to make a
correction of errors.

Hence this petition to annul COMELEC Resolution No. 95-2414.

Petitioner complains that the COMELEC en banc issued the resolution in question without notice and
hearing, solely on the basis of the fax letter of the MBC. He claims that even if the matter were treated
as a preproclamation controversy, there would nonetheless be a need for hearing, with notice to him
48 | P a g e
and an opportunity to refute any contrary argument which might be presented. He invokes the ruling of
this Court in Bince, Jr. v. COMELEC8 that the COMELEC is "without power to partially or totally
annul a proclamation suspend the effects of a proclamation without notice and hearing."

Petitioner's contention is well taken. That is why upon the filing of the petition in this case, we issued a
temporary restraining order against respondents enjoining them from enforcing the resolution of the
COMELEC. Public respondents, through the Solicitor General, now claim, however,

that said resolution merely stated the purpose of the reconvening of respondent Board,
and that the process and hearing for the annulment of petitioner's proclamation, due to
mistake in computing the votes of Sangguniang Bayan candidate Nilda Demorito, will
formally take place when respondent Board reconvenes, at which time and place,
petitioner was already informed of (see Annex E, Petition).

xxx xxx xxx

In the aforesaid reconvening, petitioner would have been free to interpose all his
objections, and discuss his position regarding the matter. 9

To be sure, the COMELEC did not itself annul the proclamation of petitioner, but, by "direct[ing] the
Municipal Board of Canvassers of said municipality to reconvene to annul the proclamation of Nicolas
C. Castromayor," the COMELEC in effect did so. After all, the authority of the COMELEC was sought
because, without such authority, the MBC would not have the power to annul the proclamation of
petitioner.

Be that as it may and in order to obviate the necessity of remanding this case to the COMELEC for
further proceedings in accordance with due process, we will accept this representation of the public
respondents that what the COMELEC resolution contemplates is a hearing before the MBC at which
petitioner will be heard on his objection and that only if warranted will the MBC be authorized to set
aside the proclamation of petitioner previously made on May 10, 1995. We find this to be the expedient
course of action to take, considering that, after all, in its notice to the candidates, the MBC did not state
that it was going to reconvene to annul petitioner's proclamation and make a new one but only that it
was going to do so "for the correction of the errors noted in the Statement of Votes Per
Precinct/Municipality." 10

The proceedings before the MBC should be summary. Should any party be dissatisfied with the ruling
of the MBC, the party concerned shall have a right to appeal to the COMELEC en banc, in accordance
with Rule 27, 7 of the COMELEC Rules of Procedure, which provides as follows:

7. Correction of Errors in Tabulation or Tallying of Results by the Board of Canvassers.

(a) Where it is clearly shown before proclamation that manifest errors were
committed in the tabulation or tallying of election returns, or certificates of canvass,
during the canvassing as where (1) a copy of the election returns of one precinct or two or
more copies of a certificate of canvass were tabulated more than once, (2) two copies of
the election returns or certificate of canvass were tabulated separately, (3) there was a
mistake in the adding or copying of the figures into the certificate of canvass or into the
statement of votes by precinct, or (4) so-called election returns from non-existent
precincts were included in the canvass, the board may motu propio, or upon verified
49 | P a g e
 petition by any candidate, political party, organization or coalition of political
parties, after due notice and hearing, correct the errors committed.

(b) The order for correction must be made in writing and must be promulgated.

(c) Any candidate, political party, organization or coalition of political parties aggrieved
by said order may appeal therefrom to the Commission within twenty-four (24) hours
from the promulgation.

(d) Once an appeal is made, the board of canvassers shall not proclaim the winning
candidates, unless their votes are not affected by the appeal.

(e) The appeal must implead as respondents the Board of Canvassers concerned and all
parties who may be adversely affected thereby.

(f) Upon receipt of the appeal, the Clerk of Court concerned shall forthwith issue
summons, together with a copy of the appeal, to the respondents.

(g) The Clerk of Court concerned shall immediately set the appeal for hearing.

(h) The appeal shall be heard and decided by the Commission en banc.

Athough this provision applies to preproclamation controversies and here the proclamation of
petitioner has already been made, there is nothing to suggest that it cannot be applied to cases like the
one at bar, in which the validity of the proclamation is precisely in question. On the contrary,
in Duremdes v. COMELEC, 11 this Court sustained the power of the COMELEC en banc to order a
correction of the Statement of Votes to make it conform to the election returns in accordance with a
procedure similar to the procedure now embodied in Rule 27, 7. If the Rule was not applied, it was
only because it was adopted after that case had arisen. Otherwise, as we said there, this procedure "best
recommends itself specially considering that the Statement of Votes is a vital component in the
electoral process."

Indeed, since the Statement of Votes forms the basis of the Certificate of Canvass and of the
proclamation, any error in the statement ultimately affects the validity of the proclamation. It begs the
question, therefore, to say that this is not a preproclamation controversy and the procedure for
preproclamation controversies cannot be applied to the correction in the computation of the totals in the
Statement of Votes.

It should be pointed out, in this connection, that what is involved here is a simple problem of
arithmetic. The Statement of Votes is merely a tabulation per precinct of the votes obtained by the
candidates as reflected in the election returns. In making the correction in computation, the MBC will
be acting in an administrative capacity, under the control and supervision of the COMELEC. Hence
any question pertaining to the proceedings of the MBC may be raised directly to the COMELEC en
banc in the exercise of its constitutional function to decide questions affecting elections.

What has just been said also disposes of petitioner's other contention that because his proclamation has
already been made, any remedy of the losing party is an election protest. As held in the Duremdes case:

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 It is DUREMDES' further submission that this proclamation could not be declared null
and void because a pre-proclamation controversy is not proper after a proclamation has
been made, the proper recourse being an election protest. This is on the assumption,
however, that there has been a valid proclamation. Where a proclamation is null and void,
the proclamation is no proclamation at all and the proclaimed candidate's assumption of
office cannot deprive the COMELEC of the power to declare such nullity and annul the
proclamation. (Aguam vs. COMELEC, L-28955, 28 May 1968, 23 SCRA 883). 12

WHEREFORE, the petition is DISMISSED and the Temporary Restraining Order previously issued is
hereby LIFTED.

SO ORDERED.

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