G.R. No.
150605 December 10, 2002 Government of Ormoc to extract, haul and distribute gravel and sand to the
EUFROCINO M. CODILLA, SR., petitioner,
vs.
HON. JOSE DE VENECIA, ROBERTO P. NAZARENO, in their official
capacities as Speaker
and Secretary-General of the House of Representatives, respectively,
and MA. VICTORIA L. LOCSIN, respondents.
DECISION
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 4th 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 Disqualification1 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
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 COMELEC's 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.
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.
1
On the same day, May 18, 2001, the COMELEC Second Division issued
an Ex-Parte Order13 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 Locsin's 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 petitioner's
Motion and the parties were ordered to submit their respective
memoranda.25 On June 4, 2001, petitioner submitted his Memorandum26 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;30and (e) Affidavits of
Demetrio Brion,31 Igmedio Rita32 and Gerardo Monteza.33 Respondent
Locsin's memorandum also contained additional affidavits of his witnesses. 34
Petitioner's Motion to Lift the Order of Suspension, however, was not
resolved. Instead, on June 14, 2001, the COMELEC Second Division
promulgated its Resolution35 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 Reconsideration38from 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
2
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 Manifestation42 stating that he
was deprived of a fair hearing on the disqualification case because while the
documentary evidence adduced in his 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
witnesses43 which he claims would refute and substantially belie the
allegations of petitioner's/intervenor's witnesses. A Reply, 44 Rejoinder45 and
Sur-Rejoinder46were 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 petitioner's 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 Codilla's motion for
reconsideration on the ground that "[T]he people of Leyte have spoken and I
respect the electorate's 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
3
 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 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
(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,
4
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.53Relying 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
Order55 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
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 Memorandum59 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 letter61 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 letter62 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,
5
the only consideration, that effectively deters the HOUSE's 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 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 opinions65 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
6
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.
88169 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 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 2.c having spent in his election campaign an amount in
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. 340270 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;
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
(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
7
 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.
(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 petitioner's 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:
8
"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 petitioner's 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."
Respondent's 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. 664673 requires that the
suspension must be "upon motion by the complainant or any intervenor", viz:
"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 petitioner's proclamation.
Petitioner was served a copy of the Second Motion again by registered mail.
A registry receipt76 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 candidate's guilt is strong. In the case at
bar, the COMELEC Second Division did not make any specific finding
that evidence of petitioner's 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 (2 nd 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
9
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 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
Codilla's 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 Codilla's
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 petitioner's 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
10
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
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 it's 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 inducing the
voters to vote for him. The same could be said about the affidavits of Randy
T. Merin,88 Alfredo C. De la Peña,89 Miguel P. Pandac,90 Paquito Bregeldo,
Cristeta Alferez , Glicerio Rios,91 Romulo Alkuino, Sr.,92 Abner Casas,93 Rita
Trangia,94 and Judith Erispe95 attached to respondent Locsin's 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
11
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 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, 200198 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.
12
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 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;
13
 (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."
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 people's 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 people's 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
14
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
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 respondent's 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
Division's 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 Locsin's
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 respondent's
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."
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
15
 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 4th 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 respondent's 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.
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
16
Whether it is the ministerial duty of the public respondents to constitutional body with jurisdiction on the matter. The rule of law demands
that its Decision be obeyed by all officials of the land. There is no
recognize petitioner Codilla, Sr. as the legally elected Representative alternative to the rule of law except the reign of chaos and confusion.

of the 4th legislative district of Leyte vice respondent Locsin. 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
Under Rule 65, section 3 of the 1997 Rules of Civil Procedure, any person 4th legislative district of Leyte. Public respondent Secretary-General shall
may file a verified petition for mandamus "when any tribunal, corporation, likewise register the name of the petitioner in the Roll of Members of the
board, officer or person unlawfully neglects the performance of an act which House of Representatives after he has taken his oath of office. This decision
the law specifically enjoins as a duty resulting from an office, trust, or station, shall be immediately executory.
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 SO ORDERED.
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

17
CASE DIGEST:
G.R. No. 150605/December 10, 2002
EUFROCINO M. CODILLA, SR v HON. JOSE DE VENECIA, ROBERTO P.
NAZARENO and MA. VICTORIA L. LOCSIN
FACTS:
Petitioner Codilla and respondent Locsin were candidates for the position of
Representative of the 4th legislative district of Leyte during the May 14, 2001
elections. 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 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. 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. 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.
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.
On May 18, 2001, respondent Locsin filed a Second Most Urgent Motion to
Suspend Proclamation of Respondent.
On May 25, 2001, petitioner filed a Motion to Lift Order of Suspension.
Petitioner's Motion to Lift the Order of Suspension, however, was not resolved.
Instead, on June 14, 2001, the COMELEC Second Division promulgated its
Resolution in SPA No. 01-208.
By virtue of the said Resolution, the votes cast for petitioner, totaling 71,350,
were declared stray even before said Resolution could gain finality.
Respondent Locsin took her oath of office on June 18, 2001 and assumed
office on June 30, 2001.
On June 21, 2001, petitioner filed with the COMELEC en banc a Petition for
Declaration of Nullity of Proclamation.
On June 28, 2001, petitioner filed an Urgent Manifestation stating that he was
deprived of a fair hearing on the disqualification case. 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:
Respondent Locsin did not appeal from this decision annulling her
proclamation. Instead, she filed a "Comment and Manifestation" with the
COMELEC en banc questioning the procedure and the manner by which the
decision was issued.
On September 6, 2001, the COMELEC en banc issued an Order constituting
the members of the Provincial Board of Canvassers of Leyte to implement the
aforesaid decision.
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.
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.
In response, Speaker De Venecia sent a letter dated October 30, 2001, stating
that:
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)
ISSUES:
(a) Whether the proclamation of respondent Locsin by the COMELEC Second
Division is valid
18
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.
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.
(a) Petitioner was not notified of the petition for his disqualification
through the service of summons nor of the Motions to suspend 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.
(c) the Resolution of the COMELEC Second Division disqualifying the
petitioner is not based on substantial evidence.
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.
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. They are criminal
and not administrative in nature.
(d) Exclusion of the votes in favor of the petitioner and the proclamation
of respondent Locsin was done with undue haste.
Second. The votes cast in favor of the petitioner cannot be considered
"stray" and respondent cannot be validly proclaimed on that basis.
(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. 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.
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 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:
19
(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)
(b) Respondent Locsin, as a mere second placer, cannot be proclaimed.
In every election, the people's 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.
In Domino v. COMELEC, 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 people's
right to elect officials of their choice."
(b) Whether said proclamation divested the COMELEC en banc of jurisdiction
to review its validity
We find no merit in these contentions.
First. The validity of the respondent's proclamation was a core issue in
the Motion for Reconsideration seasonably filed by the petitioner.
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."
Second. It is the House of Representatives Electoral Tribunal (HRET)
which has no jurisdiction in the instant case.
(a) The issue on the validity of the Resolution of the COMELEC Second
Division has not yet been resolved by the COMELEC en banc.
In Puzon vs. Cua, 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.
A petition for quo warranto may be filed only on the grounds of ineligibility and
disloyalty to the Republic of the Philippines. 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.
20
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.
(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.
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." 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.
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.
RULING:
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 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.

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.

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

21
[G.R. No. 142038. September 18, 2000]
ROLANDO E. COLUMBRES, petitioner, vs. COMMISSION ON
ELECTIONS and HILARIO DE GUZMAN, JR., respondents.
DECISION
BUENA, J.:
This petition for certiorari seeks the nullification of the COMELEC En Banc
Resolution dated January 25, 2000 which affirmed the Resolution of the
Second Division setting aside the decision of the Regional Trial Court of
Dagupan City, Branch 40 in Election Case No. D- 31-98 annulling the election
and proclamation of private respondent Hilario de Guzman, Jr. as Mayor of
San Jacinto, Pangasinan in the May 11, 1998 elections.
Petitioner Rolando Columbres and private respondent Hilario de Guzman, Jr.
were candidates for the position of Mayor of San Jacinto, Pangasinan during
the May 11, 1998 elections. After canvassing, the Municipal Board of
Canvassers proclaimed private respondent with 4,248 votes as against
petitioner's 4,104 votes. Subsequently, petitioner filed an election protest with
the Regional Trial Court docketed as Election Case No. D-31-98. Petitioner
contested 42 precincts and prayed for the revision of ballots in the said
precincts.
On December 7, 1998, the trial court rendered its decision, declaring petitioner
as the duly elected mayor of San Jacinto, Pangasinan with 4,037 votes against
3,302 votes of private respondent.
Private respondent appealed the decision to the respondent COMELEC. The
case was docketed as COMELEC EAC No. A-20-98 and raffled to the
COMELEC Second Division.
On October 5, 1999, the Second Division promulgated its Resolution reversing
and setting aside the decision rendered by the Regional Trial Court and,
instead, affirmed the election and proclamation of private respondent. Private
respondent was declared to have won by sixty-nine (69) votes.
Petitioner filed a motion for reconsideration with respect to the ruling of the
COMELEC Second Division, validating 120 marked ballots in favor of private
respondent, despite absence of evidence, to prove that the marks have been
placed on the ballots by third persons other than the voters themselves.
Petitioner likewise moved for a reconsideration of the decision with respect to
the 111 ballots found by the trial court to have been written by two persons,
but not so ruled upon by the Second Division, again in favor of private
respondent. Lastly, petitioner claimed that the Second Division erred in totally
disregarding his other objections and therefore urged the COMELEC EN
BANC to review the findings of the Second Division.
On January 25, 2000, the respondent COMELEC En Banc issued its
Resolution denying petitioner's motion for reconsideration and affirming the
ruling of the Second Division.
In resolving petitioner's Motion for Reconsideration, the respondent
COMELEC En Banc, in the herein assailed Resolution, said:
"xxx Protestant-appellee alleges that there were 124 ballots which were
written by two (2) persons, and as such they should all be annulled. Instead,
the Commission (Second Division) annulled only 13 ballots while validating
111 ballots in favor of protestee-appellant Hilario de Guzman, Jr. Movant
contends that the 13 ballots commonly invalidated by both the COMELEC
(Second Division) and the trial court as having been written by two persons
were no different from the 111 ballots validated by the Commission (Second
Division) but invalidated by the trial court.
"x x x x x x x x x
"xxx The finding by the Commission (Second Division) that the 111 questioned
ballots were written by the same person is a finding of fact that may not be the
subject of a motion for reconsideration. Movant protestant-appellee is not
challenging the sufficiency of the evidence in this instance but the appreciation
thereof by the Commission (Second Division)."[1]
"xxx Movant protestant-appellee (also) contends that there were 120 ballots
erroneously validated by the Commission (Second Division) which were
admittedly marked. He argues that whenever ballots contain markings very
obvious and visible on their faces, the presumption is that the said markings
on the ballots were placed thereat by the voter themselves - thus nullifying the
said ballots. Stated otherwise, protestant-appellee argues that the purported
markings on the questioned ballots are presumed to have been placed there
by the voters themselves and, unless proven otherwise, nullifies the ballots.
22
"We disagree. The movant is relying on an erroneous and misleading
presumption. The rule is that no ballot should be discarded as marked unless
its character as such is unmistakable. The distinction should always be
between marks that were apparently, carelessly, or innocently made, which
do not invalidate the ballot, and marks purposely placed thereon by the voter
with a view to possible future identification of the ballot, which invalidate it.
(Cacho vs. Abad, 62 Phil. 564). The marks which shall be considered sufficient
to invalidate the ballot are those which the voter himself deliberately placed
on his ballot for the purpose of identifying it thereafter (Valenzuela vs. Carlos,
42 Phil. 428). In other words, a mark placed on the ballot by a person other
than the voter himself does not invalidate the ballot as marked. (Tajanlangit
vs. Cazenas, 5 SCRA 567)"[2]
Hence, the present petition.
Petitioner raises two issues:
1. Whether or not, the findings of fact of the COMELEC Division, especially so
in matters of appreciation of ballots, is absolute and cannot be the subject of
a Motion for Reconsideration before the COMELEC En Banc; and
2. Whether or not, in appreciation of ballots, when a ballot is found to be
marked, absent any evidence aliunde, there is the presumption that the
markings were placed by a third person, and therefore, should not invalidate
the ballot.
On the first issue, indeed, the COMELEC erred when it declared that
"xxx it is emphatic that the grounds of motion for reconsideration should
consist of insufficiency of evidence to justify the decision, order or ruling; or
that the said decision, order or ruling is contrary to law. Nowhere in the
provision can finding of fact be the subject of motion for reconsideration. The
finding by the Commission (Second Division) that the 111 questioned ballots
were written by the same person is a finding of fact that may not be the subject
of a motion for reconsideration. Movant protestant-appellee is not challenging
the sufficiency of the evidence in this instance but the appreciation thereof by
the Commission (Second Division)."[3]
Section 1, Rule 19 of the COMELEC Rules of Procedure reads:
"Section 1. Grounds of 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."
Commissioner Dy-Liaco, in her Dissenting Opinion, correctly opined, and we
quote:
"I dissent in part from the majority conclusion that finding of facts on the one
hundred eleven (111) questioned ballots cannot be the subject of a motion for
reconsideration considering that the movant protestant/appellee 'is not
challenging the sufficiency of evidence in this instance but the appreciation
thereof by the Commission (Second Division).' Protestant/Appellee in his
discussion of his motion for reconsideration (p. 205 of the records of the case/
p. 24 of the MR pleading) imploring the Commission En Banc to review, re-
examine and re-inspect the 111 ballots where the Trial Court and the Division
disagreed and make its own final findings and determination, in effect disputes
the ruling of the Second Division implying that the appreciation is contrary to
law. Rule 19, Sec. 1 of the COMELEC Rules of Procedure enumerates the
grounds that may be raised in motions for reconsideration and one of which is
that the decision, order or ruling is contrary to law. Insufficiency of evidence to
justify the decision, order, or ruling is not the only ground for the filing of
motions for reconsideration. xxx
"When protestant/appellee argued that the appreciation of the Division is
erroneous, there is the implication that such finding or ruling is contrary to law
and thus, may be a proper subject of a motion for reconsideration."
To determine the winning candidate, the application of election law and
jurisprudence in appreciating the contested ballots, is essential. Any question
on the appreciation of the ballots would directly affect the sufficiency of the
evidence supporting the declared winner. As the Solicitor General submits in
his comment on the petition, any question on the sufficiency of the evidence
supporting the assailed decision, order or ruling of a COMELEC Division is
also a proper subject of a motion for reconsideration before the COMELEC en
banc.
Moreover, the opposing conclusions of the trial court and the COMELEC
Second Division should have prompted the COMELEC en banc to undertake
an independent appreciation of the contested ballots to see for itself which of
the conflicting rulings is valid and should be upheld.
Be that as it may, it is our considered opinion, and we rule, that the COMELEC
en banc gravely abused its discretion in declaring that the COMELEC
23
Division's findings on the contested ballots are findings of facts "that may not
be the subject of a motion for reconsideration".
On the second issue, petitioner argues that the findings, both by the trial court
as well as the COMELEC's Second Division, are similar - that said 120 ballots
(Exhs "R," "R-1" and series) indeed, had markings but the trial court and the
COMELEC Second Division differed in their conclusion. The trial court nullified
the ballots (supposedly in favor of herein private respondent) for being
admittedly marked. On the other hand, the Second Division declared the
ballots valid because the marks were allegedly placed by third person/s,
purposely to invalidate the ballots. Petitioner alleges that respondent
COMELEC en banc gravely abused its discretion in presuming that the
markings found on the ballots have been made by third persons, absent
concrete evidence showing that they were placed by the voters themselves.
Petitioner is correct that there is no such presumption in law. Instead, the legal
presumption is that the sanctity of the ballot has been protected and
preserved. Where the ballot, however, shows distinct and marked
dissimilarities in the writing of the names of some candidates from the rest,
the ballot is void for having been written by two hands.[4] A ballot appearing
to have been written by two persons is presumed to have been cast "as is"
during the voting, and this presumption can only be overcome by showing that
the ballot was tampered with after it was deposited in the ballot box.[5]
If the COMELEC Second Division found markings in the contested 111 ballots
that were placed by persons other than the voters themselves, then it should
not have validated them. To rule the way it did, would require a showing that
the integrity of ballots has not been violated. Otherwise, the presumption that
they were placed "as is" in the ballot box stands.
In his Comment, the Solicitor General raised the following significant
questions: "In the absence of showing that the ballot boxes were violated and
that somebody else had access to the ballots, how was the COMELEC able
to conclude that indeed said marks were placed by persons other than the
voters?" Indeed, the poll body is mum on how third persons were able to
access the questioned ballots. Furthermore, the COMELEC Second Division
neither made a categorical finding as to whether the different markings on the
ballots were deliberately placed so as to sufficiently identify them or not. Yet,
the COMELEC en banc simplistically concluded that there was "nothing left
for xxx [it] but to affirm the VALIDITY of the questioned 120 ballots in favor of
protestee-appellant Hilario de Guzman, Jr."
In view of the foregoing circumstances, it appears that the COMELEC en banc
was remiss in its duties to properly resolve the Motion for Reconsideration
before it. It should have given a close scrutiny of the questioned ballots and
determined for itself their validity, i.e., whether they were marked ballots or
not. There is truly a need to actually examine the questioned ballots in order
to ascertain the real nature of the alleged markings thereon. One has to see
the writings to be able to determine whether they were written by different
persons, and whether they were intended to identify the ballot.
WHEREFORE, the case is hereby remanded to the COMELEC en banc for it
to physically re-examine the contested ballots and ascertain their validity. It is
further directed to resolve this case within thirty (30) days from receipt of this
decision in view of the proximity of the next elections.
This decision is immediately executory.
SO ORDERED.
CASE DIGEST:
Columbres vs. COMELEC
G.R. No. 142038, September 18, 2000
Two issues: (1) Whether the findings of fact of the COMELEC Division,
especially in matters of appreciation of ballots, is absolute and cannot be the
subject of a motion for reconsideration before the COMELEC en banc;
(2) Whether in appreciation of ballots, when a ballot is found to be
marked, absent any evidence aliunde, there is the presumption that the
markings were placed by a third person, and therefore, should not invalidate
the ballot.
HELD:
(1) No. What is being challenged is not the sufficiency of evidence but the
appreciation thereof by the COMELEC Division. If the appreciation of the
Division is erroneous, there is the implication that such finding or ruling is
contrary to law and thus, may be a proper subject of a motion for
reconsideration.
(2) No. There is no such presumption in law. Instead, the legal presumption is
that the sanctity of the ballot has been protected and preserved.
The case was remanded back to the COMELEC en banc.
24
MAYOR IBARRA R. MANZALA, Vs COMELEC
G.R. No. 176211
May 8, 2007
x ---------------------------------------------------------------------------------------- x
DECISION
AZCUNA, J.:
This is a petition for certiorari and prohibition with prayer for the issuance of
a temporary restraining order (TRO), or status quo ante order, and/or writ of
preliminary injunction.
Petitioner Ibarra R. Manzala seeks to annul the resolution, dated August 24,
2006, of the Former Second Division[1] of the Commission on Elections
(COMELEC), declaring private respondent Julie R. Monton to be the duly
elected Municipal Mayor of Magdiwang, Romblon in the May 10, 2004
National and Local Elections, and the resolution of the COMELEC en
banc,[2] dated January 24, 2007, denying petitioners motion for
reconsideration and affirming the Resolution of August 24, 2006 with
modification as to the number of votes obtained by both parties after re-
appreciation.
The antecedents are as follows:
Petitioner Ibarra R. Manzala and private respondent Julie R. Monton were
mayoralty candidates in the Municipality of Magdiwang, Romblon, during the
May 10, 2004 National and Local Elections. On May 13, 2004, the Municipal
Board of Canvassers proclaimed private respondent as the duly elected
Municipal Mayor with 2,579 votes, or a margin of 13 votes, over petitioners
2,566 votes.
On May 19, 2004, petitioner filed an election protest with the Regional Trial
Court of Romblon, Branch 81 (Election Protest Case No. 7), seeking recount
in the 10 precincts of Magdiwang on the grounds of fraud, serious
irregularities, and willful violation of the Omnibus Election Code (Batas
Pambansa Bilang 881) and other pertinent COMELEC rules allegedly
committed by the voters and the Chairman and members of the Board of
Election Inspectors during the election.
Private respondent filed an Answer with Counter-Protest and Counterclaim,
averring that the election was held peacefully with no irregularity whatsoever.
By way of counter-protest, private respondent contested the election in
certain precincts, to wit: Precincts 41A, 40A, 39A, 38A, 37A, 36A and 35A of
Barangay Tampayan; Precincts 1A, 2A, 3A, 4A, 5A, 6A, 7A, 8A, 9A and 9B
of Barangay Poblacion; Precinct 16A of Barangay Agutay; Precinct 24A of
Barangay Dulangan; and Precinct 32A of Barangay Jao-asan.
Thereafter, petitioner filed a Reply and Answer to the Counter-Protest and
Counterclaim.
A revision of ballots was later conducted. In its decision of December 8,
2005, the trial court rendered judgment in favor of petitioner, thus:
WHEREFORE, premises considered, protestant IBARRA R. MANZALA is
hereby proclaimed as the duly-elected Municipal Mayor of Magdiwang,
Romblon during the election of May 10, 2004 who won over protestee JULIE
R. MONTON with a majority of 137 valid votes and is entitled to occupy said
position. The proclamation by the MUNICIPAL BOARD OF CANVASSERS
of Magdiwang, Romblon that JULIE R. MONTON was the duly-elected
MAYOR is hereby ANNULLED.
SO ORDERED.[3]
Petitioner moved for the execution of the decision pending appeal which the
trial court granted on December 16, 2005.
On appeal, private respondent raised the following assignment of errors: that
the trial court seriously erred in invalidating 144 votes of private respondent
ostensibly on the ground of pattern voting; that sets of ballots were marked,
as well as written by two persons; that the trial court erred in not considering
and appreciating the objections raised by private respondent involving the
counter-protested precincts, and in arriving at its decision, it considered only
the objections and/or exhibits of the petitioner; and that the trial court
seriously erred when it declared petitioner as the duly elected Municipal
Mayor of Magdiwang, Romblon despite the patent defects in the appealed
decision.
On August 24, 2006, the Former Second Division of the COMELEC issued a
Resolution which reversed and set aside the decision of the trial court. It
found that private respondent obtained 2,560 votes, or a margin of 17 votes,
over petitioners 2,543 votes. The dispositive portion of the Resolution reads:
WHEREFORE, the instant appeal is hereby GRANTED. The December 8,
2005 Decision of the Regional Trial Court, Fourth Judicial Region, Branch
81, Romblon, Romblon in Election Protest Case No. 7 is hereby REVERSED
and SET ASIDE.
ACCORDINGLY, the Commission (Former Second Division) hereby
DECLARES protestee-appellant JULIE E. MONTON, the duly-elected
25
Municipal Mayor of Magdiwang, Romblon during the May 10, 2004 National
and Local Elections.
SO ORDERED.[4]
Petitioners motion for reconsideration was denied by the COMELEC en
banc in its Resolution of January 24, 2007. It affirmed the earlier Resolution
dated August 24, 2006 which proclaimed private respondent as the duly
elected Municipal Mayor with modification as to the number of votes
obtained by both parties after re-appreciation, i.e., private respondent
garnered 2,535 votes, or a margin of 60 votes, over petitioners 2,475 votes.
Meanwhile, acting on private respondents Motion for Immediate Execution
and Issuance of an Entry of Judgment, the COMELEC en banc issued a writ
of execution on February 28, 2007 declaring its Resolution of January 24,
2007 as final and executory as of February 26, 2007.
Consequently, in the Order dated March 1, 2007, the COMELEC en banc
directed the implementation of the writ of execution ordering petitioner to
cease and desist from discharging the powers and functions of the Office of
the Municipal Mayor of Magdiwang, Romblon; to relinquish and vacate the
post in favor of private respondent; and to cause the smooth turn-over of the
office to the latter.
On February 1, 2007, petitioner filed this petition for certiorari and prohibition
contending that the COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in declaring private respondent as
the duly elected Municipal Mayor of Magdiwang, Romblon with a prayer that
the COMELEC be directed to cease and desist from implementing the
challenged Resolutions of August 24, 2006 and January 24, 2007.
Private respondent maintains that to allow the arguments of the petitioner to
prevail would make him assume office by the grace of impropriety and
misappreciation of ballots by the lower court, whose decision has already
been reversed and set aside by the Former Second Division of the
COMELEC and affirmed by the Commission en banc.
The petition should be dismissed.
Petitioner argues that the motion for reconsideration filed with the Former
Second Division of the COMELEC has thrown the whole case wide open for
review as in a trial de novo in a criminal case, yet the COMELEC en banc
failed to conduct a thorough review of the contested ballots.
This argument has no basis. Section 2 (2) of Article IX-C of the Constitution
provides the COMELEC with quasi-judicial power to exercise exclusive
original jurisdiction over all contests relating to the elections, returns, and
qualifications of all elective regional, provincial, and city officials, and
appellate jurisdiction over all contests involving elective municipal officials
decided by trial courts of general jurisdiction, or involving elective barangay
officials decided by trial courts of limited jurisdiction. Decisions, final orders,
or rulings of the Commission on election contests involving elective
municipal and barangay offices shall be final, executory, and not appealable.
Section 3 thereof states the administrative power of the COMELEC, either
en banc or in two divisions, to 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 decisions shall be decided by
the Commission en banc.
Clearly, from the decision of the trial court, the COMELEC exercises
appellate jurisdiction to review, revise, modify, or even reverse and set aside
the decision of the former and substitute it with its own decision. In the
exercise of its adjudicatory or quasi-judicial powers, the Constitution also
mandates the COMELEC to hear and decide cases first by division and upon
motion for reconsideration, by the COMELEC en banc. Election cases
cannot be treated in a similar manner as criminal cases where, upon appeal
from a conviction by the trial court, the whole case is thrown open for review
and the appellate court can resolve issues which are not even set forth in the
pleadings. In the present case, the COMELEC en banc had thoroughly
reviewed the decision of its Former Second Division and affirmed the
findings thereof with modification as to the number of votes obtained by both
parties after re-appreciation, that is, private respondent obtained 2,535
votes, or a margin of 60 votes, over petitioners 2,475 votes.
Petitioner further contends that the trial courts judicial appreciation of the
contested ballots [should be] honored, respected, and given the importance
it deserves by [this] Court.
This contention has no merit. Section 2, Rule 64 of the Rules of Court states
that from a judgment or final order or resolution of the COMELEC, the
aggrieved party, herein petitioner, may file a petition for certiorari under Rule
65. Thus, in a special civil action of certiorari under Section 1 of Rule 65, the
only question that may be raised and/or resolved is whether or not the
COMELEC had acted with grave abuse of discretion amounting to lack or
excess of jurisdiction.[5] Such fact does not exist in the present case.
Moreover, the appreciation of the contested ballots and election documents
involves a question of fact best left to the determination of the COMELEC, a
26
specialized agency tasked with the supervision of elections all over the
country. To reiterate, the COMELEC is the constitutional commission vested
with the exclusive original jurisdiction over election contests involving
regional, provincial and city officials, as well as appellate jurisdiction over
election protests involving elective municipal and barangay officials.
Consequently, in the absence of grave abuse of discretion or any
jurisdictional infirmity or error of law, the factual findings, conclusions, rulings
and decisions rendered by the said Commission on matters falling within its
competence shall not be interfered with by this Court.[6]

Finally, to justify the issuance of an injunctive relief, petitioner claims that

there had been a misinterpretation and misapplication of the law by the
COMELEC and that should the facts and circumstances presented in this
petition be sufficiently persuasive, a writ of preliminary injunction or a
temporary restraining order be issued to prevent the public respondent
COMELEC from disrupting the stability of governance in the Municipality of
Magdiwang, Province of Romblon, in the meantime that the petition is being
reviewed.

As a consequence of the dismissal of the instant petition, petitioners prayer

for any form of injunctive relief, perforce, has no factual and legal basis.

WHEREFORE, the petition is DISMISSED for lack of showing that the

Commission on Elections committed any grave abuse of discretion in issuing
the assailed Resolution, dated August 24, 2006, by the Former Second
Division and the Resolution, dated January 24, 2007, by the Commission en
banc, which declared private respondent Julie R. Monton to be the duly
elected Municipal Mayor of Magdiwang, Romblon in the May 10, 2004
National and Local Elections.
Accordingly, the Commission on Elections en banc is DIRECTED to forthwith
cause the full implementation of the Writ of Execution it issued on February
28, 2007 and the Order of March 1, 2007.

In view of the proximity of the next National and Local Elections on May 14,
2007, this Decision is IMMEDIATELY EXECUTORY.

No costs.

SO ORDERED.

27
CASE DIGEST:
21. Manzala vs. Commission on Elections
G. R. No. 176211, May 8, 2007
Appellate jurisdiction of Comelec
FACTS: Petitioner Ibarra R. Manzala and private respondent Julie R. Monton
were mayoralty candidates in the Municipality of Magdiwang, Romblon,
during the May 10, 2004 National and Local Elections. On May 13, 2004, the
Municipal Board of Canvassers proclaimed private respondent as the duly
elected Municipal Mayor with 2,579 votes, or a margin of 13 votes, over
petitioners 2,566 votes.
On May 19, 2004, petitioner filed an election protest with the RTC of
Romblon seeking recount in the 10 precincts of Magdiwang on the grounds
of fraud, serious irregularities, and willful violation of the Omnibus Election
Code (Batas Pambansa Bilang 881) and other pertinent COMELEC rules
allegedly committed by the voters and the Chairman and members of the
Board of Election Inspectors during the election.
The trial court rendered judgment in favor of petitioner. Petitioner moved for
the execution of the decision pending appeal which the trial court granted on
December 16, 2005.
1. Yes. Decisions, final orders, or rulings of the Commission on
election contests involving elective municipal and barangay offices shall be
final, executory, and not appealable. In the exercise of its adjudicatory or
quasi-judicial powers, the Constitution also mandates the COMELEC to hear
and decide cases first by division and upon motion for reconsideration, by
the COMELEC en banc. Election cases cannot be treated in a similar
manner as criminal cases where, upon appeal from a conviction by the trial
court, the whole case is thrown open for review and the appellate court can
resolve issues which are not even set forth in the pleadings. In the present
case, the COMELEC en banc had thoroughly reviewed the decision of its
Former Second Division and affirmed the findings thereof with modification
as to the number of votes obtained by both parties after re-appreciation, that
is, private respondent obtained 2,535 votes, or a margin of 60 votes, over
petitioners 2,475 votes.
2. No. The appreciation of the contested ballots and election
documents involves a question of fact best left to the determination of the
COMELEC, a specialized agency tasked with the supervision of elections all
over the country. To reiterate, the COMELEC is the constitutional
commission vested with the exclusive original jurisdiction over election
contests involving regional, provincial and city officials, as well as appellate
jurisdiction over election protests involving elective municipal and barangay
officials.

On August 24, 2006, the Former Second Division of the COMELEC issued a
Resolution which reversed and set aside the decision of the trial court. It
found that private respondent obtained 2,560 votes, or a margin of 17 votes,
over petitioners 2,543 votes.

Petitioner’s motion for reconsideration was denied by the COMELEC En

Banc in its Resolution of January 24, 2007. It later affirmed the earlier
Resolution dated August 24, 2006.

On February 1, 2007, petitioner filed this petition for certiorari and

prohibition.

ISSUE:
1. WON COMELEC has appellate jurisdiction to review, revise,
modify, or even reverse and set aside the decision of the RTC?
2. WON the RTC’s ruling on the validity of the ballots should not be
disturbed

HELD:

28
G.R. No. 167033 April 12, 2006
ESTRELITA "NENG" JULIANO, Petitioner,
vs.
COMMISSION ON ELECTIONS AND MUSLIMIN SEMA, Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
This resolves the petition for certiorari, filed by Estrelita "Neng" Juliano
(petitioner), seeking to set aside the Order of the Commission on
Elections En Banc (COMELEC En Banc) dated February 10, 2005 which
affirmed the Resolution dated October 13, 2004 of the COMELEC 2nd
Division dismissing the pre-proclamation controversy filed by petitioner
Estrelita "Neneng" Juliano.
A thorough scrutiny of the records reveals that the narration of the
antecedent facts set forth in the COMELEC 2nd Division Resolution is
undisputed; hence, portions thereof are reproduced hereunder:
The factual allegations of both parties reveal that Cotabato City has a total of
five hundred seventy-seven (577) clustered polling precincts distributed
among thirty-seven (37) barangays; that the first City Board of Canvassers
chaired by Atty. Yogie Martirizar convened on May 10, 2004 and conducted
its proceedings until May 16, 2004; that on May 12, 2004, however,
petitioner filed an ex parte petition to replace membership of the first CBOC
and was granted by the Commission; that the second CBOC was chaired by
Atty. Jubil Surmieda and conducted canvassing proceedings from May 16 to
22, 2004; that petitioner also sought the transfer of the canvassing from the
Session Hall of the Sangguniang Panlungsod to the 6th ID camp, Awang,
Maguindanao; that the Surmieda Board also failed to finish the canvassing
and was replaced by another CBOC chaired by Atty. Lintang Bedol, which
conducted the canvassing from May 24 to May 29, 2004; that this
canvassing was interrupted by another petition filed by Juliano praying for
the transfer of the canvassing from Awang, Maguindanao to the Comelec
main office in Manila, which was again granted by the Commission; that the
new venue of the canvassing was held at the Session Hall of the Comelec
main office in Manila; that a notice was issued on May 29, 2004 by the Bedol
Board stating that the resumption of canvassing in Manila will be on
"Wednesday, June 2, 2004, at 2:00 o’clock in the afternoon"; that despite the
notice, the Bedol Board resumed its canvassing on June 1, 2004 at 1:45
p.m. at the Comelec Session Hall, promulgated its rulings on all contested
returns, denying all petitions for exclusion from canvass of the contested
returns, canvassed the election returns, then entered and tallied into the
statement of votes the figures and proclaimed the winning candidates;
that the Bedol Board proclaimed respondent Sema as the duly elected
Mayor of Cotabato City; that petitioner filed on June 2, 2004 a
consolidated petition to nullify canvass proceedings and/or
proclamation undertaken by the CBOC on June 1, 2004.
Petitioner raised the following issues as a ground to nullify respondent’s
proclamation, to wit:
1. Petitioner was never notified of the new and advanced schedule
of the resumption of canvassing in the Comelec Main Office,
Manila, hence, the proceedings was illegal;
2. There are 108 contested election returns which petitioner alleged
to be spurious and manufactured, and will adversely affect the
result of the election if the respective votes of the parties be
deducted from the final tally;
3. In relation to issue number 2, CBOC should have suspended the
proclamation as prescribed in Section 36, par. f of Resolution No.
6669 of the Commission;
4. There are 54 election returns included by the CBOC in the
canvassing but which were not part of the inventory conducted by
the Surmieda Board;1 (Emphasis supplied)
The COMELEC 2nd Division issued its Resolution dated October 13, 2004
ruling that:
x x x the allegations of the petitioner in relation to the 108 returns cannot be
properly resolved in this pre-proclamation controversy as it would require the
Commission to go beyond the face of the election returns, in order to find out
that the same were really manufactured and spurious. Furthermore, upon
perusal of the returns, We find the same to be in order. This finding is,
however, without prejudice to the filing of the proper election protest in order
that a thorough evaluation of the returns will be conducted, which may
include the examination of the signatures of the Board of Election
inspectors." 21avvphil.net
29
With regard to the alleged lack of notice to petitioner of the June 1, 2004
canvassing, the COMELEC 2nd Division held that petitioner should be
deemed notified of the June 1, 2004 canvassing because during said
proceedings, one of petitioner’s counsel, Atty. Javines, was present along
with petitioner’s watchers.
Thus, the dispositive portion, to wit:
WHEREFORE, premises considered, the present pre-proclamation
controversy praying for the nullification of the proclamation of respondent
Muslimin Sema is hereby DISMISSED for lack of merit, without prejudice,
however, to the filing of the proper election protest. 3
On October 23, 2004, petitioner filed a motion for
reconsideration.1avvphil.net On January 17, 2005, she filed her own Affidavit
of Disavowal, stating that she never engaged the legal services of Atty.
Ronald Javines (Annex "H")4 and the Affidavit of Atty. Ronald Javines,
corroborating petitioner’s statement in her affidavit (Annex "I"). 5
Petitioner’s motion for reconsideration was elevated to the COMELEC En
Banc and Commissioner Rufino S.B. Javier was assigned as ponente. A
Resolution under the ponencia of said Commissioner was issued on
February 10, 2005, the dispositive portion of which reads as follows:
WHEREFORE, premises considered, the Motion for Reconsideration is
hereby GRANTED. The Resolution of the Commission (Second Division)
promulgated last October 13, 2004 is REVERSED and SET ASIDE. The
proclamation of Respondent Muslimin Sema is ANNULLED as the
proceedings attendant thereto is illegal. The Election Records and Statistics
Division is hereby directed to conduct an examination whether or not the one
hundred eight (108) election returns involved in this case are, as claimed by
the petitioner, written by one. The examination must be done within ten (10)
days from receipt hereof and the ERSD should submit its report to the
Commission en banc on the matter within ten (10) days from termination of
the examination. Thereafter, the Commission en banc shall immediately
evaluate the report and set the case for hearing if there is a need therefore.
Forthwith, we shall issue a Resolution on the issue of exclusion of the
contested election returns. In the meantime, the vice-mayor shall temporarily
assume the position of Mayor of Cotabato City.6
However, only three members7 of the COMELEC En Banc voted in favor of
granting the Motion for Reconsideration, three members 8 dissented, and
one9 member took no part.
Section 6, Rule 18 of the Comelec Rules of Procedure provides:
Sec. 6. Procedure if Opinion is Equally Divided. – When the Commission en
banc is equally divided in opinion, or the necessary majority cannot be had,
the case shall be reheard, and if on rehearing no decision is reached, the
action or proceeding shall be dismissed if originally commenced in the
Commission; in appealed cases, the judgment or order appealed from shall
stand affirmed; and in all incidental matters, the petition or motion shall be
denied.
After "re-consultation", the members chose to maintain their votes. Upon
failing to obtain a majority vote on the Resolution dated February 10, 2005,
the COMELEC En Banc issued the Order also dated February 10, 2005, the
dispositive portion of which reads as follows:
PREMISES CONSIDERED, after due re-consultation of the results of the en
banc voting which remains to be 3:3:1, pursuant to Sec. 6, Rule 18 of the
Comelec Rules of Procedure, the resolution of the Second Division subject
of the Motion for Reconsideration is hereby AFFIRMED.
SO ORDERED.10
Hence, petitioner filed the present petition for certiorari raising the following
issues:
WHETHER OR NOT THE LACK OF NOTICE BY THE BEDOL BOARD TO
PETITIONER AND/OR PETITIONER’S COUNSEL ON THE RESUMPTION
OF CANVASS ON JUNE 1, 2004 TO THE TRANSFERRED VENUE AT THE
SESSION HALL OF THE MAIN OFFICE OF PUBLIC RESPONDENT IN
INTRAMUROS, MANILA WAS CURED BY THE PRESENCE OF
PETITIONER’S WATCHER AND ATTY. RONALD B. JAVINES, WHO
APPEARED AS COUNSEL FOR KNP/PMP CONGRESSIONAL
CANDIDATE BAI ZENY G. DILANGALEN AND KNP/PNP [sic]
SENATORIAL CANDIDATE DIDAGEN P. DILANGALEN; and
WHETHER OR NOT PUBLIC RESPONDENT HAS THE POWER TO (i)
DETERMINE AUTHENTICITY OF ELECTION RETURNS; (ii)
INVESTIGATE BEYOND THE RETURNS; AND (iii) ADOPT MEANS AND
METHODS TO ASCERTAIN AUTHENTICITY OF ELECTION
RETURNS.|avvphi|.net
30
Respondent, on the other hand, argues that the petition should be dismissed
outright because petitioner failed to allege grave abuse of discretion
committed by the COMELEC En Banc and its 2nd Division.
Indeed, it is well settled that "unless the COMELEC is shown to have
committed grave abuse of discretion, its decision will not be interfered with
by this Court."11 Considering, though, that the Resolution of COMELEC 2nd
Division dated October 13, 2004 was affirmed merely because the voting of
the COMELEC En Banc on the Resolution dated February 10, 2005 penned
by Commissioner Rufino S.B. Javier (which reversed and set aside the
Resolution dated October 13, 2004), was equally divided, this Court is
compelled to look deeper into this case.
Section 6, Rule 18 of the Comelec Rules of Procedure specifically states that
if the opinion of the Comelec En Banc is equally divided, the case shall
be reheard. The Court notes, however, that the Order of the Comelec En
Bancdated February 10, 2005 clearly stated that what was conducted was a
mere "re-consultation."
Banc first issued an order setting the case for hearing and allowed the
parties to submit their respective memoranda before voting anew on therein
petitioner’s motion for reconsideration. This should have been the proper
way for the Comelec En Banc to act on herein petitioner’s motion for
reconsideration when the first voting was equally divided. Its own Rules of
Procedure calls for a rehearing where the parties would have the opportunity
to strengthen their respective positions or arguments and convince the
members of the Comelec En Banc of the merit of their case. Thus, when the
Comelec En Banc failed to give petitioner the rehearing required by the
Comelec Rules of Procedure, said body acted with grave abuse of
discretion.
IN VIEW OF THE FOREGOING, the petition is GRANTED. The case
is REMANDED to the COMELEC En Banc. The COMELEC En
Banc is ORDERED to conduct forthwith the rehearing required under the
COMELEC Rules of Procedure and render the appropriate decision thereon.
SO ORDERED.

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

A consultation is a "deliberation of persons on some subject;"12 hence, a re-

consultation means a second deliberation of persons on some subject.

Rehearing is defined as a "second consideration of cause for purpose of

calling to court’s or administrative board’s attention any error, omission, or
oversight in first consideration. A retrial of issues presumes notice to
parties entitled thereto and opportunity for them to be
heard"13 (Emphasis supplied). But as held in Samalio v. Court Of Appeals,14

A formal or trial-type hearing is not at all times and in all instances essential.
The requirements are satisfied where the parties are afforded fair and
reasonable opportunity to explain their side of the controversy at hand.

Thus, a rehearing clearly presupposes the participation of the opposing

parties for the purpose of presenting additional evidence, if any, and further
clarifying and amplifying their arguments; whereas, a re-consultation
involves a re-evaluation of the issues and arguments already on hand only
by the members of the tribunal, without the participation of the parties.

In Belac v. Comelec,15 when the voting of the Comelec En Banc on therein

petitioner’s motion for reconsideration was equally divided, the Comelec En

31
G.R. No. 170678 July 17, 2006
ROMMEL G. MUÑOZ, petitioner,
vs.
COMMISSION ON ELECTIONS, CARLOS IRWIN G. BALDO,
JR., respondents.
DECISION
YNARES-SANTIAGO, J.:
This is a petition for certiorari and prohibition with prayer for the issuance of
a writ of preliminary injunction and/or temporary restraining order filed by
petitioner Rommel G. Muñoz assailing the Resolution 1 dated December 15,
2005 of the Commission on Elections (COMELEC) En Banc in SPC No. 04-
124 which affirmed the Resolution2dated October 25, 2004 of the COMELEC
First Division granting the petition of private respondent Carlos Irwin G.
Baldo, Jr. to annul petitioner's proclamation as mayor of Camalig, Albay.
The facts of the case are as follows:
Petitioner and private respondent were candidates for mayor of Camalig,
Albay in the May 10, 2004 election.3 At 6:00 o'clock in the evening of May
10, 2004, the Municipal Board of Canvassers (MBC) convened and
canvassed the election returns (ER).4
On May 11, 2004, the lawyers of private respondent objected to the inclusion
of the 26 ERs from various precincts based on the following grounds: 1)
eight ERs lack inner seal; 2) seven ERs lack material data; 3) one ER lack
signatures; 4) four ERs lack signatures and thumbmarks of the members of
the Board of Election Inspectors on the envelope containing them; 5) one ER
lack the name and signature of the poll clerk on the second page thereof; 6)
one ER lack the number of votes in words and figures; and 7) four ERs were
allegedly prepared under intimidation.5
On May 13, 2004, the MBC denied the objections and ruled to include the
objected ERs in the canvass. Private respondent appealed the said ruling to
the COMELEC on May 18, 2004 and was docketed as SPC No. 04-087 and
raffled to the COMELEC First Division.6
Despite the pendency of the appeal, petitioner was proclaimed on May 19,
2004 by the MBC as the winning candidate for mayor of Camalig, Albay. 7
On May 21, 2004, private respondent filed with the COMELEC a petition to
annul the proclamation of the petitioner for being premature and illegal. The
case was docketed as SPC No. 04-124 and raffled to the COMELEC First
Division.8
On October 25, 2004, the COMELEC First Division rendered a Resolution in
SPC No. 04-124 granting the petition to annul the proclamation. The
dispositive portion thereof reads:
WHEREFORE, in view of the foregoing, the Commission (FIRST
DIVISION) hereby GRANTS the Petition. The proclamation of x x x
ROMMEL MUñOZ as winning candidate for mayor of Camalig,
Albay is ANNULLED for having been made in an irregular
proceeding and for being precipitate and premature.
SO ORDERED.9
Petitioner's motion for reconsideration10 was denied for lack of merit by the
COMELEC En Banc in a Resolution dated December 15, 2005, thus:
WHEREFORE, premises considered, the Commission En Banc
hereby DENIES the Motion for Reconsideration filed by x x x Muñoz
for lack of merit. Accordingly, the ANNULMENT and SETTING
ASIDE, by the First Division, of the proclamation of x x x ROMMEL
MUñOZ as the duly elected Mayor is hereby AFFIRMED.
The Regional Election Director of Region V, Atty. Zacarias C.
Zaragoza, Jr., is hereby DIRECTED to constitute a new Municipal
Board of Canvassers from among the Election Officers in the
Region.
Accordingly, the new Municipal Board of Canvassers of Camalig,
Albay is hereby DIRECTED to:
a) RECONVENE, and after due notice to all
parties/candidates concerned,
b) RE-CANVASS all the election returns of Camalig,
Albay, and on the basis thereof,
c) PREPARE a new Certificate of Canvass, and forthwith
32
 d) PROCLAIM the winning candidates for Mayoralty
position.
SO ORDERED.11
Hence, petitioner files the instant petition for certiorari and prohibition with
prayer for the issuance of a writ of preliminary injunction and/or temporary
restraining order.
On January 17, 2006, the Court issued a temporary restraining order
effective immediately and ordered the COMELEC to cease and desist from
implementing and enforcing the December 15, 2005 Resolution in SPC No.
04-124.12
Petitioner relies on the following grounds in support of his petition:
I
THE PUBLIC [RESPONDENT] COMELEC COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN IT ISSUED THE ASSAILED
RESOLUTION DENYING FOR LACK OF MERIT PETITIONER'S
MOTION FOR RECONSIDERATION OF THE 25 OCTOBER [2004]
RESOLUTION OF THE PUBLIC RESPONDENT'S FIRST
DIVISION, FOR BEING CONTRARY TO LAW, RULES AND
WELL-SETTLED JURISPRUDENCE;
II
THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT ISSUED THE ASSAILED RESOLUTION
ANNULLING AND SETTING ASIDE THE PROCLAMATION OF
PETITIONER AS DULY ELECTED MAYOR OF CAMALIG, ALBAY
WITHOUT FIRST RESOLVING THE PENDING APPEAL FIRST
INITIATED, SPC 04-87;
III
THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT ISSUED THE ASSAILED RESOLUTION
DIRECTING THE NEW MUNICIPAL BOARD OF CANVASSERS
OF CAMALIG, ALBAY, TO RECONVENE AND RE-CANVASS ALL
ELECTION RESULTS OF CAMALIG, ALBAY, FOR BEING
CONTRARY TO LAW.13
The foregoing issues may be summarized into two: 1) whether or not the
COMELEC First Division committed grave abuse of discretion when it
decided only the Petition to Annul Proclamation despite the agreement of the
parties to consolidate private respondent's appeal from the ruling of the MBC
since both cases were raffled to the same Division and the issue in the latter
case was connected to, if not determinative of, the merits of the former case;
and 2) whether or not the COMELEC En Banc correctly ordered the new
MBC to re-canvass all the ERs and to proclaim the winner on the basis
thereof despite the pendency of the appeal with the First Division.
The petition is partly granted.
Anent the first issue, we find no merit in petitioner's contention.
While Section 9, Rule 3 of the COMELEC Rules of Procedure provides that
"when an action or proceeding involves a question of law and fact which is
similar to or common with that of another action or proceeding, the
same may be consolidated with the action or proceeding bearing the lower
docket number," however, this rule is only permissive, not mandatory. We
have consistently held that the term "may" is indicative of a mere possibility,
an opportunity or an option. The grantee of that opportunity is vested with a
right or faculty which he has the option to exercise. If he chooses to exercise
the right, he must comply with the conditions attached thereto,14 which in this
case require that the cases to be consolidated must involve similar questions
of law and fact.
In the case at bar, the consolidation of SPC No. 04-087 with SPC No. 04-
124 is inappropriate as they do not involve similar questions of law and fact.
SPC No. 04-087 assails the inclusion of the 26 ERs by the MBC on the
ground that these were incomplete, contained material defects and were
prepared under intimidation, issues which are proper for a pre-proclamation
controversy under paragraphs (b) and (c) of Section 243 of the Omnibus
Election Code. On the other hand, SPC No. 04-124 is a petition for the
annulment of petitioner's proclamation for allegedly being prematurely done,
in violation of Section 36(i) of COMELEC Resolution No. 6669 15 which
instructs the board of canvassers "not proclaim any candidate as winner
unless authorized by the Commission after the latter has ruled on the
33
objections brought to it on appeal by the losing party; [a]ny proclamation
made in violation hereof shall be void ab initio, unless the contested
returns/certificates will not affect the results of the elections." In fine, SPC
No. 04-087 pertains to the preparation of the ERs which is a pre-
proclamation controversy, while SPC No. 04-124 refers to the conduct of the
MBC in proclaiming the petitioner without authority of the COMELEC.
Mere pendency of the two cases before the same division of the COMELEC
is not a ground for their outright consolidation. The discretion to consolidate
cases may be exercised only when the conditions are present. In any event,
the records are bereft of evidence that the parties agreed to consolidate the
two cases or that the COMELEC First Division had granted the same.
Further, we find that the COMELEC First Division correctly annulled the
proclamation of the petitioner. Time and again, this Court has given its
imprimatur on the principle that COMELEC is with authority to annul any
canvass and proclamation which was illegally made.16 At the time the
proclamation was made, the COMELEC First Division had not yet resolved
SPC No. 04-087. Pursuant to Section 36(i) of COMELEC Resolution No.
6669, which finds basis in Section 20(i) of Republic Act (R.A.) No.
7166,17 the MBC should not have proclaimed petitioner as the winning
candidate absent the authorization from the COMELEC. Any proclamation
made under such circumstances is void ab initio.18
We likewise do not agree with petitioner's contention that the proclamation
was valid as the contested ERs will not affect the results of the election.
Section 20(i) of R.A. No. 7166 reads:
Sec. 20. Procedure in Disposition of Contested Election Returns. –
xxxx
(i) The board of canvassers shall not proclaim any candidate as
winner unless authorized by the Commission after the latter has
ruled on the objections brought to it on appeal by the losing party.
Any proclamation made in violation hereof shall be void ab
initio, unless the contested returns will not adversely affect the
results of the election. (Emphasis supplied)
The phrase "results of the election" is not statutorily defined. However, it had
been jurisprudentially explained in Lucero v. Commission on Elections19 to
mean:
[T]he net result of the election in the rest of the precincts in a given
constituency, such that if the margin of a leading candidate over
that of his closest rival in the latter precincts is less than the total
number of votes in the precinct where there was failure of election,
then such failure would certainly affect "the result of the election." 20
Although the Lucero case involves a failure of election, the definition of
"results of election" applies to the disposition of contested election returns
under Section 20(i) of R.A. No. 7166. In both situations, the law endeavors to
determine the will of the people in an expeditious manner in that if the total
number of votes in the precinct where there is a failure of election or in case
of the contested ERs, is less than the lead of a candidate over his closest
rival, the results of the election would not be adversely affected. Hence, a
proclamation may be made because the winning candidate can be
ascertained. Otherwise, a special election must be held or an authorization
of the COMELEC is necessary after ruling on the objections brought to it on
appeal by the losing party in order to determine the will of the electorate.
Proclamation made in violation of the rules is void ab initio as it would be
based on an incomplete canvass of votes. It is well settled that an
incomplete canvass of votes is illegal and cannot be the basis of a
subsequent proclamation. A canvass is not reflective of the true vote of the
electorate unless the board of canvassers considers all returns and omits
none.21
In the case at bar, petitioner obtained a margin of 762 votes over the private
respondent based on the canvass of the uncontested ERs whereas the total
number of votes in the 26 contested ERs is 5,178, which is higher than the
762-lead of the petitioner over the private respondent. Clearly, the results of
the election would be adversely affected by the uncanvassed returns.
As aptly held by the COMELEC First Division:
The votes obtained by petitioner and private respondent tallied in
the contested election returns can not be the basis of the partial
proclamation. The objected election returns cannot be considered,
even provisionally, as the true and final result of the elections in the
contested precincts. The possibility remains, remote thought (sic) it
may be that they could be excluded and the results reflected therein
disregarded. The contested election returns involved 5,178 votes as
34
 this is the number of voters who actually voted in the precincts
covered by the objections. The lead of [petitioner] over [private
respondent] as shown in the uncontested returns was less than this
number. Clearly, the results of the elections could be adversely
affected by the uncanvassed returns. Truly, the Board erred in its
perception that its partial proclamation was warranted.22
While the COMELEC En Banc correctly affirmed the October 25, 2004
Resolution of its First Division in SPC 04-124 insofar as it annulled
petitioner's proclamation, however, we find that it exceeded its authority and
thus gravely abused its discretion when it ordered the new MBC to re-
canvass all ERs even before its First Division could decide on SPC No. 04-
087 filed by private respondent assailing the ruling of the MBC to include the
26 contested ERs in the canvass.
Section 3 of Article IX-C of the 1987 Constitution provides:
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 decisions shall
be decided by the Commission en banc.
In Sarmiento v. Commission on Elections23 and Zarate v. Commission on
Elections,24 the Court similarly held that "election cases must first be heard
and decided by a Division of the Commission," and that the "Commission,
sitting en banc, does not have the authority to hear and decide the same at
the first instance."
Thus, in Acosta v. Commission on Elections,25 the Court held that the
COMELEC En Banc violated the foregoing Constitutional mandate when it
affirmed the trial court's decision that was not the subject of the special civil
action before it, but of the appeal filed by therein petitioner, which was still
undocketed at the time and the parties have not yet submitted any evidence
in relation thereto.
Clearly, by ordering the re-canvass of all the ERs in SPC No. 04-124, the
COMELEC En Banc in effect rendered a decision on the merits of SPC No.
04-087, which up to the present is still pending before its First Division, in
violation of the rule that it does not have the authority to hear and decide
election cases, including pre-proclamation controversies, at the first
instance. As the proclamation of the winning candidate has been delayed for
more than two years now due to these cases, the COMELEC First Division is
directed to expeditiously resolve SPC No. 04-087, which is summary in
nature.
WHEREFORE, in view of the foregoing, the petition is PARTLY GRANTED.
The December 15, 2005 Resolution of the COMELEC En Banc in SPC No.
04-124 which affirmed the annulment and setting aside by its First Division of
the proclamation of petitioner Rommel G. Muñoz as Mayor of Camalig, Albay
for being premature, is AFFIRMED with the MODIFICATION that the order
to constitute a new Municipal Board of Canvassers to re-canvass all the
election returns of Camalig, Albay; to prepare a new Certificate of Canvass;
and to declare the winning candidate for mayoralty position is SET
ASIDE for having been issued with grave abuse of discretion. The temporary
restraining order issued on January 17, 2006 is hereby SET ASIDE.
SO ORDERED.
Rommel G. Munoz, vs. Commission on Elections, Carlos Irwin G.
Baldo, Jr.,
G.R No. 170678
July 17, 2006
Use of word “may”
Facts of the Case
 Petitioner and private respondent were candidates for mayor of
Camalig, Albay in the May 10, 2004 election.
 At 6:00 o’clock in the evening of May 10, 2004, the Municipal Board
of Canvassers (MBC) convened and canvassed the election returns
(ER).
 On May 11, 2004, the lawyers of private respondent objected to the
inclusion of the 26 ERs from various precincts based on the
following grounds
◦ 1) eight ERs lack inner seal;
◦ 2) seven ERs lack material data
◦ 3) one ER lack signatures;
◦ 4) four ERs lack signatures and thumbmarks of the
members of the Board of Election Inspectors on the
envelope containing them;
35
 ◦ 5) one ER lack the name and signature ofthe poll clerk
on the second page thereof;
◦ 6) one ER lack the number of votes in words and figures;
and
◦ 7) four ERs were allegedly prepared under intimidation.
 On May 13, 2004, the MBC denied the objections and ruled to
include the objected ERs in the canvass. Private respondent
appealed the said ruling to the COMELEC on May 18, 2004 and
was docketed as SPC No. 04-087 and raffled to the COMELEC
First Division.
 Despite the pendency of the appeal, petitioner was proclaimed on
May 19, 2004 by the MBC as the winning candidate for mayor of
Camalig, Albay
 On May 21, 2004, private respondent filed with the COMELEC a
petition to annul the proclamation of the petitioner for being
premature and illegal. The case was docketed as SPC No. 04-124
and raffled to the COMELEC First Division.[8]
COMELEC Ruling
 On October 25, 2004, the COMELEC First Division rendered a
Resolution in SPC No. 04-124 granting the petition to annul the
proclamation. The dispositive portion thereof reads:
◦ WHEREFORE, in view of the foregoing, the Commission
(FIRST DIVISION) hereby GRANTS the Petition. The
proclamation of x x x ROMMEL MUÑOZ as winning
candidate for mayor of Camalig, Albay is ANNULLED for
having been made in an irregular proceeding and for being
precipitate and premature.
Action to SC
 This is a petition for certiorari and prohibition for the issuance of a
writ of preliminary injunction and/or temporary restraining order filed
by petitioner assailing the Resolution dated December 15, 2005 of
COMELEC En Banc in SPC No. 04-124 which affirmed the
Resolution dated October 25, 2004 of the COMELEC First Division
granting the petition of private respondent to annul petitioner’s
proclamation as mayor of Camalig, Albay.
ISSUE:
1. WON the COMELEC First Division committed a grave abuse of
discretion when it decided only the Petition to Annul Proclamation
despite the agreement of the parties to consolidate private respondent’s
appeal from the ruling of MBC since both cases were raffled to the same
Division and the issue in the latter case was not connected to, if not
determinative of, the merits of the former case?
2. WON the COMELEC En Banc correctly ordered the new MBC to re
canvass all the ERs and to proclaim the winner on the basis thereof
the pendency of the appeal
with the First Division?
SC RULING
NO, Section 9, Rule 3 of the COMELEC Rules of Procedure provides:
“when an action or proceeding involves a question of law and fact
which is similar to or common with that of another action or proceeding,
the same may be consolidated with the action or proceeding bearing the
lower docket number”
SC RULING
 The rule is only permissive, not mandatory.
 The term “may” is indicative of a mere possibility, an opportunity or
an option.
 The grantee is vested with a right or faculty which he has the option
to exercise.
 If he chooses to exercise the right, he must comply with the
conditions attached thereto.
 The cases to be consolidated must involve similar questions of law
and fact.
SC RULING
In the case at bar, the consolidation of SPC No. 04-087 with SPC No. 04-
124 is inappropriate as they do not involve similar questions of law and fact.
SPC No. 04-087 pertains to the preparation of the ERs which is a pre-
proclamation controversy
WHILE
36
SPC No. 04-124 refers to the conduct of the MBC in the proclaiming the
petitioner without authority of the COMELEC.

SC RULING
 Mere pendency of the two cases before the same division of the
COMELEC is not a ground for their outright consolidation.

 The discretion to consolidate cases may be exercise only

when the conditions are present

 SC RULING On Re-canvassing:
NO. It exceeded it’s authority by ordering the re-canvass of all the
ERs. The COMELEC En Banc in effect rendered a decision on
the merits of SPC No. 04-087, which up to the present is still
pending before its First Division, in violation of the rule that it
does not have the authority to hear and decide election cases,
including pre proclamation controversies, at the first instance.

On Proclamation:

YES. The court has given its imprimatur on the principle that
COMELEC is with authority to annul any canvass and proclamation which
was illegally made.

SC RULING
 WHEREFORE, in view of the foregoing m the petition is
PARTLY GRANTED. The December 15, 2005 Resolution of
the COMELEC En Banc in SPC No. 04-124 which affirmed
the annulment and setting aside by its First Division of the
proclamation of petitioner Rommel G. Munoz as Mayor of
Camalig, Albay for being premature, is AFFIRMED with the
MODIFICATION that the order to constitute a new Municipal
Board of Canvassers to re-canvass all the election returns of
Camalig, Albay; to prepare a new Certificate of Canvass;
and to declare the winning candidate for mayoralty position is SET
ASIDE for having been issued with grave abuse of discretion.
The TEMPORARY RESTRAINING ORDER issued on January 17,
2006 is herby SET ASIDE.

37
[G.R. No. 153945. February 4, 2003]
REYNATO BAYTAN, REYNALDO BAYTAN and ADRIAN BAYTAN,
petitioners, vs. THE COMMISSION ON ELECTIONS, respondent.
DECISION
CARPIO, J.:
The Case
Challenged in this petition for certiorari[1] with prayer for temporary
restraining order and preliminary injunction is the Resolution dated June 3,
2002[2] of the Commission on Elections (COMELEC for brevity) en banc in
E.O. Case No. 97-503. In its assailed Resolution, the COMELEC en banc
denied the motion to reconsider Minute Resolution No. 00-2281 dated
November 9, 2000[3] ordering the Law Department to file criminal cases for
double registration against petitioners Reynato Baytan, Reynaldo Baytan
and Adrian Baytan (petitioners for brevity).
The Antecedents
On June 15, 1997, petitioners were on their way to register for the May 1998
elections when they met the newly elected Barangay Captain, Roberto
Ignacio (Ignacio for brevity), in Barangay 18, Zone II of Cavite City. Ignacio
led petitioners to register in Precinct No. 83-A of Barangay 18. Petitioners
registered in this precinct as evidenced by Voters Registration Records Nos.
41762473, 41762472 and 41762470.
When petitioners returned home, they wondered why the registrants in this
precinct looked unfamiliar to them. This prompted petitioners to return to the
registration center to study the precinct map of Barangay 18. They then
realized that their residence is situated within the jurisdiction of Barangay 28.
Thus, petitioners proceeded to Precinct 129-A of Barangay 28 and
registered anew on June 22, 1997 as evidenced by Voters Registration
Records Nos. 42662969, 42662968 and 42662917.
Subsequently, petitioners sent a letter dated August 21, 1997 to former
COMELEC Assistant Executive Director Jose Pio O. Joson and furnished a
copy thereof to COMELEC Registrar Francisco Trias. In this letter,
petitioners requested for advice on how to cancel their previous registration.
They also explained the reason and circumstances of their second
registration and expressed their intention to redress the error.
On September 16, 1997, the Election Officer of Cavite City forwarded copies
of petitioners Voters Registration Records to the Provincial Election
Supervisor, Atty. Juanito V. Ravanzo (Ravanzo for brevity), for evaluation.
Ravanzo endorsed the matter to the Regional Director for prosecution.
Eventually, the Law Department endorsed the case to Ravanzo for
resolution.
On January 10, 1998, Ravanzo recommended filing an information for
double registration against petitioners. In an en banc meeting held on
November 09, 2000, the COMELEC in its Minute Resolution No. 00-2281
affirmed the recommendation of Ravanzo. Petitioners moved for
reconsideration. The COMELEC en banc denied the motion and disposed as
follows:
WHEREFORE, premises considered, the En Banc resolution dated
November 9, 2000 is hereby AFFIRMED. The Law Department is hereby
directed to file the proper information against respondents for violation of Art.
XXII, Sec. 261, par. (y) sub-par. (5) of the Omnibus Election Code.
Hence, the instant petition.
The Issues
Petitioners contend that the COMELEC en banc committed grave abuse of
discretion amounting to lack or excess of jurisdiction in
1. Recommending the prosecution of petitioners for double registration
despite clear and convincing evidence on record that they had no intention of
committing said election offense;
2. Not considering the letter dated August 21, 1997 addressed to the
COMELEC Assistant Director of Cavite City as substantial compliance with
the requirement of the law for cancellation of previous registration; and
3. Taking cognizance of the case in the first instance in violation of Section
3, Article IX-C of the Constitution.
In sum, petitioners insist they are innocent of any wrongdoing in their act of
registering twice on different days in two different precincts. Petitioners
argue that they did not intend to perpetrate the act prohibited, and therefore
they should be exculpated. They claim honest mistake and good faith in
registering twice. Petitioners claim they made the first registration because of
the intervention and instigation of Ignacio.
38
Petitioners theorize that their August 21, 1997 letter to the election registrar
of Cavite City informing him of the lapse and asking how to rectify the same
constitutes substantial compliance with the Omnibus Election Codes
requirement of cancellation of prior registration. They further implore a liberal
construction of the laws on election offenses since almost five years had
lapsed from the date of the commission of the offense on June 15, 1997.
They claim the case is about to prescribe under the Election Code.
Lastly, petitioners fault the COMELEC en banc for assuming original
jurisdiction over the case in contravention of Section 3, Article IX-C of the
Constitution. Petitioners argue that this constitutional provision requires that
election cases must first be heard and decided by a Division before
assumption of jurisdiction by the COMELEC en banc.
The Courts Ruling
The petition is bereft of merit.
First and Second Issues: Whether the criminal cases should be dismissed
on the ground of lack of intent and substantial compliance with the
requirement of cancellation of previous registration.
In Minute Resolution No. 00-2281 dated November 9, 2000, the COMELEC
en banc affirmed the recommendation of the investigating officer. The
COMELEC thus directed its Law Department to file the necessary
information against petitioners for violation of Article XXII, SEC. 261 (y) (5) of
the Election Code which reads:
SEC. 261. Prohibited Acts. The following shall be guilty of an election
offense:
(y) On Registration of Voters:
(5) Any person who, being a registered voter, registers anew without filing an
application for cancellation of his previous registration.
Petitioners filed a motion for reconsideration to which the COMELEC en
banc issued the assailed Resolution dated June 3, 2002 affirming the Minute
Resolution.
The grant by the Constitution to the COMELEC of the power to investigate
and prosecute election offenses is intended to enable the COMELEC to
assure the people of free, orderly, honest, peaceful and credible elections.
This grant is an adjunct to the COMELECs constitutional duty to enforce and
administer all election laws. Failure by the COMELEC to exercise this power
could result in the frustration of the true will of the people and make an idle
ceremony of the sacred right and duty of every qualified citizen to vote.[4]
Petitioners lose sight of the fact that the assailed resolutions were issued in
the preliminary investigation stage. A preliminary investigation is essentially
inquisitorial and is only the means to discover who may be charged with a
crime, its function being merely to determine probable cause.[5] All that is
required in the preliminary investigation is the determination of probable
cause to justify the holding of petitioners for trial. By definition, probable
cause is
x x x a reasonable ground of presumption that a matter is, or may be, well
founded x x x such a state of facts in the mind of the prosecutor as would
lead a person of ordinary caution and prudence to believe or entertain an
honest or strong suspicion that a thing is so. The term does not mean `actual
or positive cause nor does it import absolute certainty. It is merely based on
opinion and reasonable belief. Thus, a finding of probable cause does not
require an inquiry into whether there is sufficient evidence to procure a
conviction. It is enough that it is believed that the act or omission complained
of constitutes the offense charged. Precisely, there is a trial for the reception
of evidence of the prosecution in support of the charge.[6]
There is no question that petitioners registered twice on different days and in
different precincts without canceling their previous registration. Aside from
this, the COMELEC found certain circumstances prevailing in the case
sufficient to warrant the finding of probable cause. The COMELEC noted that
petitioners wrote down their address in Precinct No. 83-A of Barangay 18 as
No. 709 T. Gomez Extension St., Barangay 18-Maya, Cavite City. However,
in Precinct No. 129-A of Barangay 28, petitioners registered as residents of
No. 709 Magcawas St., Barangay 28-Taurus, Caridad, Cavite City. The
COMELEC noted further that the affidavits submitted by petitioners
contained glaring inconsistencies. Petitioners claimed that Ignacio led them
to the wrong precinct to register. However, Ignacios affidavit stated that while
he led them to the voting precinct of Barangay 18, he immediately left the
area not knowing that petitioners registered in the wrong barangay. Contrary
to petitioners sworn statements, Aurora Baytan, mother of petitioners, had
another version. She claimed in her affidavit that on June 15, 1997, Ignacio
went to their house to inform them about the redefinition of their barangays
territorial jurisdiction. Right then and there, Ignacio brought her sons to
Barangay 18 to register.
The COMELEC also pointed out that since double registration is malum
prohibitum, petitioners claim of lack of intent to violate the law is
inconsequential. Neither did the COMELEC consider petitioners letter dated
August 22, 1997 as an application to cancel their previous registration. The
39
COMELEC explained that this letter was sent after their second registration
was accomplished and after the election officer of Cavite City had already
reported their act of double registration to a higher official.
All told, a reasonably prudent man would readily conclude that there exists
probable cause to hold petitioners for trial for the offense of double
registration.
Moreover, petitioners claims of honest mistake, good faith and substantial
compliance with the Election Codes requirement of cancellation of previous
registration are matters of defense best ventilated in the trial proper rather
than at the preliminary investigation.[7] The established rule is that a
preliminary investigation is not the occasion for the full and exhaustive
display of the parties evidence. It is for the presentation of such evidence
only as may engender a well-grounded belief that an offense has been
committed and the accused is probably guilty thereof.[8]
It is also well-settled that the finding of probable cause in the prosecution of
election offenses rests in the COMELECs sound discretion. The COMELEC
exercises the constitutional authority to investigate and, where appropriate,
prosecute cases for violation of election laws, including acts or omissions
constituting election frauds, offenses and malpractices.[9] Generally, the
Court will not interfere with such finding of the COMELEC absent a clear
showing of grave abuse of discretion. This principle emanates from the
COMELECs exclusive power to conduct preliminary investigation of all
election offenses punishable under the election laws and to prosecute the
same, except as may otherwise be provided by law.[10]
We also cannot accept petitioners plea for a liberal construction of the laws
on the ground of prescription. Prescription of the crime or offense is the
forfeiture or loss of the right of the State to prosecute the offender after the
lapse of a certain time.[11]
Section 267 of the Election Code provides that election offenses shall
prescribe after five years from the date of their commission. In this case, the
offense of double registration allegedly occurred on June 22, 1997 when
petitioners registered for a second time in a different precinct without
canceling their previous registration. At this point, the period of prescription
for the alleged offense started to run.
However, prescription is interrupted when proceedings are instituted against
the offender. Specifically, the period of prescription is interrupted by the filing
of the complaint even if it be merely for purposes of preliminary examination
or investigation.[12]
The COMELEC initiated the complaint for double registration against
petitioners motu proprio under Sections 3,[13] 4[14] and 5,[15] Rule 34 of the
1993 COMELEC Rules of Procedure. On September 16, 1997, the Election
Officer of Cavite City forwarded copies of petitioners Voters Registration
Records for evaluation to Atty. Juanito V. Ravanzo, Provincial Election
Supervisor of Cavite City, who was also tasked to investigate the case.
Ravanzo endorsed the matter to the Regional Director for prosecution. The
Regional Director forwarded the case to the Law Department and the latter
re-endorsed the same to the office of Ravanzo for resolution. A preliminary
investigation hearing was conducted on January 19, 1998 where petitioners
were instructed to submit their counter-affidavits. After the preliminary
investigation and based on the affidavits and other evidence submitted in the
case, Ravanzo recommended the prosecution of petitioners for the offense
of double registration. Ineluctably, the prescriptive period of the offense was
interrupted upon the COMELECs initiation of proceedings against petitioners
and remains tolled pending the termination of the case.
The liberal construction of punitive laws in relation to the prescription of
offenses cannot be invoked to prejudice the interest of the State to prosecute
election offenses, especially those which the COMELEC described as
ruffling the electoral system.[16]
Third Issue: Whether the COMELEC en bancs assumption of original
jurisdiction over the case violated the Constitution.
Petitioners rely on Section 3, Article IX-C of the 1987 Constitution which
states:
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 decisions shall be decided by the Commission en banc.
Petitioners assert that this constitutional provision serves as basis to nullify
the proceedings conducted and orders issued by the COMELEC en banc in
E.O. Case No. 97-503. Petitioners cite Sarmiento v. Comelec[17] and Zarate
v. Comelec[18] to support their stand that the COMELEC en banc acted
without jurisdiction or with grave abuse of discretion when it assumed
original jurisdiction over the case without first referring the same to any of its
divisions. In Sarmiento and Zarate, the Court similarly held that election
cases must first be heard and decided by a Division of the Commission, and
that the Commission, sitting en banc, does not have the authority to hear
and decide the same at the first instance.
40
In its Comment for the COMELEC, the Solicitor General points out that the
rulings in Sarmiento and Zarate were clarified in Canicosa v. COMELEC[19]
to mean that
[I]t is only in the exercise of its adjudicatory or quasi judicial powers that the
COMELEC is mandated to hear and decide cases first by division and then,
upon motion for reconsideration, by the COMELEC en banc. This is when it
is jurisdictional.
The Solicitor General contends that the conduct of a preliminary
investigation before the filing of an information in court does not in any way
adjudicate with finality the rights and liabilities of the parties investigated. A
preliminary investigation does not make any pronouncement as to the guilt
or innocence of the party involved. Hence, a preliminary investigation cannot
be considered a judicial or quasi-judicial proceeding required to be heard by
the Division in the first instance.
On the other hand, petitioners countered that in Cruz v. People,[20] the
Court held that the conduct of a preliminary investigation is a judicial or
quasi-judicial proceeding since there is opportunity to be heard and for the
production and weighing of evidence and a decision is rendered thereon.
Under Section 2, Article IX-C of the 1987 Constitution, the COMELEC
exercises both administrative and quasi-judicial powers. The COMELECs
administrative powers are found in Section 2 (1), (3), (4), (5), (6), (7), (8),
and (9) of Article IX-C.[21] The 1987 Constitution does not prescribe how the
COMELEC should exercise its administrative powers, whether en banc or in
division. The Constitution merely vests the COMELECs administrative
powers in the Commission on Elections, while providing that the COMELEC
may sit en banc or in two divisions. Clearly, the COMELEC en banc can act
directly on matters falling within its administrative powers. Indeed, this has
been the practice of the COMELEC both under the 1973 and 1987
Constitutions.[22]
On the other hand, the COMELECs quasi-judicial powers are found in
Section 2 (2) of Article IX-C, to wit:
Section 2. The Commission on Elections shall exercise the following powers
and functions:
xxx
(2) Exercise exclusive original jurisdiction over all contests relating to the
elections, returns, and qualifications of all elective regional, provincial, and
city officials, and appellate jurisdiction over all contests involving elective
municipal officials decided by trial courts of general jurisdiction, or involving
elective barangay officials decided by trial courts of limited jurisdiction.
Decisions, final orders, or rulings of the Commission on election contests
involving elective municipal and barangay offices shall be final, executory,
and not appealable.
The COMELECs exercise of its quasi-judicial powers is subject to Section 3
of Article IX-C which expressly requires that all election cases, including pre-
proclamation controversies, shall be decided by the COMELEC in division,
and the motion for reconsideration shall be decided by the COMELEC en
banc. It follows, as held by the Court in Canicosa,[23] that the COMELEC is
mandated to decide cases first in division, and then upon motion for
reconsideration en banc, only when the COMELEC exercises its quasi-
judicial powers.
The COMELEC is empowered in Section 2(6), Article IX-C of the 1987
Constitution to prosecute cases of violations of election laws. The
prosecution of election law violators involves the exercise of the COMELECs
administrative powers. Thus, the COMELEC en banc can directly approve
the recommendation of its Law Department to file the criminal information for
double registration against petitioners in the instant case. There is no
constitutional requirement that the filing of the criminal information be first
decided by any of the divisions of the COMELEC.
In sum, the second sentence of Section 3, Article IX-C of the 1987
Constitution is not applicable in administrative cases, like the instant case
where the COMELEC is determining whether probable cause exists to
charge petitioners for violation of the provision of the Election Code
prohibiting double registration.
Indeed, the COMELEC acted in accordance with Section 9(b), Rule 34 of the
1993 COMELEC Rules of Procedure governing the prosecution of election
offenses in meeting en banc in the first instance and acting on the
recommendation of Investigating Officer Ravanzo to file charges against
petitioners. The rule reads:
SEC. 9. Duty of the Law Department, State Prosecutor, Provincial or City
Fiscal Upon Receipt of Records. x x x
(b). In cases investigated by the lawyers or the field personnel of the
Commission, the Director of the Law Department shall review and evaluate
the recommendation of said legal officer, prepare a report and make a
recommendation to the Commission affirming, modifying or reversing the
same which shall be included in the agenda of the succeeding meeting en
41
banc of the Commission. If the Commission approves the filing of an
information against the respondent/s, the Director of the Law Department
shall prepare and sign the information for immediate filing with the
appropriate court. (Emphasis supplied)
Minute Resolution No. 00-2281 was issued during the en banc meeting held
on November 9, 2000 to resolve the recommendation of Ravanzo in the
case.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
CASE DIGEST:
23. Baytan vs. COMELEC
G.R. No. 153945 February 4, 2003
FACTS: Petitioners, Reynato Baytan, Reynaldo Baytan and Adrian Baytan
were on their way to register for the May 1998 elections when they met the
newly elected Barangay Captain, Roberto Ignacio, in Barangay 18, Zone II of
Cavite City, who led them to register in Precinct No. 83-A of Barangay 18.
Double Registration is malum prohibitum, lack of intent is inconsequential.
They also just sent their letter after the election officer had already reported
their act. Petitioners’ defenses of good faith and substantial compliance are
best used for the trial proper and not the preliminary investigation.
The COMELECs exercise of its quasi-judicial powers is subject to Section 3
of Article IX-C which expressly requires that all election cases, including pre-
proclamation controversies, shall be decided by the COMELEC in division,
and the motion for reconsideration shall be decided by the COMELEC en
banc. It follows that the COMELEC is mandated to decide cases first in
division, and then upon motion for reconsideration en banc, only when the
COMELEC exercises its quasi-judicial powers.
The COMELEC is empowered in Section 2(6), Article IX-C of the 1987
Constitution to prosecute cases of violations of election laws. The
prosecution of election law violators involves the exercise of the COMELECs
administrative powers. Thus, the COMELEC en banc can directly approve
the recommendation of its Law Department to file the criminal information for
double registration against petitioners in the instant case. There is no
constitutional requirement that the filing of the criminal information be first
decided by any of the divisions of the COMELEC.

Upon realizing that their residence is situated within the jurisdiction of
Barangay 28 not Barangay 18, petitioners proceeded to Precinct 129-A of
Barangay 28 and registered anew.
Subsequently, petitioners sent a letter to former COMELEC Assistant
Executive Director Jose Pio O. Joson requesting for advice on how to cancel
their previous registration.
In sum, the second sentence of Section 3, Article IX-C of the 1987
Constitution is not applicable in administrative cases, like the instant case
where the COMELEC is determining whether probable cause exists to
charge petitioners for violation of the provision of the Election Code
prohibiting double registration.

Petitioners’ Voters Registration Records were forwarded to the Provincial

Election Supervisor, Atty. Juanito V. Ravanzo, for evaluation, who,
subsequently, recommended filing an information for double registration
against petitioners. The COMELEC affirmed Ravanzo’s resolution.
Petitioners moved for reconsideration, which, was denied by COMELEC en
banc.

ISSUE:
1. WON COMELEC acted with GAD when it recommended the
prosecution of the petitioners despite lack of intent and substantial
compliance with cancellation of double registration?
2. WON COMELEC has to refer this case to its divisions first?

HELD: No on both counts.

42
[G.R. No. 139853. September 5, 2000]
FERDINAND THOMAS M. SOLLER, petitioner, vs. COMMISSION ON
ELECTIONS, REGIONAL TRIAL COURT OF PINAMALAYAN, ORIENTAL
MINDORO (Branch 42) and ANGEL M. SAULONG, respondents.
RESOLUTION
QUISUMBING, J.:
This special civil action for certiorari seeks to annul the resolution
promulgated on August 31, 1999, in COMELEC special relief case SPR No.
10-99. The resolution dismissed petitioner's petition to set aside the orders
of the Regional Trial Court of Pinamalayan, Oriental Mindoro, dated October
1, 1998 and February 1, 1999, which denied petitioner's motion to dismiss
the election protest filed by private respondent against petitioner and the
motion for reconsideration, respectively.
Petitioner and private respondent were both candidates for mayor of the
municipality of Bansud, Oriental Mindoro in the May 11, 1998 elections. On
May 14, 1998, the municipal board of canvassers proclaimed petitioner
Ferdinand Thomas Soller duly elected mayor.
On May 19, 1998, private respondent Angel Saulong filed with the
COMELEC a "petition for annulment of the proclamation/exclusion of
election return".[1] On May 25, 1998, private respondent filed with the
Regional Trial Court of Pinamalayan, Oriental Mindoro, an election protest
against petitioner docketed as EC-31-98.
On June 15, 1998, petitioner filed his answer with counter-protest. Petitioner
also moved to dismiss private respondent's protest on the ground of lack of
jurisdiction, forum-shopping, and failure to state cause of action.[2]
On July 3, 1998, COMELEC dismissed the pre-proclamation case filed by
private respondent.
On October 1, 1998, the trial court denied petitioner's motion to dismiss.
Petitioner moved for reconsideration but said motion was denied. Petitioner
then filed with the COMELEC a petition for certiorari contending that
respondent RTC acted without or in excess of jurisdiction or with grave
abuse of discretion in not dismissing private respondent's election protest.
On August 31, 1999, the COMELEC en banc dismissed petitioner's suit. The
election tribunal held that private respondent paid the required filing fee. It
also declared that the defect in the verification is a mere technical defect
which should not bar the determination of the merits of the case. The
election tribunal stated that there was no forum shopping to speak of.
Under the COMELEC Rules of Procedure, a motion for reconsideration of its
en banc ruling is prohibited except in a case involving an election offense.[3]
Since the present controversy involves no election offense, reconsideration
is not possible and petitioner has no appeal or any plain, speedy and
adequate remedy in the ordinary course of law. Accordingly, petitioner
properly filed the instant petition for certiorari with this Court.
On September 21, 1999, we required the parties to maintain the status quo
ante prevailing as of September 17, 1999, the date of filing of this petition.
Before us, petitioner asserts that the COMELEC committed grave abuse of
discretion amounting to lack or excess of jurisdiction:
[I]
... IN AFFIRMING RESPONDENT RTC'S REFUSAL TO DISMISS PRIVATE
RESPONDENT'S ELECTION PROTEST DESPITE HIS (sic) LACK OF
JURISDICTION OVER THE SAME BY REASON OF THE FAILURE OF THE
PRIVATE RESPONDENT TO PAY ALL THE REQUISITE FILING FEES.
[II]
... IN AFFIRMING RESPONDENT'S RTC'S REFUSAL TO DISMISS
PRIVATE RESPONDENT'S ELECTION PROTEST DESPITE THE
INSUFFICIENCY OF HIS PETITION IN FORM AND SUBSTANCE AND ITS
FAILURE TO STATE A CAUSE OF ACTION.
[III]
...IN AFFIRMING RESPONDENT RTC'S REFUSAL TO DISMISS THE
ELECTION PROTEST BELOW ON THE GROUNDS OF FORUM-
SHOPPING AND FAILURE TO COMPLY WITH THE SUPREME COURT
CIRCULAR REQUIRING A TRUTHFUL CERTIFICATION OF NON-FORUM
SHOPPING DESPITE INCONTROVERTIBLE EVIDENCE THEREOF.[4]
In our view, notwithstanding petitioner's formulation of issues, the principal
question presented for our resolution is whether or not public respondent
COMELEC gravely abused its discretion amounting to lack or excess of
jurisdiction in not ordering the dismissal of private respondent's election
protest.
43
At the outset, even if not squarely raised as an issue, this Court needs to
resolve the question concerning COMELEC's jurisdiction. Unless properly
resolved, we cannot proceed further in this case.
Section 3, Subdivision C of Article IX of the Constitution reads:
"The Commission on Elections may sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to expedite the 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."
Thus, in Sarmiento vs. COMELEC[5] and in subsequent cases,[6] we ruled
that the COMELEC, sitting en banc, does not have the requisite authority to
hear and decide election cases including pre-proclamation controversies in
the first instance. This power pertains to the divisions of the Commission.
Any decision by the Commission en banc as regards election cases decided
by it in the first instance is null and void.
As can be gleaned from the proceedings aforestated, petitioner's petition
with the COMELEC was not referred to a division of that Commission but
was, instead, submitted directly to the Commission en banc. The petition for
certiorari assails the trial court's order denying the motion to dismiss private
respondent's election protest. The questioned order of the trial court is
interlocutory because it does not end the trial court's task of adjudicating the
parties' contentions and determining their rights and liabilities as regards
each other.[7] In our view, the authority to resolve petition for certiorari
involving incidental issues of election protest, like the questioned order of the
trial court, falls within the division of the COMELEC and not on the
COMELEC en banc. Note that the order denying the motion to dismiss is but
an incident of the election protest. If the principal case, once decided on the
merits, is cognizable on appeal by a division of the COMELEC, then, there is
no reason why petitions for certiorari relating to incidents of election protest
should not be referred first to a division of the COMELEC for resolution.
Clearly, the COMELEC en banc acted without jurisdiction in taking
cognizance of petitioner's petition in the first instance.
Since public respondent COMELEC had acted without jurisdiction in this
case, the petition herein is without doubt meritorious and has to be granted.
But in order to write finis to the controversy at bar, we are constrained to also
resolve the issues raised by petitioner, seriatim.
Petitioner contends that private respondent's protest should have been
dismissed outright as the latter failed to pay the amount of P300.00 filing fee
required under the COMELEC rules.[8] Petitioner's contention is supported
by Section 9, Rule 35 of the COMELEC Rules of Procedure[9] and
corresponding receipts[10] itemized as follows:
P368.00 - Filing fee in EC 31-98, O.R. 7023752;
P 32.00 - Filing fee in EC 31-98, O.R. 7022478;
P 46.00 - Summons fee in EC 31-98, O.R. 7023752;
P 4.00 - Summons fee in EC 31-98, O.R. 4167602;
P 10.00 -- Legal Research Fund fee, O.R. 2595144, and;
P 5.00 -- Victim Compensation Fund, O.R. 4167979
-----------
P465.00
Close scrutiny of the receipts will show that private respondent failed to pay
the filing fee of P300.00 for his protest as prescribed by the COMELEC
rules. The amount of P368.00 for which OR 7023752 was issued for the
Judiciary Development Fund as shown by the entries in the cash book of the
clerk of court.[11] Thus, only P32.00 with OR 7022478 credited to the
general fund could be considered as filing fee paid by private respondent for
his protest. A court acquires jurisdiction over any case only upon the
payment of the prescribed docket fee.[12] Patently, the trial court did not
acquire jurisdiction over private respondent's election protest. Therefore,
COMELEC gravely erred in not ordering the dismissal of private
respondent's protest case.
We have in a string of cases[13] had the occasion to rule on this matter. In
Loyola vs. COMELEC, the clerk of court assessed private respondent
therein the incorrect filing fee of P32.00 at the time of filing of the election
protest. Upon filing his counter-protest, petitioner was assessed to pay the
same amount. Subsequently, the trial court remedied the situation by
directing the parties to pay the balance of P268.00. On review, we held that
the lapse was not at all attributable to private respondent and there was
substantial compliance with the filing fee requirement. The error lies in the
Clerk's misapplication and confusion regarding application of Section 9 of
Rule 35 of the COMELEC Rules of Procedure and this Court's resolution
dated September 4, 1990 amending Rule 141 of the Rules of Court. An
election protest falls within the exclusive original jurisdiction of the Regional
Trial Court, in which case the Rules of Court will apply, and that the
COMELEC Rules of Procedure is primarily intended to govern election cases
44
before that tribunal. But the Court declared that this decision must not
provide relief to parties in future cases involving inadequate payment of filing
fees in election cases. Our decisions in Pahilan and Gatchalian bar any
claim of good faith, excusable negligence or mistake in any failure to pay the
full amount of filing fees in election cases.
In Miranda vs. Castillo, private respondents each paid per assessment the
amount of P465.00 as filing fees. Of this amount, P414.00 was allocated for
the JDF, P 10.00 for legal research fund, P5.00 for victim compensation fee,
and only the amount of P32.00 was regarded as filing fee. The Court
considered the amount as partial payment of the P300.00 filing fee under the
COMELEC rules and required payment of the deficiency in the amount of
P268.00. But then again, the Court reiterated the caveat that in view of
Pahilan, Gatchalian, and Loyola cases we would no longer tolerate any
mistake in the payment of the full amount of filing fees for election cases filed
after the promulgation of the Loyola decision on March 27, 1997.
Clearly then, errors in the payment of filing fees in election cases is no
longer excusable. And the dismissal of the present case for that reason is, in
our view, called for.
Besides, there is another reason to dismiss private respondent's election
protest. We note that the verification of aforesaid protest is defective. In the
verification, private respondent merely stated that he caused the preparation
of his petition and he has read and understood all the allegations therein.[14]
Certainly, this is insufficient as private respondent failed to state that the
contents of his election protest are true and correct of his persoral
knowledge.[15] Since the petition lacks proper verification, it should be
treated as an unsigned pleading and must be dismissed.[16]
Further, we find that private respondent did not comply with the required
certification against forum shopping. Private respondent successively filed a
"petition for annulment of the proclamation/exclusion of election return" and
an election protest. Yet, he did not disclose in his election protest that he
earlier filed a petition for annulment of proclamation/exclusion of election
returns.
It could be argued that private respondent's petition for annulment of
proclamation/exclusion of election returns was a pre-proclamation case. The
issues raised in that petition pertain to the preparation and appreciation of
election returns and the proceedings of the municipal board of canvassers.
But note that such petition was filed after the proclamation of petitioner as
the winning candidate, thus, the petition was no longer viable, for pre-
proclamation controversies may no longer be entertained by the COMELEC
after the winning candidates have been proclaimed. It might even be claimed
with some reason that private respondent, by resorting to the wrong remedy,
abandoned his pre-proclamation case earlier filed.[17]
Nonetheless, private respondent's belief that he no longer had a pending
case before the COMELEC because he deemed it abandoned upon filing of
his protest is not a valid reason for non-disclosure of the pendency of said
pre-proclamation case. Note that the COMELEC dismissed private
respondent's pre-proclamation case only on July 3, 1998. Before the
dismissal, said case was legally still pending resolution. Similarly, the fact
that private respondent's protest was not based on the same cause of action
as his pre-proclamation case is not a valid excuse for not complying with the
required disclosure in the certification against forum shopping. The
requirement to file a certificate of non-forum shopping is mandatory. Failure
to comply with this requirement cannot be excused by the fact that a party is
not guilty of forum shopping. The rule applies to any complaint, petition,
application or other initiatory pleading, regardless of whether the party filing it
has actually committed forum shopping. Every party filing any initiatory
pleading is required to swear under oath that he has not and will not commit
forum shopping. Otherwise we would have an absurd situation, as in this
case, where the parties themselves would be the judge of whether their
actions constitute a violation of the rule, and compliance therewith would
depend on their belief that they might or might not have violated the
requirement. Such interpretation of the requirement would defeat the very
purpose of the rule.[18]
Taking into account all the foregoing circumstances in this case, we are
persuaded that respondent Regional Trial Court erred and committed grave
abuse of discretion in failing to dismiss private respondent's election protest
against petitioner. And to reiterate, respondent COMELEC en banc had no
jurisdiction to affirm the refusal of respondent trial court to dismiss private
respondent's election protest.
WHEREFORE, the instant petition is GRANTED. The assailed
RESOLUTION of public respondent COMELEC is hereby ANNULLED AND
SET ASIDE. The temporary restraining order issued by this Court on
September 21, 1999, is made permanent. The Regional Trial Court of
Pinamalayan, Oriental Mindoro, Branch 42, is hereby ordered to DISMISS
election protest EC No. 31-98. Costs against private respondent.
SO ORDERED.
45
CASE DIGEST proclamation/exclusion of election return and an election protest. Yet, he did
not disclose in his election protest that he earlier filed a petition for
Soller v. COMELEC annulment of proclamation/exclusion of election returns.

Facts:
Ferdinand Thomas Soller and Angel Saulong were both candidates
for mayor of the Municipality of Bansud, Oriental Mindoro in the May 1998
elections. On May 14, 1998, Soller was proclaimed by the municipal board of
canvassers as the duly elected mayor. On May 19, 1998, Saulong filed with
the COMELEC a petition for annulment of the proclamation/exclusion of
election return. On May 25, 1998, Saulong also filed an election protest
before the RTC. Soller moved to dismiss Saulong’s protest on the ground of
lack of jurisdiction, forum-shopping and failure to state a cause of action. On
July 3, 1998, the COMELEC dismissed the petition filed by Saulong. On the
other hand, the RTC denied Soller’s motion to dismiss. Soller then filed a
petition for certiorari with the COMELEC contending that the RTC acted
without jurisdiction or with grave abuse of discretion in not dismissing the
election protest. COMELEC en banc dismissed the petition. Hence, this suit.

Issue:
Whether the COMELEC, sitting en banc, has jurisdiction over
Soller’s petition

Held:
No. Sarmiento v. COMELEC applies. The authority to resolve a
petition for certiorari involving incidental issues of election protest, like the
questioned order of the trial court falls within the jurisdiction of the
COMELEC by division and not en banc.

Issue:
Whether the COMELEC gravely abused its discretion amounting to
lack or excess of jurisdiction in not ordering the dismissal of private
respondent's election protest

Held:
No. A close scrutiny of the receipts will show that Saulong failed to
pay the filing fee of 300 pesos for his protest as prescribed by the
COMELEC rules. A court acquires jurisdiction over any case only upon
paymeny of the prescribed docket fee. Patently, the RTC did not acquire
jurisdiction over Saulong’s protest. The SC also held that the verification of
the protest was defective. Since the petition lacked proper verification, it
should be treated as an unsigned pleading and must be dismissed. The
protest likewise failed to comply with the required certification against forum
shopping. Saulong successively filed a petition for annulment of the

46
[G.R. Nos. 154796-97. October 23, 2003]
RAYMUNDO A. BAUTISTA @ OCA, petitioner, vs. HONORABLE
COMMISSION ON ELECTIONS, JOSEFINA P. JAREO, HON. MAYOR
RAYMUND M. APACIBLE, FRANCISCA C. RODRIGUEZ, AGRIPINA B.
ANTIG, MARIA G. CANOVAS, and DIVINA ALCOREZA, respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari and prohibition with a prayer for the issuance
of a temporary restraining order to nullify Resolution Nos. 5404 and 5584 of
the Commission on Elections (COMELEC) en banc. Resolution No. 5404[1]
dated 23 July 2002 ordered the deletion of Raymundo A. Bautistas (Bautista)
name from the official list of candidates for the position of Punong Barangay
of Barangay Lumbangan, Nasugbu, Batangas (Lumbangan) in the 15 July
2002 elections. Resolution No. 5584[2] dated 10 August 2002 provided for
the policy of the COMELEC regarding proclaimed candidates found to be
ineligible for not being registered voters in the place where they ran for
office.
The Facts
On 10 June 2002, Bautista filed his certificate of candidacy for Punong
Barangay in Lumbangan for the 15 July 2002 barangay elections. Election
Officer Josefina P. Jareo (Election Officer Jareo) refused to accept Bautistas
certificate of candidacy because he was not a registered voter in
Lumbangan. On 11 June 2002, Bautista filed an action for mandamus
against Election Officer Jareo with the Regional Trial Court of Batangas,
Branch 14 (trial court).[3] On 1 July 2002, the trial court ordered Election
Officer Jareo to accept Bautistas certificate of candidacy and to include his
name in the certified list of candidates for Punong Barangay. The trial court
ruled that Section 7 (g) of COMELEC Resolution No. 4801[4] mandates
Election Officer Jareo to include the name of Bautista in the certified list of
candidates until the COMELEC directs otherwise.[5] In compliance with the
trial courts order, Election Officer Jareo included Bautista in the certified list
of candidates for Punong Barangay. At the same time, Election Officer Jareo
referred the matter of Bautistas inclusion in the certified list of candidates
with the COMELEC Law Department on 5 July 2002.[6] On 11 July 2002, the
COMELEC Law Department recommended the cancellation of Bautistas
certificate of candidacy since he was not registered as a voter in
Lumbangan. The COMELEC en banc failed to act on the COMELEC Law
Departments recommendation before the barangay elections on 15 July
2002.
During the 15 July 2002 barangay elections, Bautista and private respondent
Divina Alcoreza (Alcoreza) were candidates for the position of Punong
Barangay in Lumbangan. Bautista obtained the highest number of votes
(719) while Alcoreza came in second with 522 votes, or a margin of 197
votes. Thus, the Lumbangan Board of Canvassers (Board of Canvassers)[7]
proclaimed Bautista as the elected Punong Barangay[8] on 15 July 2002. On
8 August 2002, Bautista took his oath of office as Punong Barangay before
Congresswoman Eileen Ermita-Buhain of the First District of Batangas. On
16 August 2002, Bautista again took his oath of office during a mass oath-
taking ceremony administered by Nasugbu Municipal Mayor Raymund
Apacible.
Meanwhile, COMELEC issued Resolution No. 5404 on 23 July 2002 and
Resolution No. 5584 on 10 August 2002 (COMELEC Resolutions). In
Resolution No. 5404, the COMELEC en banc resolved to cancel Bautistas
certificate of candidacy. The COMELEC en banc directed the Election
Officer to delete Bautistas name from the official list of candidates. The
dispositive portion of Resolution No. 5404 reads:
Considering the foregoing, the Commission, RESOLVED, as it hereby
RESOLVES, to ADOPT the recommendation, as follows:
1. To DENY due course to/or cancel the certificates of candidacy of the
following:
A. For Barangay Officials:
1. CONRADO S. PEDRAZA Navotas
2. PIO B. MALIGAYA Sampaga
3. PATERNO H. MENDOZA Sampaga
all of Balayan, Batangas.
B. a. RAY OCA A. BAUTISTA, candidate for Punong Barangay of Brgy.
Lumbangan, Nasugbu, Batangas, for not being registered voters of
barangays where they are running for an office;
2. To DIRECT the Election Officers of Balayan, Batangas and Nasugbu,
Batangas, to delete their names in the official list of candidates in their
respective Barangays without prejudice to the filing of complaint against
47
them for misrepresentation under Section 74 of the Omnibus Election Code
if the evidence so warrants.
Let the Law Department implement this resolution.
On the other hand, Resolution No. 5584 expressed COMELECs policy
regarding proclaimed candidates found to be ineligible for not being
registered voters in the place of their election, thus:
ON PROCLAIMED CANDIDATES FOUND TO BE INELIGIBLE FOR BEING
NOT REGISTERED VOTERS IN THE PLACE WHERE THEY WERE
ELECTED.
(a) For a proclaimed candidate whose certificate of candidacy was denied
due course to or cancelled by virtue of a Resolution of the Commission En
Banc albeit such Resolution did not arrive on time.
1. To DIRECT the Election Officers concerned to implement the resolution of
the Commission deleting the name of the candidate whose certificate of
candidacy was denied due course;
2. To DIRECT the candidate whose name was ordered deleted to cease and
desist from taking his oath of office or from assuming the position to which
he was elected, unless a temporary restraining order was issued by the
Supreme Court; and
3. To RECONVENE the Board of Canvassers for the purpose of proclaiming
the duly-elected candidates and correcting the Certificate of Canvass of
Proclamation.
(b) For a proclaimed candidate who is subsequently declared disqualified by
the Commission in the disqualification case filed against him prior to his
proclamation.
1. To DIRECT the proclaimed disqualified candidate to cease and desist
from taking his oath of office or from assuming the position to which he was
elected, unless a temporary restraining order was issued by the Supreme
Court; and
2. To RECONVENE the Board of Canvassers for the purpose of proclaiming
the duly-elected candidates and correcting the Certificate of Canvass of
Proclamation.
(c) For a proclaimed candidate who is found to be ineligible only after his
proclamation (i.e., There is no Resolution denying due course to or canceling
his certificate of candidacy and there is no petition for disqualification
pending against him before his proclamation.)
1. To DISMISS any and all cases questioning the eligibility of such candidate
for LACK OF JURISDICTION, the proper remedy being a quo warranto case
before the metropolitan or municipal trial court.
In a letter dated 19 August 2002,[9] COMELEC Commissioner Luzviminda
Tancangco directed Election Officer Jareo to (1) delete the name of Bautista
from the official list of candidates for Punong Barangay of Barangay
Lumbangan; (2) order the Board of Canvassers of Lumbangan to reconvene
for the purpose of proclaiming the elected Punong Barangay with due notice
to all candidates concerned; and (3) direct the proclaimed disqualified
candidate Bautista to cease and desist from taking his oath of office or from
assuming the position which he won in the elections, citing COMELEC
Resolution Nos. 5404 and 5584. Consequently, Election Officer Jareo issued
on 20 August 2002 an Order[10] deleting the name of Bautista from the list
of candidates for Punong Barangay. The Order also prohibited Bautista from
assuming the position and discharging the functions of Punong Barangay of
Lumbangan pursuant to the COMELEC Resolutions. The Board of
Canvassers reconvened on 23 August 2002 and after making the necessary
corrections in the Certificate of Canvass of Votes, proclaimed Alcoreza as
the winning Punong Barangay.[11] Alcoreza thus assumed the post of
Punong Barangay of Lumbangan.
On 26 August 2002, Bautista wrote a letter to COMELEC requesting the
latter for reconsideration of the COMELEC Resolutions.
On 9 September 2002, while his letter for reconsideration was still pending
with the COMELEC, Bautista filed this petition for certiorari and prohibition
with a prayer for the issuance of a temporary restraining order.
The Issues
The issues raised are:
1. Whether the COMELEC en banc committed grave abuse of discretion
amounting to excess or lack of jurisdiction when it issued Resolution Nos.
5404 and 5584;
2. Whether the COMELEC deprived Bautista of due process when the
COMELEC en banc issued Resolution Nos. 5404 and 5584; and
3. Whether it was proper to proclaim Alcoreza as Punong Barangay in view
of the alleged disqualification of the winning candidate Bautista.
48

The Courts Ruling
Before considering the merits of the case, we shall first resolve the
procedural questions raised by respondents. Respondents contend that a
motion for reconsideration of the assailed COMELEC Resolutions is a
prerequisite to the filing of a petition for certiorari and prohibition. Absent any
extraordinary circumstances, a party who has filed a motion for
reconsideration should wait for the resolution of the motion before filing the
petition for certiorari. Respondents allege that the instant petition is
premature because Bautista has a pending motion for reconsideration of the
COMELEC Resolutions. Respondents claim that Bautista filed the instant
petition barely two weeks after filing the motion for reconsideration with the
COMELEC en banc without waiting for the resolution of his motion.[12]
The contention of respondents is wrong. The case[13] cited by respondents
refers to a motion for reconsideration pending before the COMELEC en banc
seeking the reconsideration of a resolution rendered by a COMELEC
division. Rule 19 of the 1993 COMELEC Rules of Procedure allows a motion
to reconsider a decision, resolution, order, or ruling of a division. However,
Section 1 (d), Rule 13 of the 1993 COMELEC Rules of Procedure prohibits a
motion to reconsider a resolution of the COMELEC en banc except in cases
involving election offenses. As held in Angelia v. Commission on
Elections:[14]
We hold that petitioner acted correctly in filing the present petition because
the resolution of the COMELEC in question is not subject to reconsideration
and, therefore, any party who disagreed with it only had one recourse, and
that was to file a petition for certiorari under Rule 65 of the Rules of Civil
Procedure. Rule 13, 1 of the COMELEC Rules of Procedure provides:
What Pleadings are Not Allowed. The following pleadings are not allowed:
.. . .
d) motion for reconsideration of an en banc ruling, resolution, order or
decision except in election offense cases;
...
As the case before the COMELEC did not involve an election offense,
reconsideration of the COMELEC resolution was not possible and petitioner
had no appeal or any plain, speedy, and adequate remedy in the ordinary
course of law. For him to wait until the COMELEC denied his motion would
be to allow the reglementary period for filing a petition for certiorari with this
Court to run and expire.
The instant controversy involves resolutions issued by the COMELEC en
banc which do not pertain to election offenses. Hence, a special civil action
for certiorari is the proper remedy[15] in accordance with Section 2, Rule 64
of the Rules of Court which provides:
SEC. 2. Mode of review. A judgment or final order or resolution of the
Commission on Elections and the Commission on Audit may be brought by
the aggrieved party to the Supreme Court on certiorari under Rule 65 except
as hereinafter provided. (Emphasis supplied)
Whether the COMELEC en banc committed grave
abuse of discretion amounting to excess or lack of
jurisdiction in issuing Resolution Nos. 5404 and 5584
Bautista argues that without any disqualification case formally filed against
him, the COMELEC has no jurisdiction to take cognizance of his case. The
COMELEC cannot motu proprio act on the issue of his alleged lack of
qualification. Even assuming that there was a disqualification case filed
against him, it is the COMELEC sitting in division which has jurisdiction and
not the COMELEC en banc.[16]
On the other hand, respondents allege that the Constitution vests the
COMELEC with the power to enforce and administer all laws and regulations
relative to the conduct of elections. The Constitution thus empowers the
COMELEC to pass upon the qualification of candidates for elective office.
Furthermore, respondents submit that the COMELECs jurisdiction to cancel
the certificate of candidacy of disqualified candidates is already settled
jurisprudence.[17]
Respondents cited cases to support their claim that the COMELEC has
jurisdiction to cancel the certificates of candidacy of disqualified candidates.
However, the COMELEC heard these cases first in division and not en banc
in the first instance.
In Garvida v. Sales, Jr.,[18] the Court held that it is the COMELEC sitting in
division and not the COMELEC en banc which has jurisdiction over petitions
to cancel a certificate of candidacy. The Court held:
x x x The Omnibus Election Code, in Section 78, Article IX, governs the
procedure to deny due course to or cancel a certificate of candidacy, viz:
49
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. -
A verified petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by any person exclusively on the ground that any
material representation contained therein as required under Section 74
hereof is false. The petition may be filed at any time not later than twenty-five
days from the time of filing of the certificate of candidacy and shall be
decided, after due notice and hearing, not later than fifteen days before
election.
In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides
that a petition to deny due course to or cancel a certificate of candidacy for
an elective office may be filed with the Law Department of the COMELEC on
the ground that the candidate has made a false material representation in his
certificate. The petition may be heard and evidence received by any official
designated by the COMELEC after which the case shall be decided by the
COMELEC itself.
Under the same Rules of Procedure, jurisdiction over a petition to cancel a
certificate of candidacy lies with the COMELEC sitting in Division, not en
banc. Cases before a Division may only be entertained by the COMELEC en
banc when the required number of votes to reach a decision, resolution,
order or ruling is not obtained in the Division. Moreover, only motions to
reconsider decisions, resolutions, orders or rulings of the COMELEC in
Division are resolved by the COMELEC en banc.
It is therefore the COMELEC sitting in Divisions that can hear and decide
election cases. This is clear from Section 3 of the said Rules thus:
Sec. 3. The Commission in Sitting in Divisions. The Commission shall sit in
two (2) Divisions to hear and decide protests or petitions in ordinary actions,
special actions, special cases, provisional remedies, contempt and special
proceedings except in accreditation of citizens arms of the Commission.
In the instant case, the COMELEC en banc did not refer the case to any of
its Divisions upon receipt of the petition. It therefore acted without jurisdiction
or with grave abuse of discretion when it entertained the petition and issued
the order of May 2, 1996. (Emphasis supplied)
In this case, Election Officer Jareo reported to the COMELEC Law
Department Bautistas ineligibility for being a non-registered voter. The
COMELEC Law Department recommended to the COMELEC en banc to
deny due course or to cancel Bautistas certificate of candidacy. The
COMELEC en banc approved the recommendation in Resolution No. 5404
dated 23 July 2002.
A division of the COMELEC should have first heard this case. The
COMELEC en banc can only act on the case if there is a motion for
reconsideration of the decision of the COMELEC division. Hence, the
COMELEC en banc acted without jurisdiction when it ordered the
cancellation of Bautistas certificate of candidacy without first referring the
case to a division for summary hearing.
The proceeding on the cancellation of a certificate of candidacy does not
merely pertain to the administrative functions of the COMELEC. Cancellation
proceedings involve the COMELECs quasi-judicial functions. The Court
discussed the difference between administrative and quasi-judicial functions
in Villarosa v. Commission on Elections:[19]
In the concurring opinion of Justice Antonio in University of Nueva Caceres
vs. Martinez, 56 SCRA 148, he noted that
(t)he term administrative connotes, or pertains, to administration, especially
management, as by managing or conducting, directing or superintending, the
execution, application, or conduct of persons or things. It does not entail an
opportunity to be heard, the production and weighing of evidence, and a
decision or resolution thereon.
While a quasi-judicial function is
A term which applies to the action, discretion, etc., of public administrative
officers or bodies, who are required to investigate facts, or ascertain the
existence of facts, hold hearings, and draw conclusions from them, as a
basis for their official action and to exercise discretion of a judicial nature.
(Emphasis supplied)
In the exercise of its adjudicatory or quasi-judicial powers, the Constitution
mandates the COMELEC to hear and decide cases first by division and upon
motion for reconsideration, by the COMELEC en banc.[20] In Baytan v.
COMELEC,[21] the Court expounded on the administrative and quasi-judicial
powers of the COMELEC. The Court explained:
Under Section 2, Article IX-C of the 1987 Constitution, the COMELEC
exercises both administrative and quasi-judicial powers. The COMELECs
administrative powers are found in Section 2 (1), (3), (4), (5), (6), (7), (8),
and (9) of Article IX-C. The 1987 Constitution does not prescribe how the
COMELEC should exercise its administrative powers, whether en banc or in
division. The Constitution merely vests the COMELECs administrative
powers in the Commission on Elections, while providing that the COMELEC
may sit en banc or in two divisions. Clearly, the COMELEC en banc can act
50
directly on matters falling within its administrative powers. Indeed, this has
been the practice of the COMELEC both under the 1973 and 1987
Constitutions.
On the other hand, the COMELECs quasi-judicial powers are found in
Section 2 (2) of Article IX-C, to wit:
Section 2. The Commission on Elections shall exercise the following powers
and functions:
xxx
(2) Exercise exclusive original jurisdiction over all contests relating to the
elections, returns, and qualifications of all elective regional, provincial, and
city officials, and appellate jurisdiction over all contests involving elective
municipal officials decided by trial courts of general jurisdiction, or involving
elective barangay officials decided by trial courts of limited jurisdiction.
Decisions, final orders, or rulings of the Commission on election contests
involving elective municipal and barangay offices shall be final, executory,
and not appealable.
The COMELECs exercise of its quasi-judicial powers is subject to Section 3
of Article IX-C which expressly requires that all election cases, including pre-
proclamation controversies, shall be decided by the COMELEC in division,
and the motion for reconsideration shall be decided by the COMELEC en
banc. It follows, as held by the Court in Canicosa, that the COMELEC is
mandated to decide cases first in division, and then upon motion for
reconsideration en banc, only when the COMELEC exercises its quasi-
judicial powers. (Emphasis supplied)
Under Section 3, Rule 23 of the 1993 COMELEC Rules of Procedure, a
petition for the denial or cancellation of a certificate of candidacy must be
heard summarily after due notice. It is thus clear that cancellation
proceedings involve the exercise of the quasi-judicial functions of the
COMELEC which the COMELEC in division should first decide. More so in
this case where the cancellation proceedings originated not from a petition
but from a report of the election officer regarding the lack of qualification of
the candidate in the barangay election. The COMELEC en banc cannot short
cut the proceedings by acting on the case without a prior action by a division
because it denies due process to the candidate.
Whether the COMELEC deprived Bautista of due
process when it issued Resolution Nos. 5404 and 5584
Bautista alleges that the COMELEC denied him due process because there
was no notice and hearing prior to the issuance of Resolution Nos. 5404 and
5584. He became aware of the issuance of the COMELEC Resolutions only
when he received a copy of Election Officer Jareos Order dated 20 August
2002 ordering him to cease and desist from assuming the position of Punong
Barangay.[22]
The Solicitor General submits that the COMELEC did not deprive Bautista of
due process. Bautista had the chance to be heard and to present his side
when he filed a letter to the COMELEC en banc requesting reconsideration
of the Resolutions.[23]
This Court has explained the nature of due process in Stayfast Philippines
Corporation v. NLRC:[24]
The essence of due process is simply the opportunity to be heard, or as
applied to administrative proceedings, an opportunity to explain ones side or
an opportunity to seek a reconsideration of the action or ruling complained
of.
A formal or trial-type hearing is not at all times and in all instances essential.
The requirements are satisfied where the parties are afforded fair and
reasonable opportunity to explain their side of the controversy at hand. What
is frowned upon is absolute lack of notice and hearing. x x x (Emphasis
supplied)
The opportunity to be heard does not only refer to the right to present verbal
arguments in court during a formal hearing.[25] There is due process when a
party is able to present evidence in the form of pleadings.[26] However, the
COMELEC did not give Bautista such opportunity to explain his side. The
COMELEC en banc issued Resolution Nos. 5404 and 5584 without prior
notice and hearing.
We cannot ignore the importance of prior notice and hearing. Severe
consequences attach to the COMELEC Resolutions which not only ordered
the cancellation of the certificate of candidacy of Bautista but also the
annulment of his proclamation as Punong Barangay. What is involved here
is not just the right to be voted for public office but the right to hold public
office. As held in Sandoval v. Commission on Elections:[27]
x x x Although the COMELEC is clothed with jurisdiction over the subject
matter and issue of SPC No. 98-143 and SPC No. 98-206, we find the
exercise of its jurisdiction tainted with illegality. We hold that its order to set
aside the proclamation of petitioner is invalid for having been rendered
51
without due process of law. Procedural due process demands prior notice
and hearing. Then after the hearing, it is also necessary that the tribunal
show substantial evidence to support its ruling. In other words, due process
requires that a party be given an opportunity to adduce his evidence to
support his side of the case and that the evidence should be considered in
the adjudication of the case. The facts show that COMELEC set aside the
proclamation of petitioner without benefit of prior notice and hearing and it
rendered the questioned order based solely on private respondents
allegations. We held in Bince, Jr. vs. COMELEC:
Petitioner cannot be deprived of his office without due process of law.
Although public office is not property under Section 1 of the Bill of Rights of
the Constitution, and one cannot acquire a vested right to public office, it is,
nevertheless, a protected right. Due process in proceedings before the
COMELEC, exercising its quasi-judicial functions, requires due notice and
hearing, among others. Thus, although the COMELEC possesses, in
appropriate cases, the power to annul or suspend the proclamation of any
candidate, we had ruled in Farinas vs. Commission on Elections, Reyes vs.
Commission on Elections and Gallardo vs. Commission on Elections that the
COMELEC is without power to partially or totally annul a proclamation or
suspend the effects of a proclamation without notice and hearing. (Emphasis
supplied)
The fact that Bautista was able to file a letter with the COMELEC en banc
requesting for reconsideration of the Resolutions is beside the point. To
reiterate, the 1993 COMELEC Rules of Procedure prohibit a motion for
reconsideration of a COMELEC en banc resolution except in cases involving
election offenses.
Respondents likewise submit that there was no need for presentation and
evaluation of evidence since the issue of whether Bautista was a registered
voter is easily resolved by looking at the COMELEC registration records.[28]
This reasoning fails to consider the instances where a voter may be
excluded through inadvertence or registered with an erroneous or misspelled
name.[29] Indeed, if it was just a simple matter of looking at the record of
registered voters, then the COMELEC would not have included Section 7
(g)[30] in its Resolution No. 4801. This Section allows candidates who are
not registered voters to be included in the certified list of candidates until the
COMELEC directs otherwise.
Rule 23 of the 1993 COMELEC Rules of Procedure provides for the twin
requirements of prior notice and hearing, as follows:
Rule 23 Petition to Deny Due Course to or Cancel Certificates of Candidacy
Section 1. Grounds for Denial of Certificate of Candidacy. A petition to deny
due course to or cancel, a certificate of candidacy for any elective office may
be filed with the Law Department of the Commission by any citizen of voting
age or a duly registered political party, organization, or coalition of political
parties on the exclusive ground that any material representation contained
therein as required by law is false.
Sec. 2. Period to File Petition. The petition must be filed within five (5) days
following the last day for the filing of certificates of candidacy.
Sec. 3. Summary Proceeding. The petition shall be heard summarily after
due notice.
Sec. 4. Delegation of Reception of Evidence. The Commission may
designate any of its officials who are members of the Philippine Bar to hear
the case and receive evidence. (Emphasis supplied)
A summary proceeding does not mean that the COMELEC could do away
with the requirements of notice and hearing. The COMELEC should have at
least given notice to Bautista to give him the chance to adduce evidence to
explain his side in the cancellation proceeding. The COMELEC en banc
deprived Bautista of procedural due process of law when it approved the
report and recommendation of the Law Department without notice and
hearing.[31]
Whether Bautista was a registered voter of Barangay
Lumbangan when he filed his certificate of candidacy
The events[32] that transpired after the 15 July 2002 elections necessitate
the early resolution of this case. The Court deems it proper not to remand
the case to the COMELEC to avoid further delay. The Court will resolve this
case based on the pleadings submitted by the parties.
Under the Revised Administrative Code,[33] one of the qualifications of an
elective municipal officer is that he must be a qualified voter in his
municipality. Section 2174 of the Revised Administrative Code reads:
Section 2174. Qualifications of elective municipal officer. An elective
municipal officer must, at the time of the election, be a qualified voter in his
municipality and must have been resident therein for at least one year, and
must not be less than twenty-three years of age. He must also be able to
read and write intelligently either English, Spanish, or the local dialect.
(Emphasis supplied)
52
On the other hand, under the Republic Act No. 2370,[34] otherwise known
as the Barrio Charter, a candidate for the barrio council[35] must be a
qualified elector. Section 8 of the Barrio Charter reads:
Section 8. Qualifications for election to the barrio council. Candidates for
election to the barrio council:
(a) Must be a qualified elector and must have been a resident of the barrio
for at least six months prior to the election; and
(b) Must not have been convicted of a crime involving moral turpitude or of a
crime which carries a penalty of at least one year imprisonment. (Emphasis
supplied)
Thus, in the 1958 case of Rocha v. Cordis,[36] the Court held that a
candidate for an elective municipal office did not have to be a registered
voter in the municipality to qualify to run for an elective municipal office.
Citing the earlier case of Yra v. Abao,[37] the Court ruled that the words
qualified elector meant a person who had all the qualifications provided by
law to be a voter and not a person registered in the electoral list. In the same
vein, the term qualified when applied to a voter does not necessarily mean
that a person must be a registered voter.
However, under the Local Government Code of 1991,[38] which took effect
on 1 January 1992, an elective local official, including a Punong Barangay,
must not only be a qualified elector or a qualified voter, he must also be a
registered voter.[39] Section 39 of the Local Government Code provides:
SEC. 39. Qualifications. (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province
or, in the case of a member of the sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan, the district where he intends to be
elected; a resident therein for at least one (1) year immediately preceding
the day of the election; and able to read and write Filpino or any other local
language or dialect.
xxx
(e) Candidates for the position of punong barangay or member of the
sangguniang barangay must be at least eighteen (18) years of age on
election day.
xxx
These qualifications were reiterated in Section 2 of COMELEC Resolution
No. 4801 dated 23 May 2002 which prescribed the guidelines on the filing of
certificates of candidacy in connection with the 15 July 2002 elections.
Section 2 reads:
Sec. 2. Qualifications. (a) Candidates for Punong Barangay and
Sangguniang Barangay Kagawad must be:
(1) Filipino citizens;
(2) At least 18 years old on election day;
(3) Able to read and write Pilipino or any local language or dialect; and
(4) Registered voters of the barangay where they intend to run for office and
residents thereof for at least one (1) year immediately preceding the day of
the election. (Emphasis supplied)
Section 7 of COMELEC Resolution No. 4801 likewise requires the Election
Officer to verify whether the candidates are registered voters and possess all
the qualifications of a candidate. Thus, Section 7 (f) and (g) read:
(f) Before the preparation of the certified lists of candidates it shall be the
duty of the Election Officer to: (1) verify whether all candidates for barangay
and sangguniang kabataan positions are registered voters of the barangay
where they file their certificates of candidacy; and (2) examine the entries of
the certificates of candidacy and determine on the basis of said entries
whether the candidate concerned possesses all the qualifications of a
candidate.
(g) If there are candidates who are not registered voters in the barangay
where they run for barangay or sangguniang kabataan positions or do not
possess all the other qualifications of a candidate, he shall make the
corresponding report by REGISTERED MAIL and by RUSH TELEGRAM to
the Law Department of the Commission within three (3) days from the last
day for filing the certificates of candidacy, copy furnished the Provincial
Election Supervisor and the Regional Election Director. The names of said
candidates, however, shall still be included in the certified lists of candidates
until the Commission directs otherwise. (Emphasis supplied)
It is thus clear that the law as it now stands requires a candidate for Punong
Barangay to be a registered voter of the barangay where he intends to run
for office.
53
Bautista admitted in his affidavit[40] dated 24 August 2002 that he was not a
registered voter of Barangay Lumbangan, thus:
AFFIDAVIT
That I, RAYMUNDO A. @ OCA BAUTISTA, of legal age, married,
Mechanical Engineer by profession, Filipino citizen and have been residing
at Sitio Calamundingan, Barangay Lumbangan, Nasugbu, Batangas, after
being duly sworn according to law depose and say:
1. That I was born at Barangay Tumalim, Nasugbu, Batangas, on March 15,
1954 and upon reaching the age of four (4) our family transferred to Sitio
Calamundingan, Barangay Lumbangan, Nasugbu, Batangas and I have
been permanently residing thereat since that time up to the present, and this
fact can be attested to by our immediate neighbors.
2. That since the time I reached the age of majority, I have participated both
in the National and Local Elections up to the year 1995 and as matter of fact
I ran for the Office of member of the Municipal Council in the year 1992
Elections.
3. Sometime during the late part of the year 1995, I went to the United States
of America scounting (sic) for a good job but I was not able to find one so I
went home in the year 2000 but again believing that I could land a job in the
United States, I again went there but I was not able to get a job therein and
so I went back to the Philippines in the year 2001 but I found out that my
name was no longer included in the list of registered voters at Barangay
Lumbangan, Nasugbu, Batangas.
4. Sometime in the year 2002, I personally went to the Office of the Local
Election Registrar particularly talking to Miss Josefina P. Jareo in order to
register because as I know, to run for the Office of Barangay Chairman, I
have to be a registered voter in our Barangay.
5. However, I was denied registration because according to her, her Office is
not open for registration at any time and I should wait for the General
Registration and for that reason I was not able to register.
xxx
11. That had I known that there is a provision in Section 52, under paragraph
(k) A, when Miss Josefina P. Jareo denied my request for registration as a
voter, I would have filed a Petition for Mandamus with the proper Court so
that she can be ordered to register me as a voter in Barangay Lumbangan,
Nasugbu, Batangas so that any and all technicality may be
avoided.(Emphasis supplied)
According to Bautistas affidavit, he was practically out of the country from
1995 until 2001. When the certified list of voters ceased to be effective and
operative after the barangay elections in 1997, qualified voters had to
register again to vote in any election. Apparently, Bautista failed to register
during the general registration of voters conducted by the COMELEC in
1997 since he was still out of the country during that time. Republic Act No.
8189 (The Voters Registration Act of 1996) provides for a system of
continuing registration of voters. Thus, Bautista should have registered anew
in the office of the Election Officer when he came back to the Philippines in
2001 and learned that his name was no longer included in the roster of
registered voters. The pertinent provisions of RA No. 8189 read:
SEC. 7. General Registration of Voters. Immediately after the barangay
elections in 1997, the existing certified list of voters shall cease to be
effective and operative. For purposes of the May 1998 elections and all
elections, plebiscites, referenda, initiatives, and recall subsequent thereto,
the Commission shall undertake a general registration of voters before the
Board of Election Inspectors on June 14, 15, 21 and 22 and, subject to the
discretion of the Commission, on June 28 and 29, 1997 in accordance with
this Act.
SEC. 8. System of Continuing Registration of Voters. The personal filing of
application of registration of voters shall be conducted daily in the office of
the Election Officer during regular office hours. No registration shall,
however be conducted during the period starting one hundred twenty (120)
days before a regular election and ninety (90) days before a special election.
xxx
SEC. 10. Registration of Voters. A qualified voter shall be registered in the
permanent list of voters in a precinct of the city or municipality where he
resides to be able to vote in any election. To register as a voter, he shall
personally accomplish an application form for registration as prescribed by
the Commission in three (3) copies before the Election Officer on any date
during office hours after having acquired the qualifications of a voter.
(Emphasis supplied)
xxx
It is thus clear that Bautista was remiss in his duty to ensure his right to vote
and to be voted for public office. As early as 2001, he was already aware
that his name was no longer included in the roster of registered voters. Yet,
54
Bautista chose not to register anew that year despite his knowledge that he
needed to register as a voter in the barangay to run for the office of Punong
Barangay.
Bautista alleges that his non-registration as a voter of Barangay Lumbangan
was due to the refusal of Election Officer Jareo to register him sometime in
January 2002.[41] Aside from his bare allegation that he tried to register in
January 2002, Bautista did not proffer any other proof like a duly
accomplished application form for registration to substantiate his claim that
he indeed attempted to register anew. On the other hand, Election Officer
Jareo denies Bautistas allegations in her comment filed on 10 October 2002,
thus:
COMMENT
COMES NOW Respondent JOSEPINA P. JAREO (sic) and to this
Honorable Supreme Court by way of comment to the Petition for Certiorari
and Prohibition with Prayer for the Issuance of Temporary Restraining Order,
filed by herein Petitioner, most respectfully states that:
1. Respondent JOSEPINA P. JAREO (sic) is the Election Officer of
Nasugbu, Batangas, while petitioner, RAYMUNDO A. BAUTISTA was one of
the candidates for the Barangay Chairman of Barangay Lumbangan,
Nasugbu, Batangas, in the recently concluded barangay elections;
2. Based on the records in our files, petitioner was not and is not a registered
voter of Barangay Lumbangan or any other barangays in Nasugbu,
Batangas;
3. There was never an instance during the period starting June 1997 up to
December 26, 2001 when registration of voters for the updating of the Voters
Registration Record had been undertaken by the Commission on Elections
on an on again/off again system, did petitioner RAYMUNDO BAUTISTA
come to our office to check or ensure that he is still in the active list of voters
of Barangay Lumbangan, i.e., assuming that he was registered as a voter
thereof, in the first place;
4. The last day of registration of voters (new or transferee) had been last
December 26, 2001 and registration shall resume again, this coming
September 16, 2002. In the meantime, no general registration nor special
registration had been mandated by the Commission on Election (COMELEC,
for brevity) between the period December 27, 2001 until September 15,
2002;
5. I only met petitioner RAYMUNDO BAUTISTA for the first time when he
came to our office to file his Certificate of Candidacy last June 10, 2002,
which was the last day set by the COMELEC for the filing of Certificates of
Candidacy;
xxx
Bautista was aware when he filed his certificate of candidacy for the office of
Punong Barangay that he lacked one of the qualifications that of being a
registered voter in the barangay where he ran for office. He therefore made
a misrepresentation of a material fact when he made a false statement in his
certificate of candidacy that he was a registered voter in Barangay
Lumbangan.[42] An elective office is a public trust. He who aspires for
elective office should not make a mockery of the electoral process by falsely
representing himself. The importance of a valid certificate of candidacy rests
at the very core of the electoral process.[43] Under Section 78 of the
Omnibus Election Code, false representation of a material fact in the
certificate of candidacy is a ground for the denial or cancellation of the
certificate of candidacy. The material misrepresentation contemplated by
Section 78 refers to qualifications for elective office. A candidate guilty of
misrepresentation may be (1) prevented from running, or (2) if elected, from
serving, or (3) prosecuted for violation of the election laws.[44]
Invoking salus populi est suprema lex, Bautista argues that the peoples
choice expressed in the local elections deserves respect. Bautistas
invocation of the liberal interpretation of election laws is unavailing. As held
in Aquino v. Commission on Elections:[45]
In fine, we are left with no choice but to affirm the COMELECs conclusion
declaring herein petitioner ineligible for the elective position as
Representative of Makati Citys Second District on the basis of respondent
commissions finding that petitioner lacks the one year residence in the
district mandated by the 1987 Constitution. A democratic government is
necessarily a government of laws. In a republican government those laws
are themselves ordained by the people. Through their representatives, they
dictate the qualifications necessary for service in government positions. And
as petitioner clearly lacks one of the essential qualifications for running for
membership in the House of Representatives, not even the will of a majority
or plurality of the voters of the Second District of Makati City would substitute
for a requirement mandated by the fundamental law itself.
Indeed, the electorate cannot amend or waive the qualifications prescribed
by law for elective office. The will of the people as expressed through the
ballot cannot cure the vice of ineligibility.[46] The fact that Bautista, a non-
55
registered voter, was elected to the office of Punong Barangay does not
erase the fact that he lacks one of the qualifications for Punong Barangay.
Whether it was proper to proclaim Alcoreza as Punong
Barangay in view of ineligibility of the winning candidate
Bautista subscribes to the view of the Solicitor General that under the law
and jurisprudence, the COMELEC cannot proclaim as winner the second
placer in case of ineligibility of the winning candidate.
The Solicitor General submits that the disqualification of the winning
candidate Bautista does not result in the proclamation of Alcoreza who
obtained the second highest number of votes because Alcoreza was
obviously not the choice of the electorate. The Solicitor General emphasized
that the COMELEC declared Bautista ineligible for the post of Punong
Barangay only after his election and proclamation as the winning candidate.
Respondent Alcoreza, however, alleges that her proclamation as the elected
Punong Barangay was legal and valid. Alcoreza claims her case falls under
the exception to the rule that the disqualification of the winning candidate
does not entitle the candidate with the next higher number of votes to be
proclaimed winner. Alcoreza cites Grego v. COMELEC[47] which held that
the exception is predicated on the concurrence of two assumptions, namely:
(1) the one who obtained the highest number of votes is disqualified; and (2)
the electorate is fully aware in fact and in law of a candidates disqualification
so as to bring such awareness within the realm of notoriety but would
nonetheless cast their votes in favor of the ineligible candidate.
This Court agrees with the view of the Solicitor General. It is now settled
doctrine that the COMELEC cannot proclaim as winner the candidate who
obtains the second highest number of votes in case the winning candidate is
ineligible or disqualified.[48] The exception to this well-settled rule was
mentioned in Labo, Jr. v. Commission on Elections[49] and reiterated in
Grego v. COMELEC.[50] However, the facts warranting the exception to the
rule do not obtain in the present case.
Although the COMELEC Law Department recommended to deny due course
or to cancel the certificate of candidacy of Bautista on 11 July 2002, the
COMELEC en banc failed to act on it before the 15 July 2002 barangay
elections. It was only on 23 July 2002 that the COMELEC en banc issued
Resolution No. 5404, adopting the recommendation of the COMELEC Law
Department and directing the Election Officer to delete Bautistas name from
the official list of candidates.
Thus, when the electorate voted for Bautista as Punong Barangay on 15 July
2002, it was under the belief that he was qualified. There is no presumption
that the electorate agreed to the invalidation of their votes as stray votes in
case of Bautistas disqualification.[51] The Court cannot adhere to the theory
of respondent Alcoreza that the votes cast in favor of Bautista are stray
votes.[52] A subsequent finding by the COMELEC en banc that Bautista is
ineligible cannot retroact to the date of elections so as to invalidate the votes
cast for him.[53] As held in Domino v. COMELEC:[54]
Contrary to the claim of INTERVENOR, petitioner was not notoriously known
by the public as an ineligible candidate. Although the resolution declaring
him ineligible as candidate was rendered before the election, however, the
same is not yet final and executory. In fact, it was no less than the
COMELEC in its Supplemental Omnibus Resolution No. 3046 that allowed
DOMINO to be voted for the office and ordered that the votes cast for him be
counted as the Resolution declaring him ineligible has not yet attained
finality. Thus the votes cast for DOMINO are presumed to have been cast in
the sincere belief that he was a qualified candidate, without any intention to
misapply their franchise. Thus, said votes can not be treated as stray, void,
or meaningless.
The Local Government Code provides for the rule regarding permanent
vacancy in the Office of the Punong Barangay, thus:
SEC. 44. Permanent vacancies in the Offices of the Governor, Vice-
Governor, Mayor, and Vice-Mayor. If a permanent vacancy occurs in the
office of the governor or mayor, the vice-governor or vice-mayor concerned
shall become the governor or mayor. If a permanent vacancy occurs in the
offices of the governor, vice-governor, mayor, or vice-mayor, the highest
ranking sanggunian member or, in the case of his permanent inability, the
second highest ranking sanggunian member, shall become the governor,
vice-governor, mayor or vice-mayor, as the case may be. Subsequent
vacancies in the said office shall be filled automatically by the other
sanggunian members according to their ranking as defined herein.
(b) If a permanent vacancy occurs in the office of the punong barangay
member, the highest ranking sangguniang barangay member, or in the case
of his permanent disability, the second highest ranking sanggunian member,
shall become the punong barangay.
(c) A tie between or among the highest ranking sanggunian members shall
be resolved by the drawing of lots.
(d) The successors as defined herein shall serve only the unexpired terms of
their predecessors.
56
 merely pertain to the administrative functions of the COMELEC. Cancellation
For purposes of this Chapter, a permanent vacancy arises when an elective proceedings involve the COMELEC's quasi-judicial functions.
local official fills a higher vacant office, refuses to assume office, fails to
qualify, dies, is removed from office, voluntarily resigns, or is otherwise
permanently incapacitated to discharge the functions of his office.

For purposes of succession as provided in this Chapter, ranking in the

sanggunian shall be determined on the basis of the proportion of votes
obtained by each winning candidate to the total number of registered voters
in each district in the immediately preceding local election. (Emphasis
supplied)

Since Bautista failed to qualify for the position of Punong Barangay, the
highest ranking sangguniang barangay member, or in the case of his
permanent disability, the second highest ranking sangguniang member, shall
become the Punong Barangay.[55]

WHEREFORE, we DISMISS the petition. Petitioner Raymundo A. Bautista is

ineligible for the position of Punong Barangay of Barangay Lumbangan for
not being a registered voter of Barangay Lumbangan. The proclamation of
the second placer Divina Alcoreza as winner in lieu of Bautista is void.
Instead, the highest ranking sangguniang barangay member of Barangay
Lumbangan shall assume the office of Punong Barangay of Lumbangan for
the unexpired portion of the term.

SO ORDERED.

CASE DIGEST:

BAUTISTA v. COMELEC, G.R. No. 154796-97 (October 23, 2003) EN

BANC

In this case, the Election Officer reported to the COMELEC Law Department
Bautista's ineligibility for being a non-registered voter. The COMELEC Law
Department recommended to the COMELEC En Banc to deny due course or
to cancel Bautista's certificate of candidacy. COMELEC En Banc approved
the recommendation in Resolution No. 5404 dated 23 July 2002. A division
of the COMELEC should have first heard this case. COMELEC En Banc can
only act on the case if there is a motion for reconsideration of the decision of
the COMELEC division. Hence, the COMELEC En Banc acted without
jurisdiction when it ordered the cancellation of Bautista's certificate of
candidacy without first referring the case to a division for summary hearing.
The proceeding on the cancellation of a certificate of candidacy does not

57