Gaminde v. COA

Facts:

- The President of the Philippines appointed Petitioner Thelma P. Gaminde, ad interim in the CSC. She then assumed office after taking an oath of office.- According to her appointment paper as confirmed by the CoAppointment, her term shall expire on Feb. 2, 1999.- Petitioner sought clarification from the Office of the President as to the expiry date of her term of office. In reply to her request, the Chief Presidential Legal Counsel opined that Petitioner’s term of office would expire on Feb. 2, 2000, not on Feb. 2, 1999.- CS Chairman wrote the CoAudit requesting opinion on WON Gaminde and her co-terminous staff may be paid their salaries notwithstanding the expiration of their appointments on Feb 2, 1999.- CoAudit issued an opinion that the term of Gaminde has expired on Feb 2, 1999 as stated in her appointment. Hence, it resulted for CSC to disallow in audit the salaries and emoluments pertaining to petitioner and her co-terminous staff, effective Feb 2, 1999.- Petitioner appealed the disallowance to the CoAudit en banc. However, the Commission dismissed Petitioner’s appeal holding that the issue of Petitioner’s term of office may be properly addressed by mere reference to her appointment paper which set the expiration date on Feb 2, 1999.- Petitioner moved for reconsideration however the CoAudit denied the motion.

ISSUE: WHETHER THE TERM OFFICE SHOULD EXPIRE ON FEB 2, 1999 AS STATED IN THE APPOINTMENT PAPER OR ON FEB 2, 2000 AS CLAIMED BY PETITIONER.

HELD:

The term of office of the Chairman and the members of the CSC is prescribed in the 1987 Constitution.

Sec. 1 (2) The Chairman and the Commissioners shall be appointed by the President with the consent of the CoAppointments for a term of 7 years w/o reappointment. Of those first appointed, the Chairman shall hold shall hold office for 7 years, a Commissioner for five years, and another Commissioner for three years, without reappointment. Appointment to any vacancy shall only be for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.

Furthermore, in Republic v. Imperial, SC ruled that the operation of the rotational plan requires two conditions, both indispensable to its workability:

1. That the terms of the first three Commissioners should start on a common date, and, 2.that any vacancy due to death , resignation, or disability before the term should only be filed only for the unexpired balance of the term.

On the other hand, Art. XVIII, Transitory provisions of the 1987 Constitution provides:

Sec. 15 The incumbent Members of the CSC, COMELEC, and the CoAudit shall continue in office for one year after the ratification of this Constitution, unless they are sooner removed for cause or become incapacitated to discharge the duties of their office or appointed to a new term thereunder. In no case shall any Member serve longer than 7 years including service before the ratification of this Constitution.

Accdng. to her appointment paper, Atty. Gaminde’s appointment shall expire on Feb 2, 2000 was in error. However, she served as de facto officer in good faith until Feb 2, 2000, and thus entitled to receive her salary and other emoluments for actual service rendered. Consequently, the CoAudit erred in disallowing in audit such salary and other emoluments, including that of her co-terminous staff.

Salva v. Makalintal G.R. NO. 132603 (September 18, 2000)

FACTS: The petitioners filed with the RTC a class suit against the Sangguniang Panglalawigan of Batangas, Sangguniang Pambayan of Calaca, Batangas, and the COMELEC for annulment of Ordinance No. 05 and Resolution No. 345 both enacted by the Sangguniang Panglalawigan of Batangas, and COMELEC Resolution No. 2987.

Ordinance No. 05 declared the abolition of Barangay San Rafael and its merger with Barangay Dacanlao, municipality of Calaca, Batangas and accordingly instructed the COMELEC to conduct the required plebiscite. Resolution No. 345 affirmed the effectivity of Ordinance No. 05, thereby overriding the veto exercised by the governor of Batangas. Ordinance No. 05 was vetoed by the governor of Batangas for being ultra vires, particularly, as it was not shown that the essential requirements regarding the attestations or certifications of several government agencies were obtained. The COMELEC promulgated Resolution No. 2987, providing for the rules and regulations governing the conduct of the required plebiscite scheduled on February 28, 1998, to decide the issue of the abolition of barangay San Rafael and its merger with barangay Dacanlao, Calaca, Batangas.

The trial court denied the petition saying that any petition or action questioning an act, resolution or decision of the COMELEC must be brought before the Supreme Court. The petitioners contend that when the COMELEC exercises its quasi-judicial functions under Section 52 of the Omnibus Election Code, its acts are subject to the exclusive review by this Court; but when the COMELEC performs a purely ministerial duty, such act is subject to scrutiny by the Regional Trial Court. Petitioners submit that the conduct of a plebiscite, pursuant to Ordinance No. 05 and Resolution No. 345, is not adjudicatory or

quasi-judicial in nature but simply ministerial or administrative in nature and only in obedience to the aforesaid Ordinance and Resolution.

ISSUE: WHETHER THE RESPONDENT COURT HAS JURISDICTION TO ENJOIN THE COMELEC FROM IMPLEMENTING ITS RESOLUTION NO. 2987, SERIES OF 1998, WHICH PROVIDED FOR THE RULES AND REGULATIONS FOR THE CONDUCT OF THE PLEBISCITE

HELD:

The SC ruled that “…What is contemplated by the term final orders, rulings and decisions of the COMELEC reviewable by certiorari by the Supreme Court as provided by law are those rendered in actions or proceedings before the COMELEC and taken cognizance of by the said body in the exercise of its adjudicatory or quasi-judicial powers.

Briefly, COMELEC Resolution No. 2987 which provides for the rules and regulations governing the conduct of the required plebiscite, was not issued pursuant to the COMELECs quasi-judicial functions but merely as an incident of its inherent administrative functions over the conduct of plebiscites, thus, the said resolution may not be deemed as a final order reviewable by certiorari by this Court. Any question pertaining to the validity of said resolution may be well taken in an ordinary civil action before the trial courts.

SANIDAD VS. COMELEC [78 SCRA 333; G.R. No. 90878; 29 Jan 1990]

Facts: This is a petition for certiorari assailing the constitutionalityof Section 19 of Comelec Resolution No. 2167 on the ground that it violates the constitutional guarantees of the freedom of expressionand of the press. On October 23, 1989, Republic Act No. 6766, entitled "AN ACT PROVIDING FOR AN ORGANIC ACT FOR THE CORDILLERAAUTONOMOUS REGION" was enacted into law. Pursuant to said law, the City of Baguio and the Cordilleras which consist of the provinces of Benguet, Mountain Province, Ifugao, Abra and Kalinga-Apayao, all comprising the Cordillera Autonomous Region, shall take part in a plebiscite for the ratification of said Organic Act originally scheduled last December 27, 1989 which was, however, reset to January 30, 1990 by virtue of Comelec Resolution No. 2226 dated December 27, 1989. The Commission on Elections, by virtue of the power vested by the1987 Constitution, the Omnibus Election Code (BP 881), said R.A. 6766 and other pertinent election laws, promulgated Resolution No. 2167, to govern the conduct of the plebiscite on the said Organic Act for the Cordillera Autonomous Region. In a petition dated November 20, 1989, herein petitioner Pablito V. Sanidad, who claims to be a newspaper columnist of the "OVERVIEW" for the BAGUIO MIDLAND COURIER, a weekly newspaper circulated in the City of Baguio and the Cordilleras, assailed the constitutionality of Section 19 of Comelec Resolution No. 2167, which provides:

Section 19. Prohibition on columnists, commentators or announcers. — During the plebiscite campaign period, on the day before and on the plebiscite day, no mass media columnist, commentator, announcer or personality shall use his column or radio or television time to campaign for or against the plebiscite Issue.

It is alleged by petitioner that said provision is void and unconstitutional because it violates the constitutional guarantees of the freedom of expression and of the press enshrined in the Constitution. Unlike a regular news reporter or news correspondent who merely reports the news, petitioner maintains that as a columnist, his column obviously and necessarily contains and reflects his opinions, views and beliefs on any issue or subject about which hewrites. Petitioner likewise maintains that if media practitioners were to express their views, beliefs and opinions on the issue submitted to a plebiscite, it would in fact help in the government drive and desire to disseminate information, and hear, as well as ventilate, all sides of the issue.

Issue: Whether or not Section 19 of Comelec Resolution No. 2167 is unconstitutional.

Held: The Supreme Court ruled that Section 19 of Comelec Resolution No. 2167 is unconstitutional. It is clear from Art. IX-C of the 1987 Constitution that what was granted to the Comelec was the power to supervise and regulate the use and enjoyment of franchises, permits or other grants issued for the operation of transportation or other public utilities, media of communication or information to the end that equal opportunity, time and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates are ensured. The evil sought to be prevented by this provision is the possibility that a franchise holder may favor or give any undue advantage to a candidate in terms of advertising space or radio or television time. This is also the reason why a "columnist, commentator, announcer or personality, who is a candidate for any elective office is required to take a leave of absence from his work during the campaign period (2nd par. Section 11(b) R.A. 6646). It cannot be gainsaid that a columnist or commentator who is also a candidate would be more exposed to the voters to the prejudice of other candidates unless required to take a leave of absence.

However, neither Article IX-C of the Constitution nor Section 11 (b), 2nd par. of R.A. 6646 can be construed to mean that the Comelec has also been granted the right to supervise and regulate the exercise by media practitioners themselves of their right to expression during plebiscite periods. Media practitioners exercising their freedom of expression during plebiscite periods are neither the franchise holders nor the candidates.

In fact, there are no candidates involved in a plebiscite. Therefore, Section 19 of Comelec Resolution No. 2167 has no statutory basis.

Plebiscite Issue are matters of public concern and importance. The people's right to be informed and to be able to freely and intelligently make a decision would be better served by access to an unabridged discussion of the Issue, including the forum. The people affected by the Issue presented in a plebiscite should not be unduly burdened by restrictions on the forum where the right to expression may be exercised. Comelec spaces and Comelec radio time may provide a forum for expression but they do not guarantee full dissemination of information to the public concerned because they are limited to either specific portions in newspapers or to specific radio or television times.

The instant petition is GRANTED. Section 19 of Comelec Resolution No. 2167 is declared null and void and unconstitutional.

FILIPINAS ENGINEERING & MACHINE SHOPVS. FERRER

Facts: The Commissioners of the COMELEC issued an INVITATION TO BID CALL NO.127 calling for the submissions of sealed proposals for the manufacture and delivery of 11,000 units of voting booths with the specification and description thereon in preparation for the national election. The petitioner and private respondent Acme Steel Manufacturing Company were among those who responded to the invitation Acme’s bid was rejected by the COMLELEC for failures of the formers sample to pan the latter’s standard. Instead, the Bidding Committee of the COMELEC recommended the award in favor of Filipinas Engineering & Machine Shop subject to ocular inspection by all the members of the committee. After the ocular Inspection, The Commissioners NOTED that Acme submitted the lowest bid, hence, they issued a resolution awarding the contract to Acme. Filipinas filed an Injunction suit with a prayer for a writ of Preliminary injunction with the CFI of Manila. The Prayer for Preliminary Injunction was denied and the injunction case was dismissed for lack of jurisdiction over the nature of the suit and the complaint states no cause of action. A motion for Reconsideration was filed but the same was likewise denied.

Issue: 1. Won the Lower count has jurisdiction to take cognizance of s suit involving an order of the COMELEC dealing with an award of contract from its invitation to bid; and2. WON Filipinas has a cause of action against Acme and COMELEC.

Ruling: 1. YES, the lower court has jurisdiction to take cognizance of the suit involving the award of contract of COMELEC because the latter resolution in favor of Acme was not issued pursuant to its quani-judicial functions but merely as an accident of its whereat administrative function over the conduct of elections.2. NO, Filipinas has no cause of action against the COMELEC and Acme to enjoin them from complying with their contract. Pursuant to COMELE’S invitation to bid No.127, a bidder may have the right to demand damages, for unrealized or expected profits only when his bid was accepted by resolution of the COMELEC. Filipinas bid, No resolution to that effect appeared to have been issued by the COMELEC. Ergo Filipinas has no cause of action.

Section 2. The Commission on Elections shall exercise the following powers and functions:

1. Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.

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.

3. Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters.

4. Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections.

5. Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other requirements, must present their platform or program of government; and accredit citizens' arms of the

Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported by any foreign government shall likewise be refused registration.

Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections, constitute interference in national affairs, and, when accepted, shall be an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law.

6. File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices.

7. Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies.

8. Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to, its directive, order, or decision.

9. Submit to the President and the Congress, a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall.

Gallardo vs. Tabamo, Jr. January 29, 1993 218 SCRA 253ANTONIO GALLARDO, ANTONIO AREVALO, CRESENCIO ECHAVEZ, EMMANUEL ARANAS, PALERMO SIA, RONNIE RAMBUYAN,PRIMO NAVARRO and NOEL NAVARRO, petitioners, vs. HON. SINFOROSO V. TABAMO, JR., in his capacity as Presiding Judgeof Branch 28 of the Regional Trial Court of Mambajao, Camiguin, and PEDRO P. ROMUALDO, respondents.

This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court. Petitioners seek to prohibit, restrain and enjoin Judge Tabamo from continuing with the proceedings in a petition for injunction, prohibition and mandamus with a prayer for a writ of preliminary injunction and restraining order filed as a taxpayers suit. At the time of filing both the special civil action and the instant petition, petitioner Antonio Gallardo was the incumbent Governor of the Province of Camiguin and was seeking re-election in the May 11, 1992 synchronized elections. PetitionersArevalo, Echavez, Aranas, and Sia are the provincial treasurer, provincial auditor, provincial engineer, and provincial budget officer of Camiguin. Their co-petitioners Rambuyon, Primo and Noel Navarro are all government project laborers. On the other hand, the private respondent was the incumbent Congressman of the lone Congressional district of Camiguin, a candidate for the same office in the said synchronized elections and the Regional Chairman of the Laban ng Demokratikong Pilipino (LDP) in Region X.

FACTS:On April 10, 1992, private respondent filed his Petition (Special Civil Action No. 465) before the court a quo against petitioners to prohibit and restrain them from pursuing or prosecuting certain public works projects as it violates the 45-dayban on public works imposed by the Omnibus Election Code (Batas Pambansa Blg. 881) because although they were initiated few days before March 27, 1992, the date the ban took effect, they were not covered by detailed engineering plans, specifications or a program of work which are preconditions for the commencement of any public works project. The questioned projects are classified into two (2) categories: (a) those that areLocally-Funded, consisting of 29 different projects for the maintenance or concreting of various roads, the rehabilitation of the Katibawasan Falls and the construction of the Capitol Building, and (b) those designated as Foreign-Assisted, consisting of fifteen (15) projects which include the construction of Human Development Center, various Day Care cum Production Centers and water works systems; the extension and renovation of various buildings; the acquisition of hospital and laboratory equipment; and the rehabilitation of office and equipment. On the same day, respondent Judge issued the question TRO. In the same order, he directed the petitioners to file their Answer within 10 days from receipt of notice and set the hearing on the application for the issuance of the writ of preliminary injunction for April 24, 1992. Instead of filing the Answer, the petitioners filed the special civil action for certiorari and prohibition, with a prayer for a writ of preliminary injunction and/or temporary restraining order. They contend that the case principally involves an alleged violation of the Omnibus Election Code thus the jurisdiction Is exclusively vested in the Comelec, not the Regional Trial Court.

ISSUE: Whether or not the trial court has jurisdiction over the subject matter of Special Civil Action No. 465.RULING:The material operative facts alleged in the petition therein inexorably link the private respondent's principal grievance toalleged violations of paragraphs (a), (b), (v) and (w), Section 261 of the Omnibus Election Code (Batas Pambansa Blg. 881).There is particular emphasis on the last two (2) paragraphs which read:Sec. 261.Prohibited Acts . ² The following shall be guilty of an election offense:.ASAN “SONNY“ CAMLIAN VS. COMELEC and LEONARDO POQUINTO

FACTS:

- CAMLIAN and POQUINTO were both candidates for mayor at Isabela, Basilan during May 1995 elections

- After canvassing Poquinto have higher votes compared to Camlian resulting to his proclamation as winner and in effect he assumed office and discharged his duties and responsibilities

- CAMLIAN then filed for Electoral Protest at RTC Basilan - Jan 1996 RTC ruled in favor of CAMLIAN and declared him as a winner of the

1995 election- RTC also granted petitioners motion for execution pending appeal - The issue was raised to COMELEC and in turn COMELEC issued TRO directing

Judge Memoracion to cease and desist from implementing RTCs order hence this case.

ISSUE: WON COMELEC committed grave abuse of discretion for issuing TRO

HELD:

Not every invocation of public interest with particular reference to the will of the electorate can be appreciated as a good reason especially so if the same appears to be self-serving and has not been clearly established. Public interest will be best served when the candidate voted for the position is finally proclaimed and adjudged winner in the elections. Urgency and expediency can never be substitutes for truth and credibility. The appeal interposed by private respondent to the COMELEC does not seem to be merely dilatory as it aims to resolve decisively the question as to who is the true winner in the last elections. Moreover, apart from petitioner's sweeping and self-serving allegation that the appeal is dilatory, no supporting argument or explanation whatsoever is offered why he considers it so. The omission militates against the pretended urgency of the motion for execution pending appeal. We are sure that both petitioner and private respondent would want to see the light at the end of the tunnel. Finally, the issue of "illegally manufactured votes" is best ventilated, and must accordingly be threshed out, in the election case before the COMELEC.

WHEREFORE, the instant petitio is hereby DENIED

---

ABDULMADID P.B. MARUHOM, petitioner, vs. COMMISSION ON ELECTIONS and HADJI JAMIL DIMAPORO, respondents.

Petitioner Abdulmadid P.B. Maruhom and private respondent Hadji Jamil Dimaporo were both candidates for Mayor in the Municipality of Marogong, Lanao del Sur in the May 11, 1998, national and local elections. Private respondent alleged that during the counting of votes, serious irregularities, anomalies and electoral frauds were committed at the instance of petitioner or his followers. As a result, the petitioner was illegally proclaimed as winner because he appeared to obtain 2,020 votes while private respondent garnered 2,000 votes. On May 25, 1998, private respondent filed an ordinary "Protest ad Cautelam" against the petitioner before the Regional Trial Court, Branch 11, Malabang, Lanao del Sur docketed as Election Case No. 11-127. On June 1, 1998, the petitioner filed an answer with counter protest. The case was then set for hearing and a Revision Committee was created. The trial court directed the members of the committee to finish the revision within 20 days from its commencement. The petitioner then orally moved for the dismissal of the protest. After the oral arguments of both parties, the petitioner's counsel was given by the acting presiding judge ten days to file an Omnibus Motion in substantiation of all the oral motions he made and the private respondent was likewise given an equal period of time to file his comment. On September 11, 1998, petitioner's filed his motion to dismiss, and on September 21, 1988, the private respondent filed a vigorous opposition thereto. Subsequently, the presiding judge issued an order denying the petitioner's motion to dismiss for lack of merit. He likewise denied the motion for reconsideration in relation thereto. To further delay the proceedings of the case, petitioner filed before the COMELEC a petition for certiorari and prohibition with prayer for preliminary injunction. On December 11, 1998, the petitioner filed an urgent motion before the trial court to defer further proceedings of the case until after the petition before the COMELEC shall have been finally resolved. The trial court granted the urgent motion before the private respondent could file his opposition thereto. Subsequently, the COMELEC dismissed the petition. Hence, the instant petition.

HELD:

The Court ruled that laws and statutes governing election contests especially the appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities. HDAaIc

It is clear, given the foregoing facts of this case, that the roundabout manner within which petitioner virtually substituted his answer by belatedly filing a motion to dismiss

three (3) months later was a frivolous resort to procedure calculated to frustrate the will of the electorate. As pointedly observed by the COMELEC in its challenged Resolution dated July 6, 1999, petitioner only filed his motion to dismiss "when the results of the trial appear[ed] to be adverse to him" or "right after the creation of the Revision Committee had been ordered by the trial court. If petitioner truly intended to move for the preliminary hearing of his special and affirmative defenses as he claims, then he should have simultaneously moved for the preliminary hearing of his special and affirmative defenses at the time he filed his answer. Otherwise, he should have filed his motion to dismiss within the time for but before filing the answer . . ." pursuant to Section 1, Rule 16 of the 1997 Rules of Civil Procedure. Suffice it to state that such a whimsical change of mind by petitioner cannot be countenanced much more so in election cases where time is of the essence in the resolution thereof.v

A.M. No. RTJ-92-881 June 2, 1994ANTONIO A. GALLARDO, ANTONIO AREVALO, CRESENCIO ECHAVEZ, EMMANUEL ARANAS, PALERMO SIA, RONNIE RAMBUYON, PRIMO NAVARRO and NOEL NAVARRO, petitioners, vs.JUDGE SINFOROSO V. TABAMO, JR. respondent.Hermosisima, Sision & Inso for petitioners.

R E S O L U T I O N KAPUNAN, J.:For this Court's consideration is a letter-complaint, dated May 5, 1992 of Governor Antonio A. Gallardo of the Province of Camiguin and other officials of the said province, charging Judge Sinforoso V. Tabamo, Jr. of the Regional Trial Court, Branch 28, at Mambajao, Camiguin with manifest bias and partiality and highly irregular and outrightly illegal acts in connection with two cases filed before his court, namely:A. Special Civil Case No. 465 entitled "Pedro P. Romualdo vs. Governor Antonio A. Gallardo, et al." for Injunction, Prohibition, and Mandamus with Prayer for the Issuance of a Writ of Preliminary Injunction and Restraining Order; andB. Criminal Case No. 561 entitled "People vs. Ruel D. Dagondon, et al." for Illegal Possession of Indian Hemp (marijuana).In Special Civil Action No. 465, respondent judge issued an Order restraining the continuance of various public works projects being undertaken by the provincial government and the disbursement of funds therefor, allegedly in violation of a 45-day ban on public works imposed by the Omnibus Election Code. Complainant alleged that respondent Judge, in spite of the fact that it was the Commission on Elections, not the Regional Trial Court, which had jurisdiction over the case, took cognizance of the same and issued the temporary restraining order.In Criminal Case No. 561, respondent Judge is accused to have imposed the wrong sentence in violation of specific provisions of the Dangerous Drugs Law, the Indeterminate Sentence Law and the Revised Penal Code in order to afford the accused in said case the right to avail of provisions of the Probation Law.Respondent Judge's actuations, according to complainant, were intended to favor the political faction of Congressman Pedro P. Romualdo in the struggle with the group of Governor Gallardo for political supremacy in the 1992 elections. This Court, in a resolution dated March 18, 1993, referred the administrative matter to Justice Salome A. Montoya of the Court of Appeals for investigation, report and recommendation. Complying with said resolution, Justice Montoya, in her final report, found the evidence as follows:A. Re: SPECIAL CIVIL ACTION NO. 465:It appears that Cong. Pedro P. Romualdo and Gov. Antonio R. Gallardo were both candidates in the May 11, 1992 elections for the positions of congressmen and governor, respectively, of Camiguin. They belonged to opposing political factions and were in a bitter electoral battle.On April 10, 1992 or about a month before the elections, Cong. Romualdo filed a petition docketed as Special Civil Action No. 465 before the Regional Trial Court of Camiguin (Br. 28) presided over by respondent Judge Tabamo against Gov. Gallardo, the Provincial Treasurer, the Provincial Auditor, the Provincial Engineer, and the Provincial Budget Officer as respondents. In this petition Cong. Romualdo sought to prohibit and restrain the respondents from undertaking and/or pursuing certain public works projects and from disbursing, releasing, and/or spending public funds for said projects, allegedly because, among other reasons, said projects were undertaken in violation of the 45-day ban on public works imposed by the Omnibus Election Code (B.P. Blg. 881); that the public works projects were commenced without the approved detailed engineering plans and specification and corresponding program of works; that the expenditures of the 20% development fund for projects other than for maintenance violated the Local Government Code; that locally funded projects had been pursued without the provincial budget having been first approved, and reviewed by the Department of Budget and Management; and that the illegal prosecution of the said public works projects requiring massive outlay or public funds during the election period was done maliciously and intentionally to corrupt voters and induce them to support the candidacy of Gov. Gallardo and his ticket in the May 11, 1992 elections.In the afternoon of the same day that the petition was filed, Judge Tabamo issued a temporary restraining order as prayed for by the petitioner Cong. Romualdo, as follows:It appearing from the verified petition in this case that great and irreparable damage and/or injury shall be caused to the petitioner as candidate and taxpayer, such damage or injury taking the form and shape occasioned by the alleged wanton, excessive, abusive and flagrant waste of public money, before the matter can be heard on notice, the respondents are hereby Temporarily Restrained from pursuing or prosecuting the project itemized in Annexes "A" and "A-1" of the petition; from releasing, disbursing and/or

spending any public funds for such projects; from issuing, using or availing of treasury warrants or any device undertaking future delivery of money, goods, or other things of value chargeable against public funds in connection with the said projects.In the same Order of April 10, 1993 the judge gave the respondents ten (10) days from receipt of a copy of the petition to answer the same, and set the prayer for the issuance of a preliminary injunction for hearing on April 24, 1992 at 8:30 A.M.Gov. Gallardo testified that when he received a copy of the restraining order and reviewed the petition filed, being a lawyer, he at once saw that the same was not within the jurisdiction of the Regional Trial Court. He said that the elections were nearing and all their projects were suspended, the laborers could not get their salaries, and the judge had set the hearing of the injunction on April 24, 1992 or very close to the elections of May 11, 1992. Believing that he could not get justice from the respondent court, he decided to go to the Supreme Court where he filed a petition for certiorari (docketed as G.R. No. L-104848) questioning the issuance of the temporary restraining order and the jurisdiction of the court over Special Civil Action No. 465.

xxx xxx xxxOn April 13, 1992 a rally or demonstration was held in front of the premises of the Regional Trial Court of Camiguin. People, composed mostly of the unpaid laborers, carried placards which protested the restraining order and urged Judge Tabamo to order the release of their salaries. Most of the placards expressed contempt and ridicule for the judge and referred to him as the "tuta" of Cong. Romualdo and to the RTC as the "Romualdo-Tabamo-Court" and "Romualdo Tabamo-Corruption".Respondent Judge Tabamo testified in this regard that the rallyists were laborers affected by the restraining order. They were taken from all over the island of Camiguin and loaded in several cargo trucks chartered by the followers of Gov. Gallardo. Judge Tabamo saw some of his relatives among the rallyists and when he asked them why they were there, he was told that the laborers were gathered on the representation that they would collect their salaries in Mambajao, they were told that they could not receive their salaries because of the restraining order issued by Judge Tabamo, and the laborers did not feel good about it.

xxx xxx xxxIn the afternoon of April 23, 1992 Judge Tabamo received a telegram from the Supreme Court in connection with G.R. No. L-104848, the petition for certiorari filed by Gov. Gallardo reading as follows:SUPREME COURT IN AN ORDER DATED APRIL 20 IN G.R. NUMBER 104848 ENTITLED ANTONIO GALLARDO ET AL. VERSUS HONORABLE SINFOROSO TABAMO JR. ET AL. REQUEST RESPONDENTS TO COMMENT ON PETITION WITHIN TEN DAYS FROM NOTICE AS WELL AS ISSUED TEMPORARY RESTRAINING ORDER EFFECTIVE IMMEDIATELY AND CONTINUING UNTIL FURTHER ORDERS FROM COURT ORDERING RESPONDENTS JUDGE TO CEASE AND DESIST FROM IMPLEMENTING AND ENFORCING YOUR QUESTIONED ORDER DATED APRIL 10, 1992 AND FROM CONTINUING WITH THE PROCEEDINGS IN SPECIAL ACTION NUMBER 465 ENTITLED PEDRO ROMUALDO VERSUS GOVERNOR ANTONIO GALLARDO ET AL. STOP FORMAL ORDERS FOLLOWS END. SUPREME COURT ASSISTANT CLERK LUZVIMINDA PUNO.After receiving this telegram Judge Tabamo issued an Order on the same day of April 23, 1992 canceling the hearing of the application for a writ of preliminary injunction which had been previously set for April 24, 1992. He also said that he decided not to go to court on April 24, 1992 in order to avoid being caught in the crossfire between the two great political leaders in his province.It appears that on April 24, 1992 people came to the premises of the court for the hearing of the application for injunction in SP No. 465. They were composed of followers of both Gov. Gallardo and Cong. Romualdo. Gov. Gallardo said he went there to inform the judge about the temporary restraining order issued by the Supreme Court, thinking that the same had not been communicated to the judge. Cong. Romualdo was then likewise present. The Clerk of Court of Judge Tabamo announced that the case would not be heard any more as the Supreme Court had issued an order for Judge Tabamo not to hear the case. After this announcement, Cong. Romualdo announced to the people that he had already ordered Gov. Gallardo to give the salaries of the laborers and when the latter heard the announcement, he told the people that it was not Cong. Romualdo responsible for the release of the salaries.Thereafter, there were passionate exchanges of words between the two factions and a rumble occurred among the followers of Cong. Romualdo and Gov. Gallardo, where many were hurt and during which Gov. Gallardo claims his life was placed in danger.Aristeo Marbella, Jr., who testified in this case for the complainants, said that he was then with Gov. Gallardo and he was choked by Jayjay Romualdo, the eldest son of the congressman; that another son of Romualdo tried to hit him and still another son, Gogo Romualdo, also choked him; that thereafter, Jayjay and Gogo attacked Rollie Gallardo, brother of Gov. Gallardo, and when he (Marbella) turned around, Cong. Romualdo himself choked him and wrestled with him; that he pleaded with the congressman who was his godfather but the latter continued to pull and wrestle with him and then the brother of the congressman pulled his hair and George Romualdo, a son of the congressman, hit him at the back, and he fell down. Marbella said that Gov. Gallardo tried to help him and Rollie Gallardo but was held down by his bodyguards.Thereafter, Marbella went to the police and reported the matter, as shown in the police blotter of the Mambajao Police Station. He said that he decided not to file a case knowing that the same would fall in the sala of Judge Tabamo and it would be useless as Judge Tabamo is the "tuta" or tool of Cong. Romualdo.Another witness for the complainants on rebuttal was Camilo Abanil, who testified that on April 23, 1992 he was with Edmundo Damisa and Ruben Cloma in a Ford Fiera going around the province of Camiguin on request of Gov. Gallardo who asked them to announce to the laborers that they could already collect their salaries from the province; that when they reached the town of Sagay, they were stopped by Mayor Talian and Vice Mayor Mabolo who was angry and said that they were poisoning the minds of the

people; that the younger brother of Vice Mayor Mabolo pulled down Damisa from the Ford Fiera where they were riding; that he (witness) went down to pacify the person who pulled Damisa but he was the one mauled; and that he pleaded to the men and to the Mayor, asking the latter to forgive him as they had not committed any fault but only followed Gov. Gallardo.Abanil said that he too reported the matter to the police station where the incident was placed in the blotter, and that he later had himself examined by a doctor who gave him a medical certificate. Thereafter, he filed a case for slight physical injuries against Tata Mabolo (Crim. Case No. 3488).Abanil also testified on the incident of April 24, 1992 when he went to the court premises to witness the hearing because he was among those not paid his salary. He said he saw Junar Marbella being mauled by the group of Cong Romualdo and Rollie Gallardo being chased by the same group; that he saw Gov. Gallardo trying to help his brother and Jun Marbella and when he (witness) tried to go near Gov. Gallardo, he was also chased by the group of Cong. Romualdo who caught him at the steps of the Capitol Building where Cong. Romualdo boxed him, and Dandan Romualdo kicked him, Gogo Romualdo boxed him, and Dandan Romualdo wrestled with him; that he fell to the ground and the group of Cong. Romualdo took turns kicking him; that he has a medical certificate to show the injuries he sustained; and that he at first thought of filing a case but decided not to, believing that the case will fall in the sala of Judge Tabamo who is the ‘tuta' or tool of Cong. Romualdo. He further claimed that the reputation of Judge Tabamo in Camiguin is no longer good and that his court is termed RTC or Romualdo-Tabamo-Court.Edmundo Damisa, corroborated the testimony of Camilo Abanil on the incident of April 23, 1992 when they went around the province to announce that the laborers can get their salaries already, adding that Mayor Talian told them to leave the municipality of Sagay, otherwise they would be killed. He also testified that on April 24, 1992 he was outside the Capitol Building when he noticed a big commotion in front of the RTC which was about 30 to 40 meters away; that he saw Rollie Gallardo being chased by the men of Cong. Romualdo and saw Junar Marbella being chased and then choked and boxed by the group of the congressman; that he also saw Gov. Gallardo being held tightly by his security men as he wanted to free himself and help Marbella and Rollie Gallardo; that he also saw the group run after and maul Camilo Abanil; that he himself was chased by Cong. Romualdo who was holding a small gun so he ran up the stairs of the Capitol; and that he helped Gov. Gallardo get inside the Capitol because the commotion was already very tense.Damisan said he had known Judge Tabamo since childhood days; that the judge is not popular and is nicknamed RTC or Romualdo-Tabamo-Court even in the billiard halls and cockpit; and that Judge Tabamo is often seen in the cockpit because he participates in derbies. He denied that Judge Tabamo had told him to look for a lawyer instead of making demands in the streets on April 24, 1992 and said that what Judge Tabamo told him was that it was not easy for him to lift the restraining order because he has children and it is Cong. Romualdo, who is the godfather of one of his children, who can help them; and that Judge Tabamo also said that he knew very well on whose side Damisa was and the latter also knew on whose side he (Judge Tabamo) was.On January 29, 1993 the Supreme Court rendered its Decision in G.R. No. L-104848, the petition for certiorari filed by Gov. Antonio Gallardo, et al. against the respondent Judge Sinforoso V. Tabamo, Jr. and Cong. Pedro P. Romualdo, granting the same. The Supreme Court ruled that the respondent court had no jurisdiction over Special Civil Action No. 465 and ordered its dismissal. The challenged temporary restraining order of April 10, 1992 was set aside.B. RE: CRIMINAL CASE NO. 561:One Ruel Dagondon was charged of Illegal Possession of Indian Hemp (Marijuana) in Criminal Case No. 561 filed before the Regional Trial Court of Camiguin (Branch 28).In a judgment dated July 18, 1991 the respondent Judge Sinforoso V. Tabamo, Jr. found the accused guilty as charged and sentenced him to an imprisonment for the indeterminate period of from 2 years, 4 months and 1 day of prision correccional in its medium period to 8 years and 1 day of prision mayorin its medium period, and to pay a fine of P6,000.00.After this judgment was promulgated on July 31, 1991, the accused Dagondon filed a Notice of Appeal on the same day. On August 7, 1991, however, the accused withdrew his Notice of Appeal and instead filed a Motion for Reconsideration of the Judgment on August 9, 1991, praying that the penalty imposed upon him be reconsidered and that the following circumstances be considered as mitigating in his favor: (1) that the accused did not intend to commit so grave a wrong, (2) extreme poverty of the accused, (3) lack of proper education, and (4) voluntary surrender. The respondent Judge asked Public Prosecutor Julio A. Vivares to comment on the motion. The latter filed a Comment dated August 19, 1991 stating that the bases for the motion for reconsideration are matters that should have been established during the trial for the appreciation of the court and that even if these circumstances were directly or indirectly touched during the presentation of the defense of the accused, their acceptability or credibility is left to the sound discretion of the judge.On August 26, 1991 respondent Judge issued an Order modifying the Judgment dated July 18, 1991, by amending the penalty imposed on the accused Dagondon to a minimum of 2 years, 4 months and 1 day of prision correccional on its medium period to 6 years of prision correccional in its maximum period, "in view of the mitigating circumstances of extreme poverty and voluntary surrender."This modified judgment was promulgated in open court on August 30, 1991 in the presence of the accused Dagondon and his counsel.Subsequently, the accused Dagondon applied for probation, which the respondent judge granted in an Order dated November 13, 1991.Complainants charge that Judge Tabamo modified the penalty so that Dagondon can apply for probation, upon orders of Cong. Pedro P. Romualdo who was approached by a close relative of Dagondon.

In support of this allegation, the complainants presented only the bare testimony of Ceferino E. Chan, Jr., a former process server in the court of the respondent judge. Chan testified in this regard that he was employed as process server in Branch 28 from January, 1978 to April 1992 when he took a leave of absence; that he is familiar with Criminal Case No. 561 because sometime in August, 1991 he served a copy of an Order modifying the judgment to the mother of Ruel Dagondon as the latter was then not in the house; and that he told Dagondon's mother that it was good that the decision was changed and the latter answered that they had gone to Cong. Romualdo to ask for help.Chan further testified that he resigned from his position as process server sometime in July, 1992 because the people in Camiguin no longer respect the court and even make fun of it, like saying that the RTC means Romualdo-Tabamo-Court; that people would also say that it one wants to win a case in the sala of Judge Tabamo, he should first kiss the hand of Cong. Romualdo; and that people used to ask where else they could go since the court is already controlled by Cong. Romualdo. He stated that Cong. Romualdo often goes to the chambers of Judge Tabamo sometimes only in shorts and T-shirts.The respondent judge presented Alfreda Daiz, OIC Clerk of Court of Branch 28 of the RTC of Camiguin. She testified that although Chan did not tell her the real reason for his resignation from the court, there was a time that Chan told them that his mother wanted him to administer their vast idle lands because even they, the owners, did not know the location and boundaries of their lands; and that Chan also had the plan to put up a business, particularly that of selling motor parts, because he noticed the motorcycle drivers travel as far as Cagayan de Oro just to buy parts for their motorcycles.Judge Tabamo denied that he had sent Chan to serve a copy of the modified decision to the residence of Dagondon. He stated that the modified decision was promulgated in open court on August 30, 1991, during which the accused was present with his counsel, hence there was no need to serve a copy of the decision in his house. The judge maintained that in all his 23 years in the judiciary it was never his practice to serve copies of decisions in criminal cases to parties because they are promulgated in open court and that his practice was to furnish their counsels after the decision is read and that in the Dagondon case the lawyer was furnished a copy of the modified judgment in open court. He added that if Chan had served a copy of the decision before it was promulgated, then Chan had leaked it out and should have been made to answer for the act had he known earlier about it.At any rate, Judge Tabamo points out that Chan has not presented any proof to show that he served a copy of the decision to Dagondon's mother and the records of the case indeed do not show that the alleged service was made.Judge Tabamo denied that Cong. Romualdo goes often to his chambers in shorts and T-shirts, since the congressman stays most of the time in Manila and goes home only for special occasions. He explained that Cong. Romualdo used to go around the province to inspect his projects and visit his leaders and constituents, in the same manner that Gov. Gallardo, being a lawyer, makes it a point to visit the offices of the Register of Deeds, the fiscals, the courts and other offices and engage the officials in conferences regarding matters of vital concern, like the construction of the Hall of Justice.Judge Tabamo said that he had to maintain a healthy relationship with the officials of the province. Incidentally, the Mayor of Mambajao is the wife of Cong. Romualdo.Judge Tabamo further testified that before Chan resigned on July 1, 1992, the latter went on leave to campaign for his father who ran for mayor of Mambajao; that Chan's father lost in the elections but Chan refused to go back to work; and that he had to send Alfreda Daiz to tell Chan to go back to work or to resign. Judge Tabamo also said that Chan was bitter because a sister of his lost a estafa case in the court and a brother-in-law of Chan also lost his first case before the court.The complainants point out in regard to Criminal Case No. 561 that the court considered the mitigating circumstance of voluntary surrender in favor of Dagondon when the records show that he was arrested in a buy-bust operation; and that the court imposed a maximum of six (6) years and one (1) day provided under B.P. Blg. 179 for the offense committed by Dagondon.FINDINGS —

RE: SPECIAL CIVIL ACTION NO. 465:It may be conceded that on the basis alone of the actuations of respondent Judge in relation to Special Civil Case No. 465, there may be no clear and convincing evidence that respondent Judge had acted with manifest bias and partiality for Cong. Romualdo.The staging of the rally in front of the courthouse on April 13, 1992 cannot be imputed to respondent Judge. Obviously, the rally was orchestrated by the group of Gov. Gallardo who picked up the participants from the different parts of the province. Also, the chaos that took place on April 24, 1992 after this Court set aside the temporary restraining order issued by respondent Judge was occasioned by the attempt of Cong. Romualdo to get the credit for the fact that the laborers would now be paid. This was resented by Gov. Gallardo and his followers, resulting in the clash between the two contending groups. The motive of Gov. Gallardo in initiating the rally is not hard to find. He had sponsored a number of public works projects and hired hundreds of laborers, which fact boosted his chances of political victory. When the projects were stopped and the laborers could not get paid, he had to find a scapegoat, thus, the rally against respondent Judge.However, respondent Judge can hardly justify his acts not only of entertaining Special Civil Case No. 465 and issuing a temporary restraining order stopping the prosecution of the public works projects on the ground that it violated the 45-day ban on public works imposed by the Omnibus Election Code, but also, as will be discussed later, of imposing a wrong penalty in Criminal Case No. 561 and, almost simultaneously, reducing the penalty with the evident purpose of allowing the accused to avail of the benefits of the Probation Law. Being an experienced judge, it is highly inconceivable that he was not aware of Zaldivar vs. Estenzo (23 SCRA 533) where this Court categorically held that considering that the COMELEC is vested by the Constitution with the exclusive charge of the enforcement of all laws relative to the conduct of elections, the assumption of jurisdiction by the trial court over a case involving the enforcement of the Election Code "is at war with the plain constitutional command, the implementing statutory provisions,

and the hospitable scope afforded such grant of authority so clear and unmistakable in recent decisions."

RE: CRIMINAL CASE NO. 561:We agree with respondent Judge that the testimony of Ceferino E. Chan, Jr. hardly deserves any credence. Respondent Judge emphasized without contradiction that he had never served copies of his decisions in criminal cases to the parties; he promulgated his decisions in open court and thereafter furnished copies thereof to counsels. If, indeed, Chan served a copy of respondent Judge's order modifying his decision to the mother of Ruel Dagondon, during which the mother allegedly blurted out her having gone to Cong. Romualdo to ask for his help to reduce her son's penalty, proof of service of the order to the accused's mother should have been presented in evidence. The bare testimony of Chan lacks any corroboration.Neither was Chan's declaration that Cong. Romualdo frequented respondent Judge's chambers buttressed by any independent proof. Respondent Judge admitted though that at times, Cong. Romualdo would make official visits to his court regarding matters like the construction of the Hall of Justice, in the same way that he would also visit other provincial offices.Nonetheless, the facts as established in their totality, more particularly respondent Judge's taking cognizance of Special Civil Case No. 465, despite his lack of jurisdiction, his issuance of a temporary restraining order in said case, his imposition of the penalty in Criminal Case No. 561 which was unconscionably unwarranted given the facts and the law applicable, and his reduction of the penalty by the application of two non-existent mitigating circumstances with the obvious result of enabling the accused to avail of the Probation Law, demonstrate an unmistakable pattern of highly irregular acts constitutive of gross ignorance of the law and grave arbitrariness. Respondent Judge has a long experience as a judge, having been in the judiciary for over 20 years. It is, therefore, difficult for this Court to sustain the contention that what he had done were mere errors of judgment. In fact, no discretion was required in both instances: the applicable legal provisions are crystal clear and need no interpretation.In his July 18, 1991 judgment in Criminal Case No. 561 (People vs. Dagondon, et al.), respondent judge found the accused guilty as charged of Illegal Possession of Indian Hemp (marijuana) and sentenced him to imprisonment for an indeterminate period of from two (2) years, four (4) months and one (1) day of prision correccional in its medium period to eight (8) years and one (1) day of prision mayor in its medium period. Additionally, the accused was ordered to pay a fine of Six Thousand Pesos (P6,000.00).On the same day judgment was promulgated, the accused filed a notice of appeal which he later withdrew in favor of a Motion for Reconsideration of Judgment praying that the circumstances of voluntary surrender, extreme poverty and lack of proper education be considered as mitigating in his favor. On August 26, 1991, respondent judge issued an order amending the penalty imposed to a minimum of two (2) years, four (4) months and one (1) day of prision correccional in its medium period to six (6) years of prision correccional in its maximum period. In modifying the judgment, the alleged mitigating circumstances of extreme poverty and voluntary surrender were taken into consideration by the respondent judge. The reduction of the penalty enabled the accused, Ruel Dagondon to apply for probation which was granted by respondent Judge in an Order dated November 13, 1991.It should be noted that the accused was charged with violation of B.P. Blg. 179 (Dangerous Drugs Act), a special law. Under the Indeterminate Sentence Law, when an offense is punishable by a law other than the Revised Penal Code, the court should sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by law and the minimum shall not be less than the minimum term prescribed by the same. The accused Dagondon should have been sentenced to imprisonment anywhere from six (6) years and one (1) day to twelve (12) years as mandated by B.P. 179. In applying the Indeterminate Sentence Law after finding no mitigating or aggravating circumstances, the minimum penalty originally imposed by respondent Judge should not have been two (2) years, four (4) months and one (1) day but six (6) years and one (1) day. The incorrect minimum penalty was obviously mistakenly arrived at by applying the rule applicable only for crimes punishable under the Revised Penal code, not a special law like B.P. 179. The basic error of respondent Judge stemmed from his unwarranted assumption that the penalty of imprisonment ranging from 6 years and 1 day to 12 years, provided for the offense involved by Sec. 8 of the governing law, is the same as prision mayor despite the fact that the technical terminology of penalties for felonies in the Revised Penal Code were not used in the Dangerous Drugs Act at that time. He should likewise have readily noted that neither were the terms prision correccional orreclusion temporal used therein and, for that matter, life imprisonment and not reclusion perpetua was used in and imposed under that law then in force. The inexorable conclusion, therefore, is that drug offenses were then considered, not as felonies, but as crimes punished under a special law, hence the provisions of Arts. 13, 64, 71 and 76 of the Revised Penal Code could not be given suppletory effect. Consequently, the indeterminate sentence should have been within the range for offenses punished by special laws as provided in Sec. 1 of the Indeterminate Sentence Law.To compound his error, respondent Judge considered in favor of the accused the mitigating circumstances of extreme poverty and voluntary surrender. Justice Montoya noted:Extreme poverty is not among the mitigating circumstances enumerated in Article 13 of the Revised Penal Code and it is doubtful whether it may be considered as a circumstance of a similar nature or analogous to those mentioned in said Article. On the other hand, there appears to be no voluntary surrender on the part of the accused because the decision itself states that the accused was arrested by the authorities in a buy-bust operation and was brought to the police station in Mambajao, and later to the PC-INP Headquarters at Camp Gen. Bonifacio Aranas. In stating that there was voluntary surrender, the respondent postulated in his Order modifying the judgment that the

accused, after committing the crime and having all the chances to escape, voluntarily gave himself up to the authorities.It might, perhaps, have been easy for this Court to act with extreme leniency if the only mistake committed by respondent Judge was the application of Article 64 of the Revised Penal Code to an offense punishable by a special law. However, the pattern of the "errors" committed one after another, which eventually enabled the respondent Judge to apply the provisions of the Probation Law in letting off the accused with a virtual slap in the wrist was so gross as to be unconscionable.Considering his experience in the bench and the ready availability of legal sources and materials from which he could check and verify his findings and conclusions, respondent Judge was clearly negligent in misapplying the law. He knew or ought to know that our laws impose severe penalties on violations of our dangerous drugs laws; consequently, he should have been alerted to the possibility of error when the penalty imposed was finally reduced to a ridiculously lenient one. The inexplicably low penalty which respondent Judge meted out on the accused in Criminal Case No. 561, was certainly out of proportion to the crime for which the latter had been convicted of.The policy of the law in imposing strict penalties for violations of the Dangerous Drugs Act cannot be gainsaid. The intendment of the law is to eradicate a menace to our society by a pernicious evil which day in and day out victimizes our youth. To lightly dismiss the respondent judge's mistakes in Criminal Case No. 561 would be to send the wrong signals.The office of a judge exists for one solemn end — to promote justice by administering it fairly and impartially. The judge is the visible representation of the law and justice. A judge who, through gross ignorance of the law or serious misconduct frustrates the ends of justice commits a rank disservice to the cause of justice which calls for the application of appropriate disciplinary measures (Villa vs. Amonoy, 194 SCRA 48 [1991]).Finally, respondent Judge failed to meet the standard mandated by Rules 3.01 and 3.02 of Canon 3 of the Code of Judicial Conduct, to wit:Rule 3.01 — A judge shall be faithful to the law and maintain professional competence.Rule 3.02 — In every case, a judge shall endeavor diligently to ascertain the fact and the applicable law unswayed by partisan interests, public opinion or fear of criticism.ACCORDINGLY, the Court resolved to hold respondent Judge administratively liable for gross ignorance of the law and with grave abuse of discretion, and to impose on him a fine of TEN THOUSAND PESOS (P10,000.00) with a STERN WARNING that a repetition of the same or similar act or acts in the future will be dealt with more severely.SO ORDERED.Feliciano, Padilla, Bidin, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno and Vitug, JJ., concur.Narvasa, C.J., Cruz and Regalado, JJ., are on leave.

[G.R. No. 161265. February 24, 2004]LABAN NG DEMOKRATIKONG PILIPINO, represented by its Chairman EDGARDO J. ANGARA VS. THE COMMISION ON ELECTIONS and AGAPITO A. AQUINO

D E C I S I O NTINGA, J.:The Bible tells the story of how two women came to King Solomon to decide who among them is the baby’s true mother. King Solomon, in his legendary wisdom, awarded the baby to the woman who gave up her claim after he threatened to split the baby into two.It is fortunate that the two women did not ask the Commission on Elections (COMELEC) to decide the baby’s fate; otherwise, it would have cut the baby in half. For that is what the COMELEC exactly did in this case.On December 8, 2003, the General Counsel of the Laban ng Demokratikong Pilipino (LDP), a registered political party, informed the COMELEC by way of Manifestation that only the Party Chairman, Senator Edgardo J. Angara, or his authorized representative may endorse the certificate of candidacy of the party’s official candidates. The sameManifestation stated that Sen. Angara had placed the LDP Secretary General, Representative Agapito A. Aquino, on “indefinite forced leave.” In the meantime, Ambassador Enrique A. Zaldivar was designated Acting Secretary General. The Manifestation concluded with this prayer:A. The Honorable Commission recognizes [sic] only those Certificates of Candidacy to which are attached Certificates of Nomination executed by LDP Party Chairman Edgardo J. Angara or by such other officers of the LDP whom he may authorize in writing, and whose written authorizations shall be deposited with the Honorable Commission by the LDP General Counsel.B. The Honorable Commission declares [sic] as a nullity, denies [sic] due course or cancels [sic] all Certificates of Candidacy not endorsed by LDP Party Chairman Angara or by such other LDP officials as may be authorized by him.C. The Honorable Commission takes [sic] note of the designation of Ambassador Enrique “Ike” A. Zaldivar as Acting Secretary General of the LDP, and for the Honorable Commission to honor and recognize the official acts, to the exclusion of everyone, of Ambassador Zaldivar for and in behalf of the LDP as Secretary General.[1]

On December 16, 2003, Rep. Aquino filed his Comment, contending that the Party Chairman does not have the authority to impose disciplinary sanctions on the Secretary General. As the Manifestation filed by the LDP General Counsel has no basis, Rep. Aquino asked the COMELEC to disregard the same.On December 17, 2003, the parties agreed to file a joint manifestation pending which the proceedings were deemed suspended. On December 22, 2003, however, only the LDP General Counsel filed an Urgent Manifestation reiterating the contents of the December 8, 2003 Manifestation. The COMELEC also received a Letter from Rep. Aquino stating that the parties were unable to arrive at a joint manifestation.The next day, the LDP General Counsel filed a Second Urgent Manifestation disputing newspaper accounts that Rep. Aquino had suspended Sen. Angara as Party Chairman.

On December 26, 2003, the COMELEC issued an Order requiring the parties to file a verified petition. It turned out that, two days before, Sen. Angara had submitted a verifiedPetition, in essence, reiterating the contents of its previous Manifestations. Attached to the Petition was a Resolution[2] adopted by the LDP National Executive Council, stating:WHEREAS, on September 25, 2003, the National Executive Council of the Laban ng Demokratikong Pilipino (LDP) convened and unanimously passed a resolution granting full authority to Party Chairman Edgardo J. Angara to enter, negotiate and conclude a coalition agreement with other like-minded opposition parties, aggrupations and interest groups with the sole purpose of uniting the political opposition and fielding a unity ticket for the May 10, 2004 elections;WHEREAS, on December 3, 2003, the LDP, together with the Puwersa ng Masang Pilipino (PMP) and the Partido Demokratiko ng Pilipinas - LABAN (PDP-LABAN) forged a coalition to form theKoalisyon ng Nagkakaisang Pilipino (KNP);WHEREAS, the Executive Committee of the KNP subsequently adopted its resolution entitled: “Resolution Choosing Mr. Fernando Poe, Jr. as the Standard Bearer of the Koalisyon ng Nagkakaisang Pilipino (KNP) for President of the Republic of the Philippines in the May 10, 2004 National Elections”;. . . .WHEREAS, the process of unification of the political opposition and the actions taken in connection therewith by Chairman Angara and by other governing bodies of the LDP required the taking of immediate and forceful action by them to preserve and protect the integrity, credibility, unity and solidarity of the LDP, and ensure the attainment of unification of the political opposition;WHEREAS, such immediate and forceful action include those that have to do with pre-emptive efforts to diffuse the chaos, confusion and disunity projected by the pronouncements and acts of some officers and members to the general membership of the LDP and the electorate, such as the one taken by the Regional Committee for Region VI (Western Visayas) on December 6, 2003; the enforcement of order in the LDP through the voice of a central leadership in command in an otherwise extraordinary and emergency situation, such as the one taken by Party Chairman Angara on December 6, 2003; the filing of the Manifestation with the COMELEC on the matter of the authorized signatories for the nominations and, the adoption of resolutions by the regional committees affirming their trust and confidence in Chairman Angara, and authorizing him to choose the presidential standard bearer for the May 10, 2004 elections; NOW THEREFORE, BE ITRESOLVED, AS IT IS HEREBY RESOLVED, By the National Executive Council, to ratify and confirm the Covenant of National Unity, the Declaration of Unity entered into by Party Chairman Edgardo J. Angara, and all acts and decisions taken by him to enforce and implement the same;RESOLVED, FURTHER, To ratify and confirm all other acts and decisions of Chairman Angara and other governing bodies to preserve the integrity, credibility, unity and solidarity of the LDP; and,RESOLVED, FINALLY, To reiterate the vote of confidence of the National Executive Council in, and support to, the continued efforts of Chairman Angara to unite the political opposition.[3]

Rep. Aquino filed his Answer to the Petition on December 30, 2003. The COMELEC heard the parties on oral arguments on the same day, after which the case was submitted for resolution.Pending resolution, a Certificate of Nomination of Sen. Panfilo Lacson as LDP candidate for President was filed with the COMELEC. The Certificate of Nomination was signed by Rep. Aquino as LDP Secretary General.On January 6, 2004, the COMELEC came to a decision.The Commission identified the sole issue as “who among the [LDP] officers [are] authorized to authenticate before the Commission that the person filing the certificate of candidacy as party nominee for a certain position is the official candidate of the party chosen in accordance with its Constitution.”[4]

The COMELEC recognized that it “has the authority to act on matters pertaining to ‘the ascertainment of the identity of [a] political party and its legitimate officers….’” [5] In the same breath, however, it held that “internal party matters and wranglings [sic] are purely for the party members to settle among themselves and any unsettled controversy should be brought to the proper forum with jurisdiction.” The “question of who was suspended by whom” was thus left for such proper forum to resolve. [6] Noting that “the intramurals in the LDP as an internal party matter seems to be irreconcilable for the present when the filing of Certificate of Candidacy and Certificate of Nomination are about to reach the deadline,” the COMELEC disposed of the Petition in the following fashion:WHEREFORE, premises considered, the petition is GRANTED with LEGAL EQUITY for both Petitioner and Oppositor. The candidates for President down to the last Sangguniang Bayan Kagawad nominated and endorsed by LDP Chairman Edgardo J. Angara are recognized by the Commission as official candidates of LDP “Angara Wing”. The candidates from President down to the last Sangguniang Bayan Kagawad as nominated and endorsed by LDP Secretary General Agapito “Butz” Aquino are recognized as official candidates of LDP “Aquino Wing”.Consequently, each faction or “Wing” is entitled to a representative to any election committee to which it may be entitled as created by the Commission for the May 10, 2004 elections. For the copies of the election returns, the “Angara Wing” will be entitled to the copies corresponding to odd number of precincts, that is, Precinct Nos. 1, 3, 5, etc., and for the “Aquino Wing” to the even number of precincts, that is Precinct Nos. 2, 4, 6, etc. This is on the assumption that the LDP or as a party within a registered Political Coalition becomes a recognized and denominated as a Dormant [sic] Minority Party under the Election Laws. The two LDP “Wings” are further entitled to and be accorded the rights and privileges with corresponding legal obligations under Election Laws.[7]

Commissioners Luzviminda G. Tancangco, Ralph C. Lantion, Resurreccion Z. Borra and Florentino A. Tuason, Jr. concurred in the Resolution authored by Commissioner Rufino

S.B. Javier. Chair Benjamin S. Abalos, Sr., joined by Commissioner Mehol K. Sadain, submitted dissenting opinions.Sen. Angara thus filed the present petition for Certiorari[8] assailing the COMELEC Resolution for having been issued with grave abuse of discretion.Thereafter, Rep. Aquino filed his Comment.The Office of the Solicitor General submitted a Manifestation and Motion praying for the granting of the Petition. The COMELEC thus filed a separate Comment to the Petition.The COMELEC correctly stated that “the ascertainment of the identity of [a] political party and its legitimate officers” is a matter that is well within its authority. The source of this authority is no other than the fundamental law itself, which vests upon the COMELEC the power and function to enforce and administer all laws and regulations relative to the conduct of an election.[9] In the exercise of such power and in the discharge of such function, the Commission is endowed with ample “wherewithal” and “considerable latitude in adopting means and methods that will ensure the accomplishment of the great objectives for which it was created to promote free, orderly and honest elections.”[10]

Thus, in Kalaw v. Commission on Elections which involved the leadership fight in the Liberal Party, [11] this Court held:… that the respondent [COMELEC] has jurisdiction to hear and decide SP Case No. 85-021 [involving a petition to prohibit Eva Estrada Kalaw “from usurping or using the title or position of President of the Liberal Party”] in view of its powers under Article IX-C, Section 2, of the Constitution to, among others, enforce and administer all laws relative to the conduct of elections, decide all questions affecting elections, register and regulate political parties, and insure orderly elections. These powers include the determination of the conflicting claims made in SP Case No. 85-021, which are likely to cause confusion among the electorate if not resolved. Additionally, the COMELEC is mandated by the Election Code to inter alia require candidates to specify their political party affiliation in their certificates of candidacy, allow political parties to appoint watchers, limit the expenditures of each political party, determine whether or not a political party shall retain its registration on the basis of its showing in the preceding elections, etc. These matters include the ascertainment of the identity of the political party and its legitimate officers responsible for its acts and the resolution of such controversies as the one now before it where one party appears to be divided into two wings under separate leaders each claiming to be the president of the entire party…. [Emphasis supplied.]Likewise in Palmares v. Commission on Elections,[12] to which the assailed Resolution made reference and which involved the Nacionalista Party, [13] this Court ruled… that the COMELEC has jurisdiction over the issue of leadership in a political party. Under the Constitution, the COMELEC is empowered to register political parties [Sec. 2(5), Article IX-C.] Necessarily, the power to act on behalf of a party and the responsibility for the acts of such political party must be fixed in certain persons acting as its officers. In the exercise of the power to register political parties, the COMELEC must determine who these officers are. Consequently, if there is any controversy as to leadership, the COMELEC may, in a proper case brought before it, resolve the issue incidental to its power to register political parties.This Court then proceeded to quote from Kalaw, supra.The two cited decisions find support in Sumulong v. Commission on Elections[14] and Sotto v. Commission on Elections,[15] where this Court, in resolving the issue as to who between the factions of a political party was entitled to nominate election inspectors, necessarily settled claims to the party’s leadership. Both cases were decided without question on the COMELEC’s power to determine such claims. In conformity with jurisprudence, this Court did not identify the COMELEC’s jurisdiction as an issue when this case was heard on oral argument.There is no inconsistency between the above cases on the one hand and this Court’s more recent ruling in Sinaca v. Mula[16] on the other. In the latter case, this Court held:A political party has the right to identify the people who constitute the association and to select a standard bearer who best represents the party’s ideologies and preference. Political parties are generally free to conduct their internal affairs free from judicial supervision; this common-law principle of judicial restraint, rooted in the constitutionally protected right of free association, serves the public interest by allowing the political processes to operate without undue interference. Thus, the rule is that the determination of disputes as to party nominations rests with the party, in the absence of statutes giving the court’s [sic] jurisdiction.Quintessentially, where there is no controlling statute or clear legal right involved, the court will not assume jurisdiction to determine factional controversies within a political party, but will leave the matter for determination by the proper tribunals of the party itself or by the electors at the polls. Similarly, in the absence of specific constitutional or legislative regulations defining how nominations are to be made, or prohibiting nominations from being made in certain ways, political parties may handle such affairs, including nominations, in such manner as party rules may establish. [Emphasis supplied.]Sinaca, unlike previous cases, did not involve the question of party identity or leadership; hence, it was not necessary for the COMELEC to delve therein. None of the candidates involved in that case were claiming to be the political party’s sole candidate.In the case at bar, the Party Chairman, purporting to represent the LDP, contends that under the Party Constitution only he or his representative, to the exclusion of the Secretary General, has the authority to endorse and sign party nominations. The Secretary General vigorously disputes this claim and maintains his own authority. Clearly, the question of party identity or leadership has to be resolved if the COMELEC is to ascertain whether the candidates are legitimate party standard bearers or not.The repercussions of the question of party identity and leadership do not end at the validity of the endorsement of the certificates of candidacy of persons claiming to be the party’s standard bearer. The law grants a registered political party certain rights and privileges,[17] which, naturally, redound to the benefit of its candidates. It is also for this

significant dimension that Sinaca is not applicable in this case. As conceded in Sinaca itself, the Court will have to assume jurisdiction to determine factional controversies within a political party where a controlling statute or clear legal right is involved.[18] Verily, there is more than one law, as well as a number of clear legal rights, that are at stake in the case at bar.The law accords special treatment to political parties. The dominant majority party, the dominant minority party as determined by the COMELEC, for instance, is entitled to a copy of the election returns.[19] The six (6) accredited major political parties may nominate the principal watchers to be designated by the Commission. [20] The two principal watchers representing the ruling coalition and the dominant opposition coalition in a precinct shall, if available, affix their signatures and thumbmarks on the election returns for that precinct.[21]Three (3) of the six accredited major political parties are entitled to receive copies of the certificate of canvass.[22] Registered political parties whose candidates obtained at least ten percent (10%) of the total votes cast in the next preceding senatorial election shall each have a watcher and/or representative in the procurement and watermarking of papers to be used in the printing of election returns and official ballots and in the printing, numbering, storage, and distribution thereof.[23] Finally, a candidate and his political party are authorized to spend more per voter than a candidate without a political party.[24]

It is, therefore, in the interest of every political party not to allow persons it had not chosen to hold themselves out as representatives of the party. Corollary to the right of a political party “to identify the people who constitute the association and to select a standard bearer who best represents the party’s ideologies and preference” [25] is the right to exclude persons in its association and to not lend its name and prestige to those which it deems undeserving to represent its ideals. A certificate of candidacy makes known to the COMELEC that the person therein mentioned has been nominated by a duly authorized political group empowered to act and that it reflects accurately the sentiment of the nominating body.[26] A candidate’s political party affiliation is also printed followed by his or her name in the certified list of candidates.[27] A candidate misrepresenting himself or herself to be a party’s candidate, therefore, not only misappropriates the party’s name and prestige but foists a deception upon the electorate, who may unwittingly cast its ballot for him or her on the mistaken belief that he or she stands for the party’s principles. To prevent this occurrence, the COMELEC has the power and the duty to step in and enforce the law not only to protect the party but, more importantly, the electorate, in line with the Commission’s broad constitutional mandate to ensure orderly elections.Having revisited and clarified the jurisdiction of COMELEC to rule upon questions of party identity and leadership as an incident to its enforcement powers, this Court cannot help but be baffled by the COMELEC’s ruling declining to inquire into which party officer has the authority to sign and endorse certificates of candidacy of the party’s nominees.The only issue in this case, as defined by the COMELEC itself, is who as between the Party Chairman and the Secretary General has the authority to sign certificates of candidacy of the official candidates of the party. Indeed, the petitioners’ Manifestation and Petition before the COMELEC merely asked the Commission to recognize only those certificates of candidacy signed by petitioner Sen. Angara or his authorized representative, and no other.To resolve this simple issue, the COMELEC need only to turn to the Party Constitution. It need not go so far as to resolve the root of the conflict between the party officials. It need only resolve such questions as may be necessary in the exercise of its enforcement powers.The LDP has a set of national officers composed of, among others, the Party Chairman and the Secretary General.[28] The Party Chairman is the Chief Executive Officer of the Party, whose powers and functions include:(1) To represent the Party in all external affairs and concerns, sign documents for and on its behalf, and call the meetings and be the presiding officer of the National Congress and the National Executive Council….[29]

The Secretary General, on the other hand, assists the Party Chairman in overseeing the day-to-day operations of the Party. Among his powers and functions is:(1) When empowered by the Party Chairman, to sign documents for and on behalf of the Party…. [30]

The Secretary General’s authority to sign documents, therefore, is only a delegated power, which originally pertains to the Party Chairman.Rep. Aquino claims that he was authorized to exercise to sign the party candidates’ certificates of candidacy in the previous elections. Indeed, the COMELEC found that:In fact, during the May 14, 2001 elections, oppositor Agapito “Butz’ Aquino, as LDP Secretary General, was authorized by the LDP to sign for the Certificates of Nomination of the LDP Senatorial Candidates, including the Certificate of Nomination for Senatorial Candidate Edgardo J. Angara, a copy of said Certificate of Nomination and a copy of the Certificate for Senator Edgardo J. Angara are attached as Annexes A and B, respectively. This action by Secretary General Aquino is in accordance with the Constitution and By-laws of LDP, not questioned by the LDP signed by its Secretary General. This revocation has not been revoked or recalled by the National Congress of the LDP which is the one authorized to nominate candidates for President and Vice-President, respectively.[31]

Assuming that Rep. Aquino previously had such authority, this Court cannot share the COMELEC’s finding that the same “has not been revoked or recalled.” No revocation of such authority can be more explicit than the totality of Sen. Angara’s Manifestations and Petition before the COMELEC, through which he informed the Commission that Rep. Aquino’s had been placed on indefinite forced leave and that Ambassador Zaldivar has been designated Acting Secretary General, who “shall henceforth exercise all the powers and functions of the Secretary General under the Constitution and By-Laws of the LDP.”[32] As the prerogative to empower Rep. Aquino to sign documents devolves upon Sen. Angara, so he may choose, at his discretion, to withhold or revoke such power.

Both respondents Rep. Aquino and COMELEC also cited Section 6 of COMELEC Resolution No. 6453[33] as basis for the Party Secretary General’s authority to sign certificates of candidacy. Said Section 6 states:SEC. 6. Certificate of nomination of official candidates by political party. – The certificate of nomination of registered political parties or coalitions of political parties of their official candidates shall be filed not later than the last day for filing of certificates of candidacy, which is January 2, 2004 duly signed and attested under oath by the party president, chairman, secretary-general or any otherduly authorized officer and shall bear the acceptance of the nominee by affixing his signature in the space provided therein. [Emphasis and underscoring supplied.]Clearly, however, the above provision presupposes that the party president, chairman or secretary-general has been “duly authorized” by the party to sign the certificate of candidacy. COMELEC Resolution No. 6453 cannot grant a party official greater authority than what the party itself grants, lest such Resolution amount to a violation of the party’s freedom of association.Neither does the Party Secretary General have the power to nominate the official candidates of the LDP. That power resides in the governing bodies of the Party.[34] In particular, the National Congress, which is the highest policy-making and governing body of the Party, has the power(6) To nominate the official candidates of the Party for President, Vice President, and Senators, and, whenever the corresponding conventions fail to meet or to make the requisite nominations, to nominate the official candidates for municipal city, congressional district, provincial and regional elective offices….[35]

Not only does Rep. Aquino insist on his power to sign Certificates of Candidacy on behalf of the LDP but he would also deny Sen. Angara that power on account of the latter’s preventive suspension. It seems, however, that respondent has abandoned this tack by the silence of his Memorandum on the matter.In any case, it appears that on November 28, 2003, Representative Rolex Suplico, LDP Region VI Regional Chairman, filed a complaint with Rep. Aquino against Party Chairman Sen. Angara for disloyalty to the Party, gross violation of the Party Constitution, and other divisive acts inimical to the interest of the party and its members. Rep. Aquino, as Secretary General, created a committee composed of three (3) members of the LDP National Executive Council to investigate the complaint and recommend appropriate action thereon. On December 12, 2003, the investigating committee issued a resolution placing Sen. Angara under preventive suspension effective immediately and directing him to refrain from performing acts in behalf of the party until the committee finishes its investigation and submits its final recommendations.The authority to create the investigating committee supposedly rests on Section 9 (4), Article VI of the LDP Constitution, which enumerates the powers and functions of the Secretary General:(4) With the concurrence of the Party Chairman, to enforce Party discipline…. {Emphasis supplied.]Evidently, just as Rep. Aquino has no power to sign and nominate candidates in behalf of the LDP, neither does he have the power to enforce Party discipline or, as an incident thereto, to create an investigating committee, without the Party Chairman’s concurrence. Much less does the investigating committee so created have the power to place the Party Chairman under preventive suspension since its authority stems from a nullity. Simply put, the spring has no source.The lack of Rep. Aquino’s authority to sign documents or to nominate candidates for the LDP would not result in the denial of due course to or the cancellation of the certificates of candidacy he may have signed on behalf of the LDP.[36] The exclusive ground for the denial of due course to or the cancellation of a certificate of candidacy for any elective office is that any material representation contained therein as required by law is false.[37] Since the signature of Rep. Aquino was affixed either prior to, or on the basis of, the challengedResolution recognizing his authority to sign on behalf of the LDP, the same would not constitute material representation that is false. In such case, the candidates are simply deemed as not nominated by the LDP and are considered independent candidates pursuant to Section 7 of COMELEC Resolution No. 6453:SEC. 7. Effect of filing certificate of nomination. – A candidate who has not been nominated by a registered political party or its duly authorized representative, or whose nomination has not been submitted by a registered political party… shall be considered as an independent candidate.COMELEC Commissioner Sadain referred to the above provision in his Dissenting Opinion, and this Court finds refreshing wisdom – so sorely wanting in the majority opinion – in his suggestion that:All other party members representing themselves to be candidates of the party shall not be deprived of their right to file their respective certificates of candidacy and run for office, if so qualified, but that they shall not be accorded the rights and privileges reserved by election laws for official nominees of registered political parties. Instead, they shall be treated as independent candidates.[38]

From the foregoing, it is plain that the COMELEC misapplied equity in the present case. For all its conceded merits, equity is available only in the absence of law and not as its replacement.[39] Equity is described as justice without legality, which simply means that it cannot supplant, although it may, as often happens, supplement the law. [40] The COMELEC should have decided the case on the basis of the party constitution and election laws. It chose not to because of its irrational fear of treading, as respondent Aquino put it, on “unchartered” territories.[41] But, as shown above, these territories have long been charted by jurisprudence and, in any case, the COMELEC need not have sailed far from the shore to arrive at the correct conclusion. In truth, the COMELEC Resolution is indecision in the guise of equity.Worse, the COMELEC divided the LDP into “wings,” each of which may nominate candidates for every elective position. Both wings are also entitled to representatives in the election committees that the Commission may create. In the event that the LDP is accorded dominant minority party election status, election returns of odd-numbered

precincts shall be furnished the Angara wing and those of even-numbered precincts, the Aquino wing.By creating the two wings, the COMELEC effectively diffused the LDP’s strength and undeniably emasculated its chance of obtaining the Commission’s nod as the dominant minority party.By allowing each wing to nominate different candidates, the COMELEC planted the seeds of confusion among the electorate, who are apt to be confounded by two candidates from a single political party. In Recabo, Jr. v. Commission on Elections,[42] this Court declared that the electoral process envisions one candidate from a political party for each position, and disunity and discord amongst members of a political party should not be allowed to create a mockery thereof. The admonition against mocking the electoral process not only applies to political parties but with greater force to the COMELEC.By according both wings representatives in the election committees, the COMELEC has eroded the significance of political parties and effectively divided the opposition. The COMELEC has lost sight of the unique political situation of the Philippines where, to paraphrase Justice Perfecto’s concurring opinion in Sotto, supra, the administration party has always been unnecessarily and dangerously too big and the opposition party too small to be an effective check on the administration. The purpose of according dominant status and representation to a minority party is precisely to serve as an effective check on the majority. The COMELEC performed a disservice to the opposition and, ultimately, to the voting public, as its Resolution facilitated, rather than forestalled, the division of the minority party.By splitting copies of the election returns between the two factions, the COMELEC has fractured both wings. The practical purpose of furnishing a party with a copy of the election returns is to allow it to tally the results of the elections at the precinct level. Ultimately, it is a guard against fraud. Thus, resort to copies thereof may be had when the election returns are delayed, lost or destroyed, [43] or when they appear to be tampered or falsified.[44] A split party without a complete set of election returns cannot successfully help preserve the sanctity of the ballot.It bears reminding respondent Commission of this Court’s pronouncement in Peralta v. Commission on Elections,[45] which, while made in the backdrop of a parliamentary form of government, holds equally true under the present government structure:… political parties constitute a basic element of the democratic institutional apparatus. Government derives its strength from the support, active or passive, of a coalition of elements of society. In modern times the political party has become the instrument for the organization of societies. This is predicated on the doctrine that government exists with the consent of the governed. Political parties perform an “essential function in the management of succession to power, as well as in the process of obtaining popular consent to the course of public policy. They amass sufficient support to buttress the authority of governments; or, on the contrary, they attract or organize discontent and dissatisfaction sufficient to oust the government. In either case they perform the function of the articulation of the interests and aspirations of a substantial segment of the citizenry, usually in ways contended to be promotive of the national weal.”The assailed COMELEC Resolution does not advance, but subverts, this philosophy behind political parties.As if to rationalize its folly, the COMELEC invokes the constitutional policy towards a free and open party system.[46] This policy, however, envisions a system that shall “evolve according to the free choice of the people,” [47] not one molded and whittled by the COMELEC. When the Constitution speaks of a multi-party system, it does not contemplate the COMELEC splitting parties into two. For doing just that, this pretender to the throne of King Solomon acted whimsically and capriciously. Certiorari lies against it, indeed.WHEREFORE, the assailed COMELEC Resolution is ANNULLED and the Petition is GRANTED IN PART. Respondent Commission on Elections is directed to recognize as official candidates of the Laban ng Demokratikong Pilipino only those whose Certificates of Candidacy are signed by LDP Party Chairman Senator Edgardo J. Angara or his duly authorized representative/s.SO ORDERED.Vitug, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.Davide, Jr., C.J., in the result.Puno, J., on leave.Vitug, J., please see separate opinion.Sandoval-Gutierrez, J., please see dissenting opinion.Corona, J., joins the dissenting opinion of J. Gutierrez.

Buac v. COMELEC 

FACTS: 

On April 25, 1998, the COMELEC conducted a plebiscite in Taguig, Metro Manila on the conversion of this municipality into a highly urbanized city as mandated by Republic Act No. 8487. The residents of Taguig were asked this question: “Do you approve the conversion of the Municipality of Taguig, Metro Manila into a highly urbanized city to be known as the City of

Taguig, as provided for in Republic Act No. 8487? ” 

On April 26, 1998, the Plebiscite Board of Canvassers (PBOC), without completing the canvass of sixty-four (64) other election returns, declared that the “No” votes won, indicating that the people rejected the conversion of Taguig into a city.

However, upon order of the COMELEC en banc, the PBOC reconvened and completed the canvass of the plebiscite returns, eventually proclaiming that the negative votes still prevailed.

Alleging that fraud and irregularities attended the casting and counting of votes, private respondents, filed with the COMELEC a petition seeking the annulment of the announced results of the plebiscite with a prayer for revision and recount of the ballots. The COMELEC treated the petition as an election protest, docketed as EPC No. 98-102. It was raffled to the Second Division.

Petitioner intervened in the case. He then filed a motion to dismiss the petition on the ground that the COMELEC has no jurisdiction over an action involving the conduct of a plebiscite. He alleged that a plebiscite cannot be the subject of an election protest.

The COMELEC Second Division issued a Resolution granting petitioner’s motion and dismissing the petition to annul the results of the Taguig plebiscite for lack of jurisdiction. The COMELEC en banc affirmed this Resolution.

Accordingly, on April 19, 2004, the COMELEC Second Division issued an Order in EPC No. 98-102 constituting the committees for the revision/recount of the plebiscite ballots.

On April 28, 2004, the revision/recount proceedings commenced and upon its termination, the Committees on Revision submitted their complete and final reports.

Thereafter, the COMELEC Second Division set the case for hearing. As no witnesses were presented by petitioner, the parties were directed to submit their respective memoranda, which they did.

Petitioner contends that “the revision of the plebiscite ballots cannot be relied upon for the determination of the will of the electorate” because “the revision is incomplete. He claims that:

“Based on the Final Report of the Committee on Revision for each of the eight (8) Revision Committees, the revision of ballots yielded a total of 15,802 votes for ‘Yes’ and a total of 12,602 votes for ‘No.’ The revision committee thus canvassed only a total of 28,404 ballots.

As shown by the records, the COMELEC considered not only the total number of votes reflected in the Final Canvassing Report of the Taguig PBOC, but also the voting results based on (1) the physical count of the ballots; (2) the returns of the uncontested precincts; and (3) the appreciation of the contested ballots, all summed up and tallied as follows:

Affirmative NegativeTotal Number of Votes Per PBOC Canvassing Report 19,413 21,890Minus: Number of Invalid Votes 253 419Minus: Number of Votes Deducted from the Plebiscite Returns After Physical Count (Table D) 0 2,024

Plus: Number of Votes Added After Physical Count 1,936 0(Table D)Plus: Credited Claimed Ballots 9 13Total 21,105 19,460

ISSUE:

Whether or not the COMELEC gravely abused its discretion.

HELD:

Petitions dismissed for lack of merit.The above factual findings of the COMELEC supported by evidence, are accorded, not only respect, but finality. This is so because “the conduct of plebiscite and determination of its result have always been the business of the COMELEC and not the regular courts. Such a case involves the appreciation of ballots which is best left to the COMELEC. As an independent constitutional body exclusively charged with the power of enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall, the COMELEC has the indisputable expertise in the field of election and related laws.” Its acts, therefore, enjoy the presumption of regularity in the performance of official duties.

In fine, we hold that in issuing the challenged Resolution and Order in these twin petitions, the COMELEC did not gravely abuse its discretion.

NATIONAL PRESS CLUB VS. COMELEC [201 SCRA 1; G.R. NO. 1026653; 5 MAR 1992]Sunday, February 08, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law

Facts: Petitioners in these cases consist of representatives of the mass media which are prevented from selling or donating space and time for political advertisements; two (2) individuals who are candidates for office (one for national and the other for provincial office) in the coming May 1992 elections; and taxpayers and voters who claim that their right to be informed of election Issue and of credentials of the candidates is being curtailed. It is principally argued by petitioners that Section 11 (b) of Republic Act No. 66461 invades and violates the constitutional guarantees comprising freedom of expression. Petitioners maintain that the prohibition imposed by Section 11 (b) amounts to censorship, because it selects and singles out for suppression and repression with criminal sanctions, only publications of a particular content, namely, media-based election or political propaganda during the election period of 1992. It is asserted that the prohibition is in derogation of media's role, function and duty to provide adequate channels of public information and public opinionrelevant to election Issue. Further, petitioners contend that Section 11 (b) abridges the freedom of speech of candidates, and that the suppression of media-based campaign or political propaganda except those appearing in the Comelec space of the newspapers and on Comelec time of radio and television broadcasts, would bring about a substantial reduction in the quantity or volume of information concerning candidates and Issue in the election thereby curtailing and limiting the right of voters to information and opinion.

Issue: Whether or Not Section 11 (b) of Republic Act No. 6646 constitutional.

Held: Yes. It seems a modest proposition that the provision of the Bill of Rights which enshrines freedom of speech, freedom of expression and freedom of the press has to be taken in conjunction with Article IX (C) (4) which may be seen to be a special provision applicable during a specific limited period — i.e., "during the election period." In our own society, equality of opportunity to proffer oneself for public office, without regard to the level of financial resources that one may have at one's disposal, is clearly an important value. One of the basic state policies given constitutional rank by Article II, Section 26 of the Constitution is the egalitarian demand that "the State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law." The essential questionis whether or not the assailed legislative or administrative provisions constitute a permissible exercise of the power of supervision or regulation of the operations of communication and information enterprises during an election period, or whether such act has gone beyond permissible supervision or regulation of media operations so as to constitute unconstitutional repression of freedom of speech andfreedom of the press. The Court considers that Section 11 (b) has not gone outside the permissible bounds of supervision or regulation of media operations during election periods.

Section 11 (b) is limited in the duration of its applicability and enforceability. By virtue of the operation of Article IX (C) (4) of the Constitution, Section 11 (b) is limited in its applicability in time to election periods. Section 11 (b) does not purport in any way to restrict the reporting by newspapers or radio or television stations of news or news-worthy events relating to candidates, their qualifications, political parties and programs of government. Moreover, Section 11 (b) does not reach commentaries and expressions of belief or opinion by reporters or broadcasters or editors or commentators or columnists in respect of candidates, their qualifications, and programs and so forth, so long at least as such comments, opinions and beliefs are not in fact advertisements for particular candidates covertly paid for. In sum, Section 11 (b) is not to be read as reaching any report or commentary other coverage that, in responsible media, is not paid for by candidates for political office. Section 11 (b) as designed to cover only paid political advertisements of particular candidates.

The limiting impact of Section 11 (b) upon the right to free speech of the candidates themselves is not unduly repressive or unreasonable.

G.R. No. 103956 March 31, 1992

BLO UMPAR ADIONG, petitioner, vs.COMMISSION ON ELECTIONS, respondent.

GUTIERREZ, JR., J.:

The specific issue in this petition is whether or not the Commission on Elections (COMELEC) may prohibit the posting of decals and stickers on "mobile" places, public or private, and limit their location or publication to the authorized posting areas that it fixes.

On January 13, 1992, the COMELEC promulgated Resolution No. 2347 pursuant to its powers granted by the Constitution, the Omnibus Election Code, Republic Acts Nos. 6646 and 7166 and other election laws.

Section 15(a) of the resolution provides:

Sec. 15. Lawful Election Propaganda. — The following are lawful election propaganda:

(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed letters, or other written or printed materials not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in length. Provided, That decals and stickers may be posted only in any of the authorized posting areasprovided in paragraph (f) of Section 21 hereof.

Section 21 (f) of the same resolution provides:

Sec. 21(f). Prohibited forms of election propaganda. —

It is unlawful:

xxx xxx xxx

(f) To draw, paint, inscribe, post, display or publicly exhibit any election propaganda in any place, whether public or private, mobile or stationary, except in the COMELEC common posted areas and/or billboards, at the campaign headquarters of the candidate or political party, organization or coalition, or at the candidate's own residential house or one of his residential houses, if he has more than one:Provided, that such posters or election propaganda shall not exceed two (2) feet by three (3) feet in size. (Emphasis supplied)

xxx xxx xxx

The statutory provisions sought to be enforced by COMELEC are Section 82 of the Omnibus Election Code on lawful election propaganda which provides:

Lawful election propaganda. — Lawful election propaganda shall include:

(a) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more than eight and one-half inches in width and fourteen inches in length;

(b) Handwritten or printed letters urging voters to vote for or against any particular candidate;

(c) Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding two feet by three feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three feet by eight feet in size, shall be allowed: Provided, That said streamers may not be displayed except one week before the date of the meeting or rally and that it shall be removed within seventy-two hours after said meeting or rally; or

(d) All other forms of election propaganda not prohibited by this Code as the Commission may authorize after due notice to all interested parties and hearing where all the interested parties were given an equal opportunity to be heard: Provided, That the Commission's authorization shall be published in two newspapers of general circulation throughout the nation for at least twice within one week after the authorization has been granted. (Section 37, 1978 EC)

and Section 11(a) of Republic Act No. 6646 which provides:

Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint, inscribe, write, post, display or publicly exhibit any election propaganda in any place, whether private, or public, except in the common poster areas and/or billboards provided in the immediately preceding section, at the candidate's own residence, or at the campaign headquarters of the candidate or political party: Provided, That such posters or election propaganda shall in no case exceed two (2) feet by three (3) feet in area: Provided, Further, That at the site of and on the occasion of a public meeting or rally, streamers, not more than two (2) and not exceeding three (3) feet by eight (8) feet each may be displayed five (5) days before the date of the meeting or rally, and shall be removed within twenty-four (24) hours after said meeting or rally; . . . (Emphasis supplied)

Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails the COMELEC's Resolution insofar as it prohibits the posting of decals and stickers in "mobile" places like cars and other moving vehicles. According to him such prohibition is violative of Section 82 of the Omnibus Election Code and Section 11(a) of Republic Act No. 6646. In addition, the petitioner believes that with the ban on radio, television and print political advertisements, he, being a neophyte in the field of politics stands to suffer grave and irreparable injury with this prohibition. The posting of decals and stickers on cars and other moving vehicles would be his last medium to inform the electorate that he is a senatorial candidate in the May 11, 1992 elections. Finally, the petitioner states that as of February 22, 1992 (the date of the petition) he has not received any notice from any of the Election Registrars in the entire country as to the location of the supposed "Comelec Poster Areas."

The petition is impressed with merit. The COMELEC's prohibition on posting of decals and stickers on "mobile" places whether public or private except in designated areas provided for by the COMELEC itself is null and void on constitutional grounds.

First — the prohibition unduly infringes on the citizen's fundamental right of free speech enshrined in the Constitution (Sec. 4, Article III). There is no public interest substantial enough to warrant the kind of restriction involved in this case.

There are various concepts surrounding the freedom of speech clause which we have adopted as part and parcel of our own Bill of Rights provision on this basic freedom.

All of the protections expressed in the Bill of Rights are important but we have accorded to free speech the status of a preferred freedom. (Thomas v. Collins, 323 US 516, 89 L. Ed. 430 [1945]; Mutuc v. Commission on Elections, 36 SCRA 228 [1970])

This qualitative significance of freedom of expression arises from the fact that it is the matrix, the indispensable condition of nearly every other freedom. (Palko v. Connecticut, 302 U.S. 319 [1937]; Salonga v. Paño, 134 SCRA 438 [1985]) It is difficult to imagine how the other provisions of the Bill of Rights and the right to free elections may be guaranteed if the freedom to speak and to convince or persuade is denied and taken away.

We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. (New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 686 [1964]; cited in the concurring opinion of then Chief Justice Enrique Fernando in Babst v. National Intelligence Board, 132 SCRA 316 [1984]) Too many restrictions will deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will truly be free, clean and honest.

We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage. (Mutuc v. Commission on Elections, supra)

The determination of the limits of the Government's power to regulate the exercise by a citizen of his basic freedoms in order to promote fundamental public interests or policy objectives is always a difficult and delicate task. The so-called balancing of interests — individual freedom on one hand and substantial public interests on the other — is made even more difficult in election campaign cases because the Constitution also gives specific authority to the Commission on Elections to supervise the conduct of free, honest, and orderly elections.

We recognize the fact that under the Constitution, the COMELEC during the election period is granted regulatory powers vis-a-vis the conduct and manner of elections, to wit:

Sec. 4. The Commission may, during the election period supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable equal rates therefore, for public information campaigns and forms among candidates in connection with the object of holding free, orderly, honest, peaceful and credible elections. (Article IX(c) section 4)

The variety of opinions expressed by the members of this Court in the recent case of National Press Club v. Commission on Elections (G.R. No. 102653, March 5, 1991) and its companion cases underscores how difficult it is to draw a dividing line between permissible regulation of election campaign activities and indefensible repression committed in the name of free and honest elections. In the National Press Club, case, the Court had occasion to reiterate the preferred status of freedom of expression even as it

validated COMELEC regulation of campaigns through political advertisements. The gray area is rather wide and we have to go on a case to case basis.

There is another problem involved. Considering that the period of legitimate campaign activity is fairly limited and, in the opinion of some, too short, it becomes obvious that unduly restrictive regulations may prove unfair to affected parties and the electorate.

For persons who have to resort to judicial action to strike down requirements which they deem inequitable or oppressive, a court case may prove to be a hollow remedy. The judicial process, by its very nature, requires time for rebuttal, analysis and reflection. We cannot act instantly on knee-jerk impulse. By the time we revoke an unallowably restrictive regulation or ruling, time which is of the essence to a candidate may have lapsed and irredeemable opportunities may have been lost.

When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the part of the electorate are invoked against actions intended for maintaining clean and free elections, the police, local officials and COMELEC, should lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to regulate are not antagonistic. There can be no free and honest elections if in the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed.

There were a variety of opinions expressed in the National Press Club v. Commission on Elections (supra) case but all of us were unanimous that regulation of election activity has its limits. We examine the limits of regulation and not the limits of free speech. The carefully worded opinion of the Court, through Mr. Justice Feliciano, shows that regulation of election campaign activity may not pass the test of validity if it is too general in its terms or not limited in time and scope in its application, if it restricts one's expression of belief in a candidate or one's opinion of his or her qualifications, if it cuts off the flow of media reporting, and if the regulatory measure bears no clear and reasonable nexus with the constitutionally sanctioned objective.

Even as the Court sustained the regulation of political advertisements, with some rather strong dissents, inNational Press Club, we find the regulation in the present case of a different category. The promotion of a substantial Government interest is not clearly shown.

A government regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S Ct 1673. (City Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118 [1984])

The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any substantial government interest. There is no clear public interest threatened by such activity so as to justify the curtailment of the cherished citizen's right of free speech and expression. Under the clear and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a writing instrument to be stilled:

The case confronts us again with the duty our system places on the Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedom secured by the first Amendment . . . That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions and it is the character of the right, not of the limitation, which determines what standard governs the choice . . .

For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other context might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the greatest abuses, endangering permanent interests, give occasion for permissible limitation. (Thomas V. Collins, 323 US 516 [1945]). (Emphasis supplied)

Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of the candidate or the political party. The regulation strikes at the freedom of an individual to express his preference and, by displaying it on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the expression becomes a statement by the owner, primarily his own and not of anybody else. If, in the National Press Club case,

the Court was careful to rule out restrictions on reporting by newspapers or radio and television stations and commentators or columnists as long as these are not correctly paid-for advertisements or purchased opinions with less reason can we sanction the prohibition against a sincere manifestation of support and a proclamation of belief by an individual person who pastes a sticker or decal on his private property.

Second — the questioned prohibition premised on the statute and as couched in the resolution is void for overbreadth.

A statute is considered void for overbreadth when "it offends the constitutional principle that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]).

In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.

In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court invalidated an ordinance prohibiting all distribution of literature at any time or place in Griffin, Georgia, without a license, pointing out that so broad an interference was unnecessary to accomplish legitimate municipal aims. In Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct. 146, the Court dealt with ordinances of four different municipalities which either banned or imposed prior restraints upon the distribution of handbills. In holding the ordinances invalid, the court noted that where legislative abridgment of fundamental personal rights and liberties is asserted, "the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions," 308 US, at 161. In Cantwell v Connecticut, 310 US 296, 84 L ed 1213, 60 S Ct. 900, 128 ALR 1352, the Court said that "[c]onduct remains subject to regulation for the protection of society," but pointed out that in each case "the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." (310 US at 304) (Shelton v. Tucker, 364 US 479 [1960]

The resolution prohibits the posting of decals and stickers not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in length in any place, including mobile places whether public or private except in areas designated by the COMELEC. Verily, the restriction as to where the decals and stickers should be posted is so broad that it encompasses even the citizen's private property, which in this case is a privately-owned vehicle. In consequence of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section 1, Article III of the Bill of Rights provides that no person shall be deprived of his property without due process of law:

Property is more than the mere thing which a person owns, it includes the right to acquire, use, and dispose of it; and the Constitution, in the 14th Amendment, protects these essential attributes.

Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the free use, enjoyment, and disposal of a person's acquisitions without control or diminution save by the law of the land. 1 Cooley's Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])

As earlier stated, we have to consider the fact that in the posting of decals and stickers on cars and other moving vehicles, the candidate needs the consent of the owner of the vehicle. In such a case, the prohibition would not only deprive the owner who consents to such posting of the decals and stickers the use of his property but more important, in the process, it would deprive the citizen of his right to free speech and information:

Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. The danger of distribution can so easily be controlled by traditional legal methods leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the constitution, the naked restriction of the dissemination of ideas." (Martin v. City of Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943])

The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty" interest, the burden of justification on the part of the

Government must be exceptionally convincing and irrefutable. The burden is not met in this case.

Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election propaganda in any place, whether public or private, except in the common poster areas sanctioned by COMELEC. This means that a private person cannot post his own crudely prepared personal poster on his own front door or on a post in his yard. While the COMELEC will certainly never require the absurd, there are no limits to what overzealous and partisan police officers, armed with a copy of the statute or regulation, may do.

The provisions allowing regulation are so loosely worded that they include the posting of decals or stickers in the privacy of one's living room or bedroom. This is delegation running riot. As stated by Justice Cardozo in his concurrence in Panama Refining Co. v. Ryan (293 U.S. 388; 79 L. Ed. 446 [1935), "The delegated power is unconfined and vagrant . . . This is delegation running riot. No such plentitude of power is susceptible of transfer."

Third — the constitutional objective to give a rich candidate and a poor candidate equal opportunity to inform the electorate as regards their candidacies, mandated by Article II, Section 26 and Article XIII, section 1 in relation to Article IX (c) Section 4 of the Constitution, is not impaired by posting decals and stickers on cars and other private vehicles. Compared to the paramount interest of the State in guaranteeing freedom of expression, any financial considerations behind the regulation are of marginal significance.

Under section 26 Article II of the Constitution, "The State shall guarantee equal access to opportunities for public service, . . . while under section 1, Article XIII thereof "The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, andpolitical inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good." (Emphasis supplied)

It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles, pedicabs and other moving vehicles needs the consent of the owner of the vehicle. Hence, the preference of the citizen becomes crucial in this kind of election propaganda not the financial resources of the candidate. Whether the candidate is rich and, therefore, can afford to doleout more decals and stickers or poor and without the means to spread out the same number of decals and stickers is not as important as the right of the owner to freely express his choice and exercise his right of free speech. The owner can even prepare his own decals or stickers for posting on his personal property. To strike down this right and enjoin it is impermissible encroachment of his liberties.

In sum, the prohibition on posting of decals and stickers on "mobile" places whether public or private except in the authorized areas designated by the COMELEC becomes censorship which cannot be justified by the Constitution:

. . . The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That is to manifest fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal hierarchy. The three departments of government in the discharge of the functions with which it is entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes must ever be on guard lest the restrictions on its authority, either substantive or formal, be transcended. The Presidency in the execution of the laws cannot ignore or disregard what it ordains. In its task of applying the law to the facts as found in deciding cases, the judiciary is called upon to maintain inviolate what is decreed by the fundamental law. Even its power of judicial review to pass upon the validity of the acts of the coordinate branches in the course of adjudication is a logical. corollary of this basic principle that the Constitution is paramount. It overrides any governmental measure that fails to live up to its mandates. Thereby there is a recognition of its being the supreme law. (Mutuc v. Commission on Elections, supra)

The unusual circumstances of this year's national and local elections call for a more liberal interpretation of the freedom to speak and the right to know. It is not alone the widest possible dissemination of information on platforms and programs which concern us. Nor are we limiting ourselves to protecting the unfettered interchange of ideas to bring about political change. (Cf. New York Times v. Sullivan, supra) The big number of candidates and elective positions involved has resulted in the peculiar situation where almost all voters cannot name half or even two-thirds of the candidates running for Senator. The public does not know who are aspiring to be elected to public office.

There are many candidates whose names alone evoke qualifications, platforms, programs and ideologies which the voter may accept or reject. When a person attaches a sticker with such a candidate's name on his car bumper, he is expressing more than the name; he is espousing ideas. Our review of the validity of the challenged regulation

includes its effects in today's particular circumstances. We are constrained to rule against the COMELEC prohibition.

WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a) of Resolution No. 2347 of the Commission on Elections providing that "decals and stickers may be posted only in any of the authorized posting areas provided in paragraph (f) of Section 21 hereof" is DECLARED NULL and VOID.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Paras, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon, J.J., concur.

Feliciano and Bellosillo, JJ., are on leave.

Separate Opinions

CRUZ, J.: concurring:

I join Mr. Justice Gutierrez and reiterate the views expressed in my dissent in National Press Club v. Commission on Elections. The stand taken by the Court in the case at bar is a refreshing change from its usual deferential attitude toward authoritarianism as a persistent vestige of the past regime. After the disappointing decision in the ad ban case, I hope that the present decision will guide us to the opposite direction, toward liberty and the full recognition of freedom of expression. This decision is a small step in rectifying the errors of the past, but it is a step just the same, and on the right track this time.

Regarding the sticker ban, I think we are being swamped with regulations that unduly obstruct the free flow of information so vital in an election campaign. The Commission on Elections seems to be bent on muzzling the candidates and imposing all manner of silly restraints on their efforts to reach the electorate. Reaching the electorate is precisely the purpose of an election campaign, but the Commission on Elections obviously believes that the candidates should be as quiet as possible.

Instead of limiting the dissemination of information on the election issues and the qualifications of those vying for public office, what the Commission on Elections should concentrate on is the education of the voters on the proper exercise of their suffrages. This function is part of its constitutional duty to supervise and regulate elections and to prevent them from deteriorating into popularity contests where the victors are chosen on the basis not of their platforms and competence but on their ability to sing or dance, or play a musical instrument, or shoot a basketball, or crack a toilet joke, or exhibit some such dubious talent irrelevant to their ability to discharge a public office. The public service is threatened with mediocrity and indeed sheer ignorance if not stupidity. That is the problem the Commission on Elections should try to correct instead of wasting its time on much trivialities as where posters shall be allowed and stickers should not be attached and speeches may be delivered.

The real threat in the present election is the influx of the unqualified professional entertainers whose only asset is the support of their drooling fans, the demagogues who drumbeat to the clink of coins their professed present virtues and past innocence, the opportunists for whom flexibility is a means of political survival and even of financial gain, and, most dangerous of all, the elements of our electorate who would, with their mindless ballots, impose these office-seekers upon the nation. These are the evils the Commission on Elections should try to correct, not the inconsequential and inane question of where stickers should be stuck. I have nothing but praise for the zeal of the Commission on Elections in pursuing the ideal of democratic elections, but I am afraid it is barking up the wrong tree.

FRANCISCO I. CHAVEZ, petitioner, vs. COMMISSION ON ELECTIONS, represented by its Chairman, BENJAMIN S. ABALOS, ESMERALDA AMORA-LADRA, in her capacity as Acting Director IV, National Capital Judicial Region, Commission on Elections, and the SOLICITOR GENERAL, respondents.

D E C I S I O N

AZCUNA, J.:

In this petition for prohibition with prayer for the issuance of a writ of preliminary injunction, Francisco I. Chavez stands as a taxpayer and a citizen asking this Court to enjoin the Commission on Elections (COMELEC) from enforcing Section 32 of its Resolution No. 6520, dated January 6, 2004. The assailed provision is, as follows:

Section 32. All propaganda materials such as posters, streamers, stickers or paintings on walls and other materials showing the picture, image, or name of a person, and all advertisements on print, in radio or on television showing the image or mentioning the name of a person, who subsequent to the placement or display thereof becomes a candidate for public office shall be immediately removed by said candidate and radio station, print media or television station within 3 days after the effectivity of these implementing rules; otherwise, he and said radio station, print media or television station shall be presumed to have conducted premature campaigning in violation of Section 80 of the Omnibus Election Code.

Petitioner Chavez, on various dates, entered into formal agreements with certain establishments to endorse their products. On August 18, 2003, he authorized a certain Andrew So to use his name and image for 96° North, a clothing company. Petitioner also signed Endorsement Agreements with Konka International Plastics Manufacturing Corporation and another corporation involved in the amusement and video games business, G-Box. These last two agreements were entered into on October 14, 2003 and November 10, 2003, respectively. Pursuant to these agreements, three billboards were set up along the Balintawak Interchange of the North Expressway. One billboard showed petitioner promoting the plastic products of Konka International Plastics Manufacturing Corporation, and the other two showed petitioner endorsing the clothes of 96° North. One more billboard was set up along Roxas Boulevard showing petitioner promoting the game and amusement parlors of G-Box.

On December 30, 2003, however, petitioner filed his certificate of candidacy for the position of Senator under Alyansa ng Pag-asa, a tripartite alliance of three political parties: PROMDI, REPORMA, and Aksyon Demokratiko.

On January 6, 2004, respondent COMELEC issued Resolution No. 6520, which contained Section 32, the provision assailed herein. On January 21, 2004, petitioner was directed to comply with the said provision by the COMELEC’s Law Department. He replied, on January 29, 2004, by requesting the COMELEC that he be informed as to how he may have violated the assailed provision. He sent another letter dated February 23, 2004, this time asking the COMELEC that he be exempted from the application of Section 32, considering that the billboards adverted to are mere product endorsements and cannot be construed as paraphernalia for premature campaigning under the rules.

The COMELEC answered petitioner’s request by issuing another letter, dated February 27, 2004, wherein it ordered him to remove or cause the removal of the billboards, or to cover them from public view pending the approval of his request.

Feeling aggrieved, petitioner Chavez asks this Court that the COMELEC be enjoined from enforcing the assailed provision. He urges this Court to declare the assailed provision unconstitutional as the same is allegedly (1) a gross violation of the non-impairment clause; (2) an invalid exercise of police power; (3) in the nature of an ex-post facto law; (4) contrary to the Fair Elections Act; and (5) invalid due to overbreadth.

Is Section 32 of COMELEC Resolution No. 6520 an invalid exercise of police power? Petitioner argues that the billboards, while they exhibit his name and image, do not at all announce his candidacy for any public office nor solicit support for such candidacy from the electorate. They are, he claims, mere product endorsements and not election propaganda. Prohibiting, therefore, their exhibition to the public is not within the scope of the powers of the COMELEC, he concludes.

This Court takes a contrary view. Police power, as an inherent attribute of sovereignty, is the power to prescribe regulations to promote the health, morals, peace, education, good order, or safety, and the general welfare of the people.[1] To determine the validity of a police measure, two questions must be asked: (1) Does the interest of the public in general, as distinguished from those of a particular class, require the exercise of police power? and (2) Are the means employed reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals?

A close examination of the assailed provision reveals that its primary objectives are to prohibit premature campaigning and to level the playing field for candidates of public office, to equalize the situation between popular or rich candidates, on one hand, and lesser-known or poorer candidates, on the other, by preventing the former from enjoying undue advantage in exposure and publicity on account of their resources and popularity. The latter is a valid reason for the exercise of police power as held in National Press Club v. COMELEC,[2] wherein the petitioners questioned the constitutionality of Section 11(b) of Republic Act No. 6646, which prohibited the sale or donation of print space and air time “for campaigning or other political purposes,” except to the COMELEC. The obvious intention of this provision is to equalize, as far as practicable, the situations of rich and poor candidates by preventing the former from enjoying the undue advantage offered by huge campaign “war chests.” This Court ruled therein that this objective is of special importance and urgency in a country which, like ours, is characterized by extreme disparity in income distribution between the economic elite

and the rest of society, and by the prevalence of poverty, with so many of our population falling below the poverty line.

Moreover, petitioner cannot claim that the subject billboards are purely product endorsements and do not announce nor solicit any support for his candidacy. Under the Omnibus Election Code, “election campaign” or “partisan political activity” is defined as an act designed to promote the election or defeat of a particular candidate or candidates to a public office. Activities included under this definition are:

(1) Forming organizations, associations, clubs, committees, or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.[3] (underscoring ours)

It is true that when petitioner entered into the contracts or agreements to endorse certain products, he acted as a private individual and had all the right to lend his name and image to these products. However, when he filed his certificate of candidacy for Senator, the billboards featuring his name and image assumed partisan political character because the same indirectly promoted his candidacy. Therefore, the COMELEC was acting well within its scope of powers when it required petitioner to discontinue the display of the subject billboards. If the subject billboards were to be allowed, candidates for public office whose name and image are used to advertise commercial products would have more opportunity to make themselves known to the electorate, to the disadvantage of other candidates who do not have the same chance of lending their faces and names to endorse popular commercial products as image models. Similarly, an individual intending to run for public office within the next few months, could pay private corporations to use him as their image model with the intention of familiarizing the public with his name and image even before the start of the campaign period. This, without a doubt, would be a circumvention of the rule against premature campaigning:

Sec. 80. Election campaign or partisan political activity outside campaign period. – It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period. x x x [4]

Article IX (C) (4) of the Constitution provides:

Sec. 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.

Under the abovementioned Constitutional provision, the COMELEC is expressly authorized to supervise or regulate the enjoyment or utilization of all media communication or information to ensure equal opportunity, time, and space. All these are aimed at the holding of free, orderly, honest, peaceful, and credible elections.

Neither is Section 32 of Resolution No. 6520 a gross violation of the non-impairment clause. The non-impairment clause of the Constitution must yield to the loftier purposes targeted by the Government.[5] Equal opportunity to proffer oneself for public office, without regard to the level of financial resources one may have at his disposal, is indeed of vital interest to the public. The State has the duty to enact and implement rules to safeguard this interest. Time and again, this Court has said that contracts affecting public interest contain an implied reservation of the police power as a postulate of the existing legal order. This power can be activated at anytime to change the provisions of the contract, or even abrogate it entirely, for the promotion or protection of the general welfare. Such an act will not militate against the impairment clause, which is subject to and limited by the paramount police power.[6]

Furthermore, this Court notes that the very contracts entered into by petitioner provide that the endorser’s photograph and image shall be utilized in whatever form, mode and

manner “in keeping with norms of decency, reasonableness, morals and law;”[7] and in whatever form, mode and manner not contrary to law and norms of decency,”[8] and “in whatever form, mode and manner in keeping with norms of decency, reasonableness, morals and law.”[9]

Petitioner also claims that Section 32 of Resolution No. 6520 is in the nature of an ex post facto law. He urges this Court to believe that the assailed provision makes an individual criminally liable for an election offense for not removing such advertisement, even if at the time the said advertisement was exhibited, the same was clearly legal. Hence, it makes a person, whose name or image is featured in any such advertisement, liable for premature campaigning under the Omnibus Election Code.[10] A close scrutiny of this rationale, however, demonstrates its lack of persuasiveness. Section 32, although not penal in nature, defines an offense and prescribes a penalty for said offense. Laws of this nature must operate prospectively, except when they are favorable to the accused. It should be noted, however, that the offense defined in the assailed provision is not the putting up of“propaganda materials such as posters, streamers, stickers or paintings on walls and other materials showing the picture, image or name of a person, and all advertisements on print, in radio or on television showing the image or mentioning the name of a person, who subsequent to the placement or display thereof becomes a candidate for public office.” Nor does it prohibit or consider an offense the entering of contracts for such propaganda materials by an individual who subsequently becomes a candidate for public office. One definitely does not commit an offense by entering into a contract with private parties to use his name and image to endorse certain products prior to his becoming a candidate for public office. The offense, as expressly prescribed in the assailed provision, is the non-removal of the described propaganda materials three (3) days after the effectivity of COMELEC Resolution No. 6520. If the candidate for public office fails to remove such propaganda materials after the given period, he shall be liable under Section 80 of the Omnibus Election Code for premature campaigning. Indeed, nowhere is it indicated in the assailed provision that it shall operate retroactively. There is, therefore, no ex post facto law in this case.

Next, petitioner urges that Section 32 is a violation of the Fair Elections Act. According to him, under this law, billboards are already permitted as lawful election propaganda. He claims, therefore, that the COMELEC, in effectively prohibiting the use of billboards as a form of election propaganda through the assailed provision, violated the Fair Elections Act. Petitioner’s argument is not tenable. The Solicitor General rightly points out that the assailed provision does not prohibit billboards as lawful election propaganda. It only regulates their use to prevent premature campaigning and to equalize, as much as practicable, the situation of all candidates by preventing popular and rich candidates from gaining undue advantage in exposure and publicity on account of their resources and popularity.[11] Moreover, by regulating the use of such election propaganda materials, the COMELEC is merely doing its duty under the law. Under Sections 3 and 13 of the Fair Elections Act, all election propaganda are subject to the supervision and regulation by the COMELEC:

SECTION 3. Lawful Election Propaganda. -- Election propaganda, whether on television, cable television radio, newspapers or any other medium is hereby allowed for all registered political parties, national, regional, sectoral parties or organizations participating under the party list elections and for all bona fide candidates seeking national and local elective positions subject to the limitation on authorized expenses of candidates and political parties observance of truth in advertising and to the supervision and regulation by the Commission on Elections (COMELEC).

For the purpose of this Act, lawful election propaganda shall include:

3.1. Pamphlets, leaflets, cards, decals, stickers or other written or printed materials the size of which does not exceed eight and one half inches in width and fourteen inches in length;

3.2. Handwritten or printed letters urging voters to vote for or against any particular political party or candidate for public office;

3.3. Cloth, paper or cardboard posters whether framed or posted, with an area not exceeding two(2) feet by three (3) feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three (3) feet by eight (8) feet in size, shall be allowed: Provided, That said streamers may be displayed five (5) days before the date of the meeting or rally and shall be removed within twenty-four (24) hours after said meeting or rally;

3.4. Paid advertisements in print or broadcast media: Provided, That the advertisements shall follow the requirements set forth in Section 4 of this Act; and

3.5. All other forms of election propaganda not prohibited by the Omnibus Election Code or this Act.

x x x

SECTION 13. Authority of the COMELEC to Promulgate Rules; Election Offenses. –- The COMELEC shall promulgate and furnish all political parties and candidates and the mass

media entities the rules and regulations for the implementation of this Act, consistent with the criteria established in Article IX-C, Section 4 of the Constitution and Section 86 of the Omnibus Election Code (Batas Pambansa Blg. 881).

Rules and regulations promulgated by the COMELEC under and by authority of this Section shall take effect on the seventh day after their publication in at least two (2) daily newspapers of general circulation. Prior to effectivity of said rules and regulations, no political advertisement or propaganda for or against any candidate or political party shall be published or broadcast through mass media.

Violation of this Act and the rules and regulations of the COMELEC issued to implement this Act shall be an election offense punishable under the first and second paragraphs of Section 264 of the Omnibus Election Code (Batas Pambansa Blg. 881).

Finally, petitioner contends that Section 32 of COMELEC Resolution No. 6520 is invalid because of overbreadth.

A statute or regulation is considered void for overbreadth when it offends the constitutional principle that a governmental purpose to control or prevent activities constitutionally subject to State regulations may not be achieved by means that sweep unnecessarily broadly and thereby invade the area of protected freedoms.[12]

The provision in question is limited in its operation both as to time and scope. It only disallows the continued display of a person’s propaganda materials and advertisements after he has filed a certificate of candidacy and before the start of the campaign period. Said materials and advertisements must also show his name and image.

There is no blanket prohibition of the use of propaganda materials and advertisements. During the campaign period, these may be used subject only to reasonable limitations necessary and incidental to achieving the purpose of preventing premature campaigning and promoting equality of opportunities among all candidates.

The provision, therefore, is not invalid on the ground of overbreadth.

WHEREFORE, the petition is DISMISSED and Section 32 of COMELEC Resolution No. 6520 is declared valid and constitutional. The prayer for a Temporary Restraining Order and/or a Writ of Preliminary Injunction is hereby DENIED. No costs.

SO ORDERED.

PHILIPPINE PRESS INSTITUTE VS. COMELEC [244 SCRA 272; G.R. No. 119694; 22 May 1995]Saturday, January 31, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law

Facts: Respondent Comelec promulgated Resolution No. 2772directing newspapers to provide free Comelec space of not less than one-half page for the common use of political parties and candidates. The Comelec space shall be allocated by the Commission, free of charge, among all candidates to enable them to make known their qualifications, their stand on public Issue and their platforms of government. The Comelec space shall also be used by the Commission for dissemination of vital election information.

Petitioner Philippine Press Institute, Inc. (PPI), a non-profit organization of newspaper and magazine publishers, asks the Supreme Court to declare Comelec Resolution No. 2772 unconstitutional and void on the ground that it violates the prohibition imposed by the Constitution upon the government against the taking of private property for public use without just compensation. On behalf of the respondent Comelec, the Solicitor General claimed that the Resolution is a permissible exercise of the power of supervision (police power) of the Comelec over the information operations of print media enterprises during the election period to safeguard and ensure a fair, impartial and credible election.

Issue:

Whether or not Comelec Resolution No. 2772 is unconstitutional.

Held: The Supreme Court declared the Resolution as unconstitutional. It held that to compel print media companies to donate “Comelec space” amounts to “taking” of private personal property without payment of the just compensation required in expropriation cases. Moreover, the element of necessity for the taking has not been established by respondent Comelec, considering that thenewspapers were not unwilling to sell advertising space. The taking of private property for public use is authorized by the constitution, but not without payment of just compensation. Also Resolution No. 2772 does not constitute a valid exercise of the police power of the state. In the case at bench, there is no showing of existence of a national emergency to take private property of newspaper or magazine publishers.

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING CORPORATION, doing business as MANILA STANDARD,petitioners, vs. COMMISSION ON ELECTIONS, respondent.

D E C I S I O N

MENDOZA, J.:

Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research institution conducting surveys in various fields, including economics, politics, demography, and social development, and thereafter processing, analyzing, and publicly reporting the results thereof. On the other hand, petitioner Kamahalan Publishing Corporation publishes the Manila Standard, a newspaper of general circulation, which features newsworthy items of information including election surveys.

Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing §5.4 of R.A. No. 9006 (Fair Election Act), which provides:

Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election.

The term “election surveys” is defined in §5.1 of the law as follows:

Election surveys refer to the measurement of opinions and perceptions of the voters as regards a candidate’s popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters’ preference for candidates or publicly discussed issues during the campaign period (hereafter referred to as “Survey”).

To implement §5.4, Resolution 3636, §24(h), dated March 1, 2001, of the COMELEC enjoins ¾

Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election.

Petitioner SWS states that it wishes to conduct an election survey throughout the period of the elections both at the national and local levels and release to the media the results of such survey as well as publish them directly. Petitioner Kamahalan Publishing Corporation, on the other hand, states that it intends to publish election survey results up to the last day of the elections on May 14, 2001.

Petitioners argue that the restriction on the publication of election survey results constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint. They claim that SWS and other pollsters conducted and published the results of surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before the election day without causing confusion among the voters and that there is neither empirical nor historical evidence to support the conclusion that there is an immediate and inevitable danger to the voting process posed by election surveys. They point out that no similar restriction is imposed on politicians from explaining their opinion or on newspapers or broadcast media from writing and publishing articles concerning political issues up to the day of the election. Consequently, they contend that there is no reason for ordinary voters to be denied access to the results of election surveys which are relatively objective.

Respondent Commission on Elections justifies the restrictions in §5.4 of R.A. No. 9006 as necessary to prevent the manipulation and corruption of the electoral process by unscrupulous and erroneous surveys just before the election. It contends that (1) the prohibition on the publication of election survey results during the period proscribed by law bears a rational connection to the objective of the law, i.e., the prevention of the debasement of the electoral process resulting from manipulated surveys, bandwagon effect, and absence of reply; (2) it is narrowly tailored to meet the “evils” sought to be prevented; and (3) the impairment of freedom of expression is minimal, the restriction being limited both in duration, i.e., the last 15 days before the national election and the last 7 days before a local election, and in scope as it does not prohibit election survey results but only require timeliness. Respondent claims that in National Press Club v. COMELEC,[1] a total ban on political advertisements, with candidates being merely allocated broadcast time during the so-called COMELEC space or COMELEC hour, was upheld by this Court. In contrast, according to respondent, it states that the prohibition in §5.4 of R.A. No. 9006 is much more limited.

For reasons hereunder given, we hold that §5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of freedom of speech, expression, and the press.

To be sure, §5.4 lays a prior restraint on freedom of speech, expression, and the press by prohibiting the publication of election survey results affecting candidates within the prescribed periods of fifteen (15) days immediately preceding a national election and seven (7) days before a local election. Because of the preferred status of the constitutional rights of speech, expression, and the press, such a measure is vitiated by a

weighty presumption of invalidity.[2] Indeed, “any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. . . . The Government ‘thus carries a heavy burden of showing justification for the enforcement of such restraint.’”[3] There is thus a reversal of the normal presumption of validity that inheres in every legislation.

Nor may it be argued that because of Art. IX-C, §4 of the Constitution, which gives the COMELEC supervisory power to regulate the enjoyment or utilization of franchise for the operation of media of communication, no presumption of invalidity attaches to a measure like §5.4. For as we have pointed out in sustaining the ban on media political advertisements, the grant of power to the COMELEC under Art. IX-C, §4 is limited to ensuring “equal opportunity, time, space, and the right to reply” as well as uniform and reasonable rates of charges for the use of such media facilities for “public information campaigns and forums among candidates.”[4] This Court stated:

The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in respect of exercises of supervisory or regulatory authority on the part of the Comelec for the purpose of securing equal opportunity among candidates for political office, although such supervision or regulation may result in some limitation of the rights of free speech and free press.[5]

MR. JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present danger for determining the validity of §5.4. Indeed, as has been pointed out in Osmeña v. COMELEC,[6]this test was originally formulated for the criminal law and only later appropriated for free speech cases. Hence, while it may be useful for determining the validity of laws dealing with inciting to sedition or incendiary speech, it may not be adequate for such regulations as the one in question. For such a test is concerned with questions of the gravity and imminence of the danger as basis for curtailing free speech, which is not the case of §5.4 and similar regulations.

Instead, MR. JUSTICE KAPUNAN purports to engage in a form of balancing by “weighing and balancing the circumstances to determine whether public interest [in free, orderly, honest, peaceful and credible elections] is served by the regulation of the free enjoyment of the rights” (page 7). After canvassing the reasons for the prohibition, i.e., to prevent last-minute pressure on voters, the creation of bandwagon effect to favor candidates, misinformation, the “junking” of weak and “losing” candidates by their parties, and the form of election cheating called “dagdag-bawas” and invoking the State’s power to supervise media of information during the election period (pages 11-16), the dissenting opinion simply concludes:

Viewed in the light of the legitimate and significant objectives of Section 5.4, it may be seen that its limiting impact on the rights of free speech and of the press is not unduly repressive or unreasonable. Indeed, it is a mere restriction, not an absolute prohibition, on the publication of election surveys. It is limited in duration; it applies only during the period when the voters are presumably contemplating whom they should elect and when they are most susceptible to such unwarranted persuasion. These surveys may be published thereafter. (Pages 17-18)

The dissent does not, however, show why, on balance, these considerations should outweigh the value of freedom of expression. Instead, reliance is placed on Art. IX-C, §4. As already stated, the purpose of Art. IX-C, §4 is to “ensure equal opportunity, time, and space and the right of reply, including reasonable, equal rates therefor for public information campaigns and forums among candidates.” Hence the validity of the ban on media advertising. It is noteworthy that R.A. No. 9006, §14 has lifted the ban and now allows candidates to advertise their candidacies in print and broadcast media. Indeed, to sustain the ban on the publication of survey results would sanction the censorship of all speaking by candidates in an election on the ground that the usual bombasts and hyperbolic claims made during the campaigns can confuse voters and thus debase the electoral process.

In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing predictably results in sustaining the challenged legislation and leaves freedom of speech, expression, and the press with little protection. For anyone who can bring a plausible justification forward can easily show a rational connection between the statute and a legitimate governmental purpose. In contrast, the balancing of interest undertaken by then Justice Castro in Gonzales v. COMELEC,[7] from which the dissent in this case takes its cue, was a strong one resulting in his conclusion that §50-B of R.A. No. 4880, which limited the period of election campaign and partisan political activity, was an unconstitutional abridgment of freedom of expression.

Nor can the ban on election surveys be justified on the ground that there are other countries ¾ 78, according to the Solicitor General, while the dissent cites 28 ¾ which similarly impose restrictions on the publication of election surveys. At best this survey is inconclusive. It is noteworthy that in the United States no restriction on the publication of election survey results exists. It cannot be argued that this is because the United States is a mature democracy. Neither are there laws imposing an embargo on survey results, even for a limited period, in other countries. As pointed out by petitioners, the United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland, Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are no older nor more mature than the Philippines in political development, do not restrict the publication of election survey results.

What test should then be employed to determine the constitutional validity of §5.4? The United States Supreme Court, through Chief Justice Warren, held in United States v. O’Brien:

[A] government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of speech, expression and press] is no greater than is essential to the furtherance of that interest.[8]

This is so far the most influential test for distinguishing content-based from content-neutral regulations and is said to have “become canonical in the review of such laws.”[9] It is noteworthy that the O’Brientest has been applied by this Court in at least two cases.[10]

Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmental interest is “not unrelated to the suppression of free expression.” Moreover, even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in question.

Our inquiry should accordingly focus on these two considerations as applied to §5.4.

First. Sec. 5.4 fails to meet criterion [3] of the O’Brien test because the causal connection of expression to the asserted governmental interest makes such interest “not unrelated to the suppression of free expression.” By prohibiting the publication of election survey results because of the possibility that such publication might undermine the integrity of the election, §5.4 actually suppresses a whole class of expression, while allowing the expression of opinion concerning the same subject matter by newspaper columnists, radio and TV commentators, armchair theorists, and other opinion makers. In effect, §5.4 shows a bias for a particular subject matter, if not viewpoint, by preferring personal opinion to statistical results. The constitutional guarantee of freedom of expression means that “the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”[11] The inhibition of speech should be upheld only if the expression falls within one of the few unprotected categories dealt with in Chaplinsky v. New Hampshire,[12] thus:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words ¾ those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Nor is there justification for the prior restraint which §5.4 lays on protected speech. In Near v. Minnesota,[13] it was held:

[The] protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. . . . No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government . . . .

Thus, contrary to the claim of the Solicitor General, the prohibition imposed by §5.4 cannot be justified on the ground that it is only for a limited period and is only incidental. The prohibition may be for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a category of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a national election and seven (7) days immediately before a local election.

This sufficiently distinguishes §5.4 from R.A. No. 6646, §11(b), which this Court found to be valid in National Press Club v. COMELEC[14] and Osmeña v. COMELEC.[15] For the ban imposed by R.A. No. 6646, §11(b) is not only authorized by a specific constitutional provision,[16] but it also provided an alternative so that, as this Court pointed out in Osmeña, there was actually no ban but only a substitution of media advertisements by the COMELEC space and COMELEC hour.

Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of speech and the resulting restriction of free expression is only incidental, §5.4 nonetheless fails to meet criterion [4] of the O’Brien test, namely, that the restriction be not greater than is necessary to further the governmental interest. As already stated, §5.4 aims at the prevention of last-minute pressure on voters, the creation of bandwagon effect, “junking” of weak or “losing” candidates, and resort to the form of election cheating called “dagdag-bawas.” Praiseworthy as these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental right of

expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather than speech because of apprehension that such speech creates the danger of such evils. Thus, under the Administrative Code of 1987,[17] the COMELEC is given the power:

To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false election propaganda, after due notice and hearing.

This is surely a less restrictive means than the prohibition contained in §5.4. Pursuant to this power of the COMELEC, it can confiscate bogus survey results calculated to mislead voters. Candidates can have their own surveys conducted. No right of reply can be invoked by others. No principle of equality is involved. It is a free market to which each candidate brings his ideas. As for the purpose of the law to prevent bandwagon effects, it is doubtful whether the Government can deal with this natural-enough tendency of some voters. Some voters want to be identified with the “winners.” Some are susceptible to the herd mentality. Can these be legitimately prohibited by suppressing the publication of survey results which are a form of expression? It has been held that “[mere] legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions.”[18]

To summarize then, we hold that §5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than the suppression of freedom of expression.

On the other hand, the COMELEC contends that under Art. IX-A, §7 of the Constitution, its decisions, orders, or resolutions may be reviewed by this Court only by certiorari. The flaws in this argument is that it assumes that its Resolution 3636, dated March 1, 2001 is a “decision, order, or resolution” within the meaning of Art. IX-A, §7. Indeed, counsel for COMELEC maintains that Resolution 3636 was “rendered” by the Commission. However, the Resolution does not purport to adjudicate the right of any party. It is not an exercise by the COMELEC of its adjudicatory power to settle the claims of parties. To the contrary, Resolution 3636 clearly states that it is promulgated to implement the provisions of R.A. No. 9006. Hence, there is no basis for the COMELEC’s claim that this petition for prohibition is inappropriate. Prohibition has been found appropriate for testing the constitutionality of various election laws, rules, and regulations.[19]

WHEREFORE, the petition for prohibition is GRANTED and §5.4 of R.A. No. 9006 and §24(h) of COMELEC Resolution 3636, dated March 1, 2001, are declared unconstitutional.

SO ORDERED.

Davide, Jr., C.J., Vitug, and Gonzaga-Reyes, JJ., concur.Bellosillo, Pardo, Ynares-Santiago, and Sandoval-Gutierrez, JJ., join the dissent of J. Kapunan.Melo, Puno, and Panganiban, JJ., see concurring opinion.Kapunan, J., see dissenting opinion.Quisumbing, Buena, and De Leon, Jr., JJ., on leave.

SISON vs. COMELEC

FACTS: This is a petition for certiorari which impugns the Resolution that dismissed Joseph Peter S. Sison's earlier petition Sison commenced a suit before the COMELEC seeking to suspend the canvassing of votes and/or proclamation in QC and to declare a failure of elections. This was instituted while the election returns were being canvassed. The action was filed in pursuant to Sec 6 of the Omnibus Election Code on the ground of massive and orchestrated fraud and acts which occurred after the voting and during the preparation of election returns. While the petition was pending before the COMELEC, the City Board of Canvassers proclaimed the winners Subsequently, COMELEC dismissed the petition before it on the ground (1) that the allegations therein were not supported by sufficient evidence, and (2) that the grounds recited were not among the pre-proclamation issues set fourth in Section 17 of Republic Act No. 7166. In his petition for certiorari, Sison argued that the election returns themselves, as well as the minutes of the canvassing committee of the City Board of Canvassers were, by themselves, sufficient evidence to support the petition.

ISSUE: Whether the petitioner has sufficient reasons to petition a failure of elections.

RULING: NO.

Under the pertinent codal provision of the Omnibus Election Code, there are only three (3) instances where a failure of elections may be declared, namely: (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account offorce majeure, violence, terrorism, fraud, or other analogous causes; or (c) after the voting and during the preparation and transmission of the election returns or in the

custody or canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism , fraud, or other analogous causes. We have painstakingly examined petitioner’s petition before the COMELEC but found nothing therein that could support an action for declaration of failure of elections. He never alleged at all that elections were either not held or suspended. Furthermore, petitioner’s claim of failure to elect stood as a bare conclusion bereft of any substantive support to describe just exactly how the failure to elect came about.

Montejo vs. COMELEC

Facts: Petitioner Cerilo Roy Montejo, representative of the first district of Leyte, pleads for the annulment of Section 1 of Resolution no. 2736, redistricting certain municipalities in Leyte, on the ground that it violates the principle of equality of representation.The province of Leyte with the cities of Tacloban and Ormoc is composed of 5 districts. The 3rd district is composed of: Almeria, Biliran, Cabucgayan, Caibiran, Calubian, Culaba, Kawayan, Leyte, Maripipi, Naval, San Isidro, Tabango and Villaba. Biliran, located in the 3rd district of Leyte, was made its subprovince by virtue of Republic Act No. 2141 Section 1 enacted on 1959. Said section spelled out the municipalities comprising the subprovince: Almeria, Biliran, Cabucgayan, Caibiran, Culaba, Kawayan, Maripipi and Naval and all the territories comprised therein.On 1992, the Local Government Code took effect and the subprovince of Biliran became a regular province. (The conversion of Biliran into a regular province was approved by a majority of the votes cast in a plebiscite.) As a consequence of the conversion, eight municipalities of the 3rd district composed the new province of Biliran. A further consequence was to reduce the 3rd district to five municipalities (underlined above) with a total population of 146,067 as per the 1990 census. To remedy the resulting inequality in the distribution of inhabitants, voters and municipalities in the province of Leyte, respondent COMELEC held consultation meetings with the incumbent representatives of the province and other interested parties and on December 29, 1994, it promulgated the assailed resolution where, among others, it transferred the municipality of Capoocan of the 2nd district and the municipality of Palompon of the 4th district to the 3rd district of Leyte.

Issue: Whether the unprecedented exercise by the COMELEC of the legislative power of redistricting and reapportionment is valid or not.

Held: Section 1 of Resolution no. 2736 is annulled and set aside. The deliberations of the members of the Constitutional Commission shows that COMELEC was denied the major power of legislative apportionment as it itself exercised the power. Regarding the first elections after the enactment of the 1987 constitution, it is the Commission who did the reapportionment of the legislative districts and for the subsequent elections, the power was given to the Congress. Also, respondent COMELEC relied on the ordinance appended to the 1987 constitution as the source of its power of redistricting which is traditionally regarded as part of the power to make laws. Said ordinance states that: Section 2: The Commission on Elections is hereby empowered to make minor adjustments to the reapportionment herein made.” Section 3 : Any province that may hereafter be created…The number of Members apportioned to the province out of which such new province was created or where the city, whose population has so increases, is geographically located shall be correspondingly adjusted by the Commission on Elections but such adjustment shall not be made within one hundred and twenty days before the election.Minor adjustments does not involve change in the allocations per district. Examples include error in the correct name of a particular municipality or when a municipality in between which is still in the territory of one assigned district is forgotten. And consistent with the limits of its power to make minor adjustments, section 3 of the Ordinance did not also give the respondent COMELEC any authority to transfer municipalities from one legislative district to another district. The power granted by section 3 to the respondent is to adjust the number of members (not municipalities.)

Notes: Petitioner also prayed for the transfer of the municipality of Tolosa from the 1st district to the 2nd district. It is likewise denied.

----

3. AKLAT-ASOSASYON PARA SA KAUNLARAN NG LIPUNAN AT ADHIKAIN PARA SA TAO, INC., petitioner, vs. COMELEC

Facts:On November 20, 2003, Aklat filed a Petition for declaration of re-qualification as a party-list organization for purposes of the May 2004 elections. It alleged in its petition that it participated in the 2001 elections but was disqualified by the Comelec as it was found not to have complied with the guidelines set by the Court to qualify and participate as such in the party-list elections. Accordingly, Aklat “re-organized itself in order that it will comply with the 8-point guidelines. It alleges to have a total membership of over 4,000 persons who belong to the marginalized and underrepresented groups and has established information and coordination centers throughout the country for the benefit and in representation of indigenous cultural communities, farm and factory workers including fisherfolk and the youth.

Comelec dismissed the petition and denied the motion for reconsideration on three grounds, namely: the petition was filed beyond the deadline set by the Comelec in Resolution No. 6320 for registration of party-list organizations; the petition was not one for re-qualification as Aklat was never a registered party-list organization having failed to meet the eight-point guidelines set by the Court in the Bagong Bayani case; and that its decision not to extend the deadline for registration of party-list organizations is valid, the Comelec being in the best position to make such a determinationThus the instant petition

Issues:Whether COMELEC Resolution No. 6320 which requires the filing of such petitions not later than September 30, 2003, is null and void as it amends R.A. 7941 (petitions for registration as a party-list organization may be filed not later than ninety (90) days before the elections)Whether COMELEC commited grave abuse of discretion in denying AKLAT's petition for requalification

Held:By its wording, R.A. 7941 itself supports the Comelec’s position that the period stated therein refers to the prohibitive period beyond which petitions for registration should no longer be filed nor entertained. Verily, the Comelec has the power to promulgate the necessary rules and regulations to enforce and administer election laws. This power includes the determination, within the parameters fixed by law, of appropriate periods for the accomplishment of certain pre-election acts like filing petitions for registration under the party-list system. This is exactly what the Comelec did when it issued its Resolution No. 6320 declaring September 30, 2003, as the deadline for filing petitions for registration under the party-list system. Neither is there grave abuse of discretion in the Comelec’s denial of Aklat’s petition on the ground that it failed to substantiate its claim that it represents the marginalized and underrepresented sectors of society. The supposed re-organization undertaken by Aklat is plain window-dressing as it has not really changed its character as a business interest of persons in the book publishing industry.

It should finally be emphasized that the findings of fact by the Comelec, or any other administrative agency exercising particular expertise in its field of endeavor, are binding on the Supreme Court.

BRILLANTES v COMELEC

Facts:

Comelec issued resolutions adopting an Automated Elections System including the assailed resolution, Resolution 6712, which provides for the electronic transmission of advanced result of “unofficial” quick count. Petitioners claimed that the resolution would allow the preemption and usurpation of the exclusive power of Congress to canvass the votes for President and Vice-President and would likewise encroach upon the authority of NAMFREL, as the citizens’ accredited arm, to conduct the "unofficial" quick count as provided under pertinent election laws. Comelec contended that the resolution was promulgated in the exercise of its executive and administrative power "to ensure free, orderly, honest, peaceful and credible elections” Comelec added that the issue is beyond judicial determination.

Issue: Whether Comelec's promulgation of Resolution 6712 was valid.

Held:

NO. The Comelec committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing Resolution 6712. The issue squarely fell within the power of judicial review by the Court.

The assailed resolution usurps, under the guise of an "unofficial" tabulation of election results based on a copy of the election returns, the sole and exclusive authority of Congress to canvass the votes for the election of President and Vice-President. Article VII, Section 4 of the Constitution provides in part:

The returns of every election for President and Vice-President duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes.

Such resolution directly infringes the authority of Congress, considering that Section 4 thereof allows the use of the third copy of the Election Returns (ERs) for the positions of

President, Vice-President, Senators and Members of the House of Representatives, intended for the COMELEC, as basis for the encoding and transmission of advanced precinct results, and in the process, canvass the votes for the President and Vice-President, ahead of the canvassing of the same votes by Congress.

The contention of the COMELEC that its tabulation of votes is not prohibited by the Constitution and Rep. Act No. 8436 as such tabulation is "unofficial," is puerile and totally unacceptable. If the COMELEC is proscribed from conducting an official canvass of the votes cast for the President and Vice-President, the COMELEC is, with more reason, prohibited from making an "unofficial" canvass of said votes.

Section 27 of Rep. Act No. 7166, as amended by Rep. Act No. 8173, and reiterated in Section 18 of Rep. Act No. 8436, solely authorize NAMFREL, the duly-accredited citizen’s arm to conduct the “unofficial counting of votes for the national or local elections. The quick count under the guise of an “unofficial” tabulation would not only be preemptive of the authority of congress and NAMFREL, but would also be lacking constitutional and/or statutory basis. Moreover, the assailed COMELEC resolution likewise contravened the constitutional provision that "no money shall be paid out of the treasury except in pursuance of an appropriation made by law. It being “unofficial”, any disbursement of public fund would be contrary to the provisions of the Constitution and Rep. Act No. 9206, which is the 2003 General Appropriations Act.

The Omnibus Election Code in providing the powers and functions of the Commission subjects the same to certain conditions with respect to the adoption of the latest technological and electronic devices, to wit: (1)consideration of the area and available funds (2) notification to all political parties and candidates. The aforementioned conditions were found to have not been substantially met.

Resolution 6712 was null and void.

ELLAN MARIE P. CIPRIANO, a minor represented by her father ROLANDO CIPRIANO, (AND OTHER YOUTH OF THE LAND AFFECTED AND SIMILARLY SITUATED), petitioners, vs. COMMISSION ON ELECTIONS, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, Election Officer LOPE GAYO, JR., 1st District, Pasay City, SANGGUNIANG BARANGAY thru its Chairman JOHNNY SANTIAGO of Barangay 38, Pasay City, GREG PAOLO ALCERA in his capacity as SK Federation President of Pasay City, EDNA TIBAR – a minor assisted by parents, KRISTAL GALE BONGGO – a minor assisted by parents, SK Chairman RUEL TAYAM DECENA of Barangay 142, Pasay City, THE PRESIDENT OF THE PAMBANSANG KATIPUNAN NG MGA SANGGUNIANG ABATAAN, and ALL SK OFFICERS AND YOUTH OF THE LAND SIMILARLY SITUATED and THEIR AGENTS AND REPRESENTATIVES,respondents.

D E C I S I O N

PUNO, J.:

May the Commission on Elections (COMELEC), on its own, in the exercise of its power to enforce and administer election laws, look into the qualifications of a candidate and cancel his certificate of candidacy on the ground that he lacks the qualifications prescribed by law? This is the issue that needs to be resolved in this petition for certiorari filed by Ellan Marie P. Cipriano, the duly elected SK Chairman of Barangay 38, Pasay City, whose certificate of candidacy was cancelled by the COMELEC motu proprio on the ground that she was not a registered voter in the barangay where she intended to run.

On June 7, 2002, petitioner filed with the COMELEC her certificate of candidacy as Chairman of the Sangguniang Kabataan (SK) for the SK elections held on July 15, 2002.[1]

On the date of the elections, July 15, 2002, the COMELEC issued Resolution No. 5363 adopting the recommendation of the Commission’s Law Department to deny due course to or cancel the certificates of candidacy of several candidates for the SK elections, including petitioners. The ruling was based on the findings of the Law Department that petitioner and all the other candidates affected by said resolution were not registered voters in the barangay where they intended to run.[2]

Petitioner, nonetheless, was allowed to vote in the July 15 SK elections and her name was not deleted from the official list of candidates. After the canvassing of votes, petitioner was proclaimed by the Barangay Board of Canvassers the duly elected SK Chairman of Barangay 38, Pasay City.[3] She took her oath of office on August 14, 2002.[4]

On August 19, 2002, petitioner, after learning of Resolution No. 5363, filed with the COMELEC a motion for reconsideration of said resolution. She argued that a certificate of candidacy may only be denied due course or cancelled via an appropriate petition filed by any registered candidate for the same position under Section 78 of the Omnibus Election Code in relation to Sections 5 and 7 of Republic Act (R.A.) No. 6646. According to petitioner, the report of the Election Officer of Pasay City cannot be considered a petition under Section 78 of the Omnibus Election Code, and the COMELEC cannot, by itself, deny due course to or cancel one’s certificate of candidacy. Petitioner also claimed that she was denied due process when her certificate of candidacy was cancelled by the Commission without notice and hearing. Petitioner further argued that the COMELEC en

banc did not have jurisdiction to act on the cancellation of her certificate of candidacy on the first instance because it is the Division of the Commission that has authority to decide election-related cases, including pre-proclamation controversies. Finally, she contended that she may only be removed by a petition for quo warranto after her proclamation as duly-elected SK Chairman.[5]

On October 7, 2002, the COMELEC issued Resolution No. 5781,[6] resolving petitioner’s motion for reconsideration. It cited its previous resolution, Resolution No. 5584, in relation to Resolution No. 4801. The Commission stated in Resolution No. 5584 its policy on proclaimed candidates found to be ineligible for not being registered voters in the place where they were elected. It explained:

A portion of Resolution No. 5584 explained the procedure adopted by the Commission in denying due course the certificate of candidacy of a candidate. It reads:

Under COMELEC Resolution No. 4801, Election Officers were given the duty to: (1) verify whether all candidates for barangay and sangguniang kabataan positions are registered voters of the barangaywhere they filed 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.

Further, Election Officers are mandated to report by registered mail and by rush telegram to the Law Department of this Commission the names of candidates who are not registered voters in the place where they seek to run for public office within three (3) days from the last day for filing of certificates of candidacy. The names of these candidates, however, shall still be included in the certified lists of candidates until the Commission directs otherwise.

By virtue of the said report, the Law Department makes a recommendation to the Commission En Banc, and the latter, by virtue of an En Banc Resolution either gives due course to or denies/cancels the certificates of candidacy of the said candidates.

Verily, the administrative inquiry of the Commission on the eligibility of candidates starts from the time they filed their certificates of candidacy. The candidates, by virtue of the publication of COMELEC Resolution No. 4801 on May 25, 2002 in the Manila Standard and Manila Bulletin are deemed to have constructive notice of the said administrative inquiry. Thus, the Commission, by virtue of its administrative powers, may motu proprio deny/cancel the certificates of candidacy of candidates who are found to be not registered voters in the place where they seek to run for public office.

Any registered candidate for the same office may also file a verified petition to deny due course to or cancel a certificate of candidacy pursuant to Section 69 (nuisance candidate) or Sec. 78 (material misrepresentation in the certificate of candidacy) of the Omnibus Election Code either personally or through a duly authorized representative within five (5) days from the last day for filing of certificate of candidacy directly with the Office of the Provincial Election Supervisor or with the Office of the Election Officer concerned.

Hence, as long as the Election Officer reported the alleged ineligibility in accordance with COMELEC Resolution No. 4801, or the petition to deny due course to or cancel a certificate of candidacy was filed within the reglementary period, the fact that the Resolution of this Commission, denying due course to or canceling the certificate of candidacy of an ineligible candidate, was not promulgated or did not arrive prior to or on the day of the elections is therefore of no moment. The proclamation of an ineligible candidate is not a bar to the exercise of this Commission’s power to implement the said Resolution of the Commission En Banc because it already acquired the jurisdiction to determine the ineligibility of the candidates who filed their certificates of candidacy even before elections by virtue of either the report of the Election Officer or the petition to deny due course to or cancel the certificate of candidacy filed against them.

On the matter of petitions for disqualification, the provisions of COMELEC Resolution No. 4801 are likewise clear: (1) ‘A verified petition to disqualify a candidate on the ground of ineligibility or under Section 68 of the Omnibus Election Code may be filed at anytime before proclamation of the winning candidate by any registered voter or any candidate for the same office,’ (2) ‘All disqualification cases filed on the ground of ineligibility shall survive, although the candidate has already been proclaimed.’

Clearly, by virtue of the above-quoted provisions, the proclamation of a candidate who is found to be disqualified is also not a bar to the Commission’s power to order a proclaimed candidate to cease and desist from taking his oath of office or from assuming the position to which he was elected.

By way of contrast, in case of proclaimed candidates who were found to be ineligible only after they were elected and proclaimed, the provisions of Section 253 of the Omnibus Election Code are clear: The remedy of losing candidates is to file a petition for quo warranto before the metropolitan or municipal trial court. This is logical – The Commission did not acquire jurisdiction over these proclaimed candidates prior to election (i.e., There was no report from the Election Officer regarding their ineligibility

and no petition to deny due course to or cancel certificate of candidacy and/or petition for disqualification was filed against them.) Thus, the Commission has no jurisdiction to annul their proclamation on the ground of ineligibility, except in cases wherein the proclamation is null and void for being based on incomplete canvass.

Thus, the Commission ruled:

Premises considered, the Commission, RESOLVED, as it hereby RESOLVES, to establish a policy as follows:

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.[7]

The Commission further stated:

Considering that there are queries as to the status of the proclamation of disqualified candidates as an offshoot of Resolution No. 5584, the same was amended by virtue of Resolution No. 5666, the dispositive portion of which now reads:

Considering the above-quoted provision, the Commission RESOLVED, as it hereby RESOLVES, to APPROVE the recommendation of Commissioner Sadain to amend Resolution No. 5584 promulgated on 10 August 2002 with modification.

Accordingly, Resolution No. 5584 shall now read as follows:

I

ON PROCLAIMED CANDIDATES FOUND TO BE INELIGIBLE FOR BEING NOT REGISTERED VOTERS IN THE PLACE WHERE THEY WERE ELECTED XXX XXX

(a) xxx(b) xxx(c) xxx(d) For both (a) and (b), in the event that the disqualified candidate is proclaimed the winner despite his disqualification or despite the pending disqualification case filed before his proclamation, but which is subsequently resolved against him, the proclamation of said disqualified candidate is hereby declared void from the beginning, even if the dispositive portion of the resolution disqualifying him or canceling his certificate of candidacy does not provide for such an annulment.[8]

Hence, petitioner filed the instant petition seeking:

a) To declare illegal and unconstitutional the COMELEC Resolution No. 5363 promulgated on 15 July 2002 and COMELEC Resolution No. 5781 promulgated on October 7, 2002 and any other COMELEC actions and resolutions which are intended to summarily oust and remove petitioner as SK Chairman of Barangay 38, Pasay City without any notice, inquiry, election protest, petition forquo warranto, investigation and hearing, and therefore a clear violation of due process of law.

b) To declare illegal the aforesaid COMELEC Resolutions sitting en banc which does not have authority to decide election related case, including pre-proclamation controversies, in the first instance, in consonance to this Honorable Court’s ruling in the cases of Sarmiento vs. COMELEC, G.R. No. 87308, August 29, 1989 and Garvida vs. Sales, G.R. No. 124893, April 18, 1997.

c) To declare unconstitutional Sections 6 and 7 of R.A. 9164 and also to declare the age of membership and its officers of the KK or SK organization from 15 to 21 years old in accordance with Sec. 39 (f) and Sec. 423 (b) and other provisions of R.A. 7160 otherwise known as Local Government Code of 1991.

d) If Sections 6 and 7 of R.A. 9164 are sustained as constitutional to direct all SK Officers and Members who are now more than 18 years old to cease and desist from continuously functioning as such SK Officers and Members and to vacate their respective SK Officers position, as they are no longer members of the Sangguniang Kabataan organization or Katipunan ng Kabataan organization for being over age upon attaining the age of 18 years old.

e) To direct respondents to pay the salary, allowance and other benefits of the petitioner as SK Chairperson of Barangay 38, Pasay City.[9]

Stripped of the non-essentials, the only issue in this case is the validity of Resolution No. 5363 of the COMELEC.

Petitioner argues that she was deprived of due process when the COMELEC issued Resolution No. 5363 canceling her certificate of candidacy. She claims that the resolution was intended to oust her from her position as SK Chairman without any appropriate action and proceedings.

The COMELEC, on the other hand, defends its resolution by invoking its administrative power to enforce and administer election laws. Thus, in the exercise of such power, it maymotu proprio deny or cancel the certificates of candidacy of candidates who are found to be unqualified for the position they are seeking. The Commission further contends that the publication of COMELEC Resolution No. 4801 governing the conduct of the Barangay and SK elections in two newspapers of general circulation is sufficient notice to the candidates regarding the Commission’s administrative inquiry into their certificates of candidacy.

The petition is impressed with merit.

The COMELEC is an institution created by the Constitution to govern the conduct of elections and to ensure that the electoral process is clean, honest, orderly, and peaceful. It is mandated to “enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall.”[10] As an independent Constitutional Commission, it is clothed with the three powers of government - executive or administrative, legislative, and quasi-judicial powers. The administrative powers of the COMELEC, for example, include the power to determine the number and location of polling places, appoint election officials and inspectors, conduct registration of voters, deputize law enforcement agencies and government instrumentalities to ensure free, orderly, honest, peaceful and credible elections; register political parties, organization or coalitions, accredit citizens’ arms of the Commission, prosecute election offenses, and recommend to the President the removal or imposition of any other disciplinary action upon any officer or employee it has deputized for violation or disregard of its directive, order or decision. It also has direct control and supervision over all personnel involved in the conduct of election.[11] Its legislative authority is found in its power to promulgate rules and regulations implementing the provisions of the Omnibus Election Code or other laws which the Commission is required to enforce and administer.[12] The Constitution has also vested it with quasi-judicial powers when it was granted 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.[13]

Aside from the powers vested by the Constitution, the Commission also exercises other powers expressly provided in the Omnibus Election Code, one of which is the authority to deny due course to or to cancel a certificate of candidacy. The exercise of such authority, however, must be in accordance with the conditions set by law.

The COMELEC asserts that it is authorized to motu proprio deny due course to or cancel a certificate of candidacy based on its broad administrative power to enforce and administer all laws and regulations relative to the conduct of elections.

We disagree. The Commission may not, by itself, without the proper proceedings, deny due course to or cancel a certificate of candidacy filed in due form. When a candidate files his certificate of candidacy, the COMELEC has a ministerial duty to receive and acknowledge its receipt. This is provided in Sec. 76 of the Omnibus Election Code, thus:

Sec. 76. Ministerial duty of receiving and acknowledging receipt. - The Commission, provincial election supervisor, election registrar or officer designated by the Commission or the board of election inspectors under the succeeding section shall have the ministerial duty to receive and acknowledge receipt of the certificate of candidacy.

The Court has ruled that the Commission has no discretion to give or not to give due course to petitioner’s certificate of candidacy.[14] The duty of the COMELEC to give due course to certificates of candidacy filed in due form is ministerial in character. While the Commission may look into patent defects in the certificates, it may not go into matters not appearing on their face. The question of eligibility or ineligibility of a candidate is thus beyond the usual and proper cognizance of said body.[15]

Nonetheless, Section 78 of the Omnibus Election Code allows any person to file before the COMELEC a petition to deny due course to or cancel a certificate of candidacy on the ground that any material representation therein is false. It states:

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 the filing of the certificate of candidacy and shall be decided, after notice and hearing, not later than fifteen days before the election.

Under Rule 23 of the COMELEC Rules of Procedure, the petition shall be heard summarily after due notice.

It is therefore clear that the law mandates that the candidate must be notified of the petition against him and he should be given the opportunity to present evidence in his behalf. This is the essence of due process. Due process demands prior notice and hearing. Then after the hearing, it is also necessary that the tribunal shows 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.[16] In a petition to deny due course to or cancel a certificate of candidacy, since the proceedings are required to be summary, the parties may, after due notice, be required to submit their position papers together with affidavits, counter-affidavits, and other documentary evidence in lieu of oral testimony. When there is a need for clarification of certain matters, at the discretion of the Commission en banc or Division, the parties may be allowed to cross-examine the affiants.[17]

Contrary to the submission of the COMELEC, the denial of due course or cancellation of one’s certificate of candidacy is not within the administrative powers of the Commission, but rather calls for the exercise of its quasi-judicial functions. Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs.[18] We have earlier enumerated the scope of the Commission’s administrative functions. On the other hand, where a power rests in judgment or discretion, so that it is of judicial nature or character, but does not involve the exercise of functions of a judge, or is conferred upon an officer other than a judicial officer, it is deemed quasi-judicial.[19]

The determination whether a material representation in the certificate of candidacy is false or not, or the determination whether a candidate is eligible for the position he is seeking involves a determination of fact where both parties must be allowed to adduce evidence in support of their contentions. Because the resolution of such fact may result to a deprivation of one’s right to run for public office, or, as in this case, one’s right to hold public office, it is only proper and fair that the candidate concerned be notified of the proceedings against him and that he be given the opportunity to refute the allegations against him. It should be stressed that it is not sufficient, as the COMELEC claims, that the candidate be notified of the Commission’s inquiry into the veracity of the contents of his certificate of candidacy, but he must also be allowed to present his own evidence to prove that he possesses the qualifications for the office he seeks.

In view of the foregoing discussion, we rule that Resolution No. 5363 and Resolution No. 5781, canceling petitioner’s certificate of candidacy without proper proceedings, are tainted with grave abuse of discretion and therefore void.

We need not rule on the question raised by petitioner as regards the constitutionality of Sections 6 and 7 of Republic Act No. 9164 lowering the age of membership in the SK as it is not the lis mota of this case.

IN VIEW WHEREOF, COMELEC Resolution No. 5363 promulgated on July 15, 2002 and COMELEC Resolution No. 5781 issued on October 7, 2002 are hereby SET ASIDE.

SO ORDERED.

Davide, Jr., C.J., Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, and Chico-Nazario, JJ., concur.Sandoval-Gutierrez, J., on leave.

AKBAYAN YOUTH vs. COMELEC Case DigestAKBAYAN YOUTH vs. COMELEC G.R. No. 147066, March 26, 2001

Facts: Petitoners, representing the youth sector, seek to direct the Comelec to conduct a special registration before the May 14, 2001 General Elections of new voters. According to the petitioners around 4 Million youth failed to register on or before the December 27, 2000 deadline set by the respondent Commission under R.A. 8189. On January 29, 2001 Commissioners Tantangco and Lantion submitted Memorandum No. 2001-027 requesting for a two-day additional registration of new voters, to be set on February 17 and 18, 2001 nationwide. Subsequently, Comelec issued Resolution No. 3584 denying said request, it was the consensus.

Aggrieved by the denial, petitioners filed a petition for certiorari and mandamus, which seeks to nullify respondent Comelec’s resolution and / or to declare Sec. 8 of R.A. 8189 unconstitutional insofar as said provision effectively causes the disenfranchisement of petitioners and others similarly situated.

Issue: Whether or not respondent Comelec committed grave abuse of discretion in issuing Resolution No. 3584 dated Feb. 8, 2001 as it denies petitioners’ right to vote.

Held: The act of registration is an indispensable precondition to the right of suffrage. For registration is part and parcel of the right to vote and an indispensable element in the election process. Section 8 of R.A. 8189, provides that no registration shall be conducted 120 days before a regular election and 90 days before a special election.

In the light of the foregoing the assailed resolution must be upheld. The so-called “stand-by powers” or “residual” powers of the Comelec, as raised by the petitioners is provided under the relevant provisions of Section 29 of R.A. No. 6646 and adopted verbatim in Section 28 of R.A. No. 8436, wherein the commission shall fix other periods and dates for the accomplishment of pre-election acts if it is no longer possible to observe the dates and periods prescribed by law, cannot be applied in this case. The Supreme Court held that Section 8 of R.A. 8189 applies for the purpose of upholding the resolution. Section 28 of R.A. 8436, presupposes the possibility of its being exercised or availed of and not otherwise. In the case at bar the Comelec stated the “operational impossibility” of holding the additional two-day registration, and therefore Section 8 of R.A. 8436 may not apply. Comelec acted within the confines of the applicable law in denying the petitioners’ request.

Aquino vs. COMELEC G.R. No. 120265, September 18, 1995Sunday, January 25, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law

Facts: Petitioner Agapito Aquino filed his certificate of candidacy for the position of Representative for the Second District of Makati City. Private respondents Move Makati, a duly registered political party, and Mateo Bedon, Chairman of LAKAS-NUCD-UMDP of Brgy. Cembo, Makati City, filed a petition to disqualify petitioner on the ground that the latter lacked the residence qualification as a candidate for congressman which, under Sec. 6, Art. VI of the Constitution, should be for a period not less than 1 year immediately preceding the elections.

Issue: Whether or not the petitioner lacked the residence qualification as a candidate for congressman as mandated by Sec. 6, Art. VI of the Constitution

Held: In order that petitioner could qualify as a candidate for Representative of the Second District of Makati City, he must prove that he has established not just residence but domicile of choice.

Petitioner, in his certificate of candidacy for the 1992 elections, indicated not only that he was a resident of San Jose, Concepcion, Tarlac in 1992 but that he was a resident of the same for 52 years immediately preceding that elections. At that time, his certificate indicated that he was also a registered voter of the same district. Hisbirth certificate places Concepcion, Tarlac as the birthplace of his parents. What stands consistently clear and unassailable is that his domicile of origin of record up to the time of filing of his most recent certificate of candidacy for the 1995 elections was Concepcion, Tarlac.

The intention not to establish a permanent home in Makati City is evident in his leasing a condominium unit instead of buying one. While a lease contract may be indicative of petitioner’s intention to reside in Makati City, it does not engender the kind of permanency required to prove abandonment of one’s original domicile.

Petitioner’s assertion that he has transferred his domicile from Tarlac to Makati is a bare assertion which is hardly supported by the facts. To successfully effect a change of domicile, petitioner must prove an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one and definite acts which correspond with the purpose. In the absence of clear and positive proof, the domicile of origin should be deemed to continue.

RELAMPAGOS vs. CUMBA Case DigestRELAMPAGOS vs. CUMBA243 SCRA 502

Facts: In the elections of 11 May 1992, the petitioner Relampagos and private respondent Cumba were candidates for Mayor of Magallanes, Agusan del Norte. The latter was proclaimed the winning candidate, with a margin of twenty-two votes over the former. Unwilling to accept defeat, the petitioner filed an election protest with the RTC which found the petitioner to have won with a margin of six votes over the private respondent and rendered judgment in favor of the petitioner. On 4 July 1994, the private respondent appealed the decision to the COMELEC. The petitioner, on 12 July 1994, filed with the trial court a motion for execution pending appeal, which the trial court granted On 3 August 1994. The private respondent filed a motion for reconsideration of the order of execution which was denied on 5 August 1994.

The private respondent then filed with the respondent COMELEC a petition for certiorari to annul the aforesaid order of the trial court granting the motion for execution pending appeal and the writ of execution. On 9 February 1995, the COMELEC promulgated its resolution granting the petition. Accordingly, petitioner was ordered restored to her

position as Municipal Mayor, pending resolution of the appeal before the Commission. Aggrieved by the resolution, the petitioner filed this special civil action.

Issue: Whether or not the COMELEC has jurisdiction over petitions for certiorari, prohibition, and mandamus in election cases where it has exclusive appellate jurisdiction?

Held: The Court in concluding that the aforesaid last paragraph of Section 50 of B.P. 697 has not been repealed by the Omnibus Election Code, held that the COMELEC has the authority to issue the extraordinary writs for certiorari, prohibition and mandamus only in aid of its appellate jurisdiction.

Hence, the trial court acted with palpable and whimsical abuse of discretion in granting the petitioner’s motion for execution pending appeal and in issuing the writ of execution. Any motion for execution pending appeal must be filed before the period for the perfection of the appeal. Since the motion for execution pending appeal was filed only on 12 July 1994, or after the perfection of the appeal, the trial court could no longer validly act thereon.

COMELEC has jurisdiction, hence, it correctly set aside the challenged order granting the motion for execution pending appeal and writ of execution issued by the trial court.

Santos v. COMELEC, et al.G.R. No. 155618 March 26, 2003

FACTS:Petit ioner Edgar Santos and respondent Pedro Panulaya were both candidates forMayor of the Municipality of Balingoan, Misamis Oriental in the May 14, 2001 elections. TheMunicipal Board of Canvassers proclaimed respondent Panulaya as the duly elected Mayor.Petit ioner f i led an elect ion protest before the lower court. After tr ial and revis ion of the ballots, the trial court found that petitioner garnered 2,181 votes while respondent receivedonly 2,105. Hence, it rendered judgment declaring and proclaiming petitioner as the dulyelected Municipal Mayor, and setting aside as null and void the proclamation of respondentmade by the Municipal Board of Canvassers.Petitioner thereafter filed a motion for execution pending appeal. Meanwhile, beforethe trial court could act on petitioner’s motion, respondent filed with the COMELEC a petitionfor certiorari, assailing the decision of the trial court. Likewise, respondent appealed the trialcourt’s decision to the COMELEC. The COMELEC issued a Writ of Preliminary Injunction, which effectively enjoined thetrial court from acting on petitioner’s motion for execution pending appeal. Subsequently,the COMELEC dismissed petitioner’s petition for certiorari after finding that the trial court didnot commit grave abuse of discret ion in rendering the assai led judgment. Moreover, theCOMELEC held that the remedy from the decision of the court a quo was to file a notice of appeal. Hence, it directed the trial court to dispose of all pending incidents in the electionprotest with dispatch. The tr ial court issued an Order approving the Motion for Execution Pending Appeal and installing petitioner as the duly elected Mayor.Meanwhile, respondent f i led with the COMELEC a motion for reconsideration of thedismissal of his petition in SPR No. 20-2002. After five days, or on August 26, 2002, he filed asupplemental petition in SPR No. 20-2002. Barely two days later, on August 28, 2002, andwhile his motion for reconsideration and supplemental petit ion in SPR No. 20-2002 werepending, respondent filed another petition with the COMELEC, docketed as SPR No. 37-2002. The petition contained the same prayer as that in the supplemental petition filed in SPR 20-2002. Acting on respondent’s motion, the COMELEC issued the assailed Order directing theparties to maintain the status quo ante and enjoining petitioner from assuming the functionsof Mayor.

ISSUE:whether or not the COMELEC committed grave abuse of discret ion in giv ing duecourse, instead of dismissing outr ight, the petit ion in SPR No. 37-2002 despite the c lear showing that respondent was guilty of forum-shopping, and in setting aside the trial court’sorder granting execution pending appeal

HELD:

Yes. I t is at once apparent from the records, as shown above, that respondent wasgui lty of forum-shopping when he inst ituted SPR No. 37-2002 with the COMELEC. Forum- shopping is an act of a party against whom an adverse judgment or order has been renderedin one forum of seeking and possibly gett ing a favorable opinion in another forum, otherthan by appeal or special c iv i l act ion for cert iorar i . I t may also be the inst itut ion of two ormore actions or proceedings grounded on the same cause on the supposition that one or the

other court would make a favorable disposition. For it to exist, there should be (a) identity of part ies, or at least such part ies as would represent the same interest in both act ions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts;and (c) identity of the two preceding part iculars such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the actionunder consideration. Considering that respondent was indubitably guilty of forum-shoppingwhen he f i led SPR No. 37-2002, his petit ion should have been dismissed outr ight by the COMELEC. Willful and deliberate forum-shopping is a

ground for summary dismissal of thecase, and constitutes direct contempt of court.COMELEC’s act of sett ing aside the tr ial court’s order granting execution pendingappeal is premised on the argument that shortness of the remaining term of off ice and posting a bond are not good reasons. This is untenable. A valid exercise of the discretion toallow execution pending appeal requires that it should be based upon good reasons to bestated in a special order. The following constitute good reasons and a combination of two ormore of them will suffice to grant execution pending appeal: (1) public interest involved orwill of the electorate; (2) the shortness of the remaining portion of the term of the contestedoffice; and (3) the length of time that the election contest has been pending. The decis ion of the tr ial court in elect ion protest was rendered on Apri l 2, 2002, or after almost one year of trial and revision of the questioned ballots. It found petitioner as thec a n d i d a t e w i t h t h e p l u r a l i t y o f v o t e s . R e s p o n d e n t a p p e a l e d t h e s a i d d e c i s i o n t o t h e COMELEC. In the meantime, the three-year term of the Office of the Mayor continued to run. The will of the electorate, as determined by the trial court in the election protest, had to berespected and given meaning. The Municipality of Balingoan, Misamis Oriental, needed thes e r v i c e s o f a m a y o r e v e n w h i l e t h e e l e c t i o n p r o t e s t w a s p e n d i n g , a n d i t h a d t o b e t h e candidate judicially determined to have been chosen by the people.

[G.R. No. 157957. September 18, 2003]CHARITO NAVAROSA, petitioner, vs. COMMISSION ON ELECTIONS, HONORABLE DEAN

R. TELAN, as Presiding Judge, Regional Trial Court, Branch 9, Kalibo, Aklan and ROGER M. ESTO, respondents.

D E C I S I O NCARPIO, J.:

The CaseThis is a petition for certiorari of the Commission on Elections (“COMELEC”) En

Banc Resolution dated 15 April 2003 denying petitioner Charito Navarosa’s motion for reconsideration of the COMELEC Second Division Resolution[1] dated 28 November 2002. The COMELEC Second Division Resolution ordered the execution pending appeal of the Decision[2] of the Regional Trial Court, Branch 9, Kalibo, Aklan, proclaiming respondent Roger M. Esto winner in the mayoralty race in the 14 May 2001 elections.

The FactsPetitioner Charito Navarosa (“petitioner Navarosa”) and respondent Roger M.

Esto (“respondent Esto”) were candidates for mayor of Libacao, Aklan in the 14 May 2001 elections. On 17 May 2001, the COMELEC Municipal Board of Canvassers of Libacao proclaimed petitioner Navarosa as the duly elected mayor, with a winning margin of three (3) votes over respondent Esto.[3]

Claiming that irregularities marred the canvassing of ballots in several precincts, respondent Esto filed an election protest docketed as Election Case No. 129 (“election protest”) in the Regional Trial Court, Branch 9, Kalibo, Aklan (“trial court”). Petitioner Navarosa, who also claimed that canvassing irregularities prejudiced her, filed a counter-protest in the same case.

On 4 March 2002, after revision of the contested ballots, the trial court rendered judgment in favor of respondent Esto. The trial court found that respondent Esto obtained 4,595 votes over petitioner Navarosa’s 4,553 votes. Thus, the trial court declared respondent Esto the elected mayor of Libacao by a margin of 42 votes and annulled the earlier proclamation of petitioner Navarosa. The trial court also ordered petitioner Navarosa to pay respondent Esto actual damages and attorney’s fees. The dispositive portion of the decision provides:WHEREFORE, judgment is hereby rendered:

a) Declaring the Proclamation of xxx protestee [Navarosa] as the duly elected Mayor of Libacao, Aklan and the Certificate of Canvass of Votes and the Proclamation of the Winning Candidates for Municipal Offices, dated May 17, 2001, as null and void;

b) Declaring the protestant, Roger M. Esto, as the duly elected Municipal Mayor of Libacao, Aklan in the May 14, 2001 election;

c) Ordering the protestee [Navarosa] to pay the sum of P14,215.00 as actual and compensatory damages, and the amount of P50,000.00 as and for attorney’s fees, plus the cost of suit.[4]

Petitioner Navarosa appealed the trial court’s ruling to the COMELEC (EAC Case No. A-9-2002). Respondent Esto, on the other hand, filed with the trial court a motion for execution of the judgment pending petitioner Navarosa’s appeal. Petitioner Navarosa opposed respondent Esto’s motion. In the alternative, petitioner Navarosa offered to file a supersedeas bond to stay execution pending appeal, should the trial court grant respondent Esto’s motion.

In its Order of 22 March 2002 (“Order”), the trial court granted respondent Esto’s motion subject to the filing of a P300,000 bond. However, in the same order, the trial court also granted petitioner Navarosa’s prayer to stay the execution pending appeal, upon filing a P600,000 supersedeas bond. The Order reads:The Supreme Court has explicitly recognized and given approval to execution of judgments pending appeal in election cases, filed under existing election laws. In these cases, the immediate execution was made in accordance with Sec. 2, Rule 39 of the Rules of Court (Ramas et al. vs. COMELEC, et al., G.R. No. 130831, 2/10/98). There is, therefore, no question now that execution pending appeal may be granted.

xxx[T]he grant of execution would give substance and meaning to the people’s mandate specially since the court has established protestant’s right to the office (Lindo vs. COMELEC cited in the Ramas case); more than 10 months or nearly 1/3 of the 3-year term for Mayor had already lapsed (Gutierrez vs. COMELEC, G.R. 126298, 3-25-97; Tobon

Uy vs. COMELEC also cited in the Ramas case). These are two “good reasons” to justify execution of the decision pending appeal.[P]rotestee [Navarosa] however, prays in the alternative, that should execution pending appeal be granted, the same be stayed upon his [sic] filing of supersedeas bond to be fixed by the court under Sec. 3, Rule 39, 1997 Rules of Civil Procedure.Unlike Sec. 2, Rule 39 where the grant of execution pending appeal is conditioned upon the presence of the “good and valid reason” for its grant, Sec. 3, Rule 39 does not provide for any condition precedent before the discretionary execution of Rule 2 may be stayed. All that it requires is that a sufficient supersedeas bond must be approved by the court conditioned upon the performance of the judgment allowed to be executed in case it shall be finally sustained in whole or in part. Under this section, therefore, the filing of a supersedeas bond sufficient in amount is enough to stay the execution granted under Sec. 2.Moreover, the margin of 42 votes in the instant case is not so big, overwhelming or insurmountable as to be practically beyond or improbable of being overturned by the higher courts. xxxWHEREFORE, in view of the foregoing[,] the court finds that the protestant, Roger M. Esto is entitled to the execution of the decision dated March 4, 2002, pending appeal, upon the filing of a bond which covers the salary and emoluments of the office of the Municipal Mayor of Libacao, Aklan and or the payment of all damages in the amount of P300,000.00, Philippine Currency, in cash, surety bond or real property with assessed value in said amount to be filed on or before April 3, 2002, furnishing copy thereof to the protestee or his duly authorized representative.The protestee, Charito Navarosa, considering that the margin is not so insurmountable as to be beyond reversal by the higher court[,] is hereby allowed to stay the execution of the decision of March 4, 2002 pending appeal, by filing a supersedeas bond in double the amount posted by the protestant, on or before April 3, 2002, furnishing copy thereof the protestant or his duly authorized representative.[5]

Both petitioner Navarosa and respondent Esto sought reconsideration of the Order but the trial court denied their motions on 5 April 2002.

Respondent Esto filed a petition for certiorari with the COMELEC against the Order. In her memorandum to the petition, petitioner Navarosa raised for the first time the issue of the trial court’s failure to acquire jurisdiction over the election protest because of respondent Esto’s failure to pay the COMELEC filing fee.

The Ruling of the COMELECIn its Resolution dated 28 November 2002 (“Resolution”), the COMELEC Second

Division affirmed the trial court’s Order granting execution pending appeal and nullified the stay of the execution. The Second Division also found that respondent Esto duly paid the COMELEC filing fee. The Resolution reads:Going now to the main issue at hand, did respondent judge gravely abuse his discretion and/or exceed his jurisdiction when he stayed the immediate execution of his decision on a finding of “good reasons” he made in his questioned Order of March 22, 2002 by allowing in the same Order the filing of a supersedeas bond double the amount posted by petitioner?The answer is yes.It is [for] the Commission on Elections, in the exercise of its appellate jurisdiction to issue the extraordinary writs of certiorari, prohibition, mandamus and injunction over all contests involving elective municipal officials decided by the trial courts of general jurisdiction elevated on appeal, and not the trial court, that may order the stay or restrain the immediate execution of the decision pending appeal granted by the trial court of general jurisdiction in an election contest. Except when the trial court reversed itself in a motion for reconsideration of its order granting immediate execution, it cannot later on stay or restrain the execution thereof in the guise of allowing the losing party to file a supersedeas bond. The issue before the trial court where a motion for execution pending appeal is filed is to determine whether or not there are “good reasons” to justify the immediate execution pending appeal. The issue is not whether x x x there are good reasons to stay the immediate execution of the decision pending appeal.The trial court, by granting the immediate execution of the March 4, 2002 decision, recognized that the “good reasons” cited in the questioned Order constitute superior circumstances demanding urgency that will outweigh the injuries or damages to the adverse party if the decision is reversed. By declaring that petitioner Esto is the duly elected Mayor of Libacao, Aklan, the trial court gave substance and meaning to the people’s mandate as expressed in the ballot, especially since it has established petitioner Esto’s right to the office. The trial court cannot indirectly reverse its substantial finding of “good reasons” by a rule of procedure which does not strictly apply in election protest cases when it allowed the filing of a supersedeas bond under Section 3, Rule 39 of the 1997 Rules of Civil Procedure. To allow the application of the said procedural relief would defeat the right of the winning candidate in an election protest to hold the public office by virtue of the people’s mandate expressed through the ballot and to perform the functions of the said public office.

xxxIt is interesting to note that instead of expounding on the propriety of the supersedeas bond to stay the execution of a judgment in an election protest case, private respondent raised for the first time in his [sic] memorandum the issue of lack of jurisdiction of the trial court over the instant election protest for the alleged failure of petitioner Esto to pay the filing fee of P300.00 required under Section 9, Rule 35 of the COMELEC Rules of Procedure. However, the records of Election Case No. 129 of the RTC of Kalibo, Aklan, Branch 9 showed otherwise. The Official Receipts issued by the RTC of Kalibo, Aklan shows [sic] that petitioners paid a total of P515.00 filing fees in Election Case No. 129 by specifically stating therein “[F]iling Fee in Election Case No. 129”. At the time of filing the election protest, petitioner specified that the payment made was to cover the COMELEC filing fee for the election protest. Upon assessment, petitioner paid not only the amount of P300.00 required under Section 9, Rule 35 of the COMELEC Rules of Procedure, but a

total sum of P515.00 as filing fees. While it is true that the issue of jurisdiction may be raised anytime, even on appeal, the same is of no moment now.[6]

Petitioner Navarosa sought reconsideration of this ruling but the COMELEC En Banc denied her motion on 15 April 2003.

Hence, this petition.On 10 June 2003, the Court required the parties to maintain the status

quo pending resolution of this petition.The Issues

Petitioner Navarosa raises the following issues:1. WHETHER PUBLIC RESPONDENT COMELEC EN BANC ACTED WITH

GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT AFFIRMED THE 28 NOVEMBER 2002 RESOLUTION OF THE COMELEC SECOND DIVISION FOR FAILURE TO RULE ON THE BASIC ISSUE OF LACK OF JURISDICTION OF THE COURT A QUO OVER RESPONDENT ESTO’S ELECTION PROTEST FOR NON-PAYMENT OF THE MANDATORY COMELEC FILING FEE OFP300.00.

2. WHETHER PUBLIC RESPONDENT COMELEC EN BANC ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT AFFIRMED THE 28 NOVEMBER 2002 RESOLUTION OF THE COMELEC SECOND DIVISION DESPITE THE FACT THAT THERE WERE NO “GOOD REASONS” TO EXECUTE THE 4 MARCH 2002 DECISION OF THE TRIAL COURT.

3. WHETHER PUBLIC RESPONDENT COMELEC EN BANC ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT AFFIRMED THE 28 NOVEMBER 2002 RESOLUTION OF THE COMELEC SECOND DIVISION WHEN THE LATTER RULED THAT THE TRIAL COURT HAD NO POWER TO ORDER THE STAY OF EXECUTION OF ITS 4 MARCH 2002 DECISION PENDING APPEAL IN AN ELECTION CONTEST, BECAUSE SECTION 3, RULE 39 OF THE REVISED RULES OF COURT DOES NOT APPLY TO ELECTION CASES.[7]

The Ruling of the CourtThe petition has no merit.

The Trial Court Acquired Jurisdiction OverElection Case No. 129

Petitioner Navarosa contends that the trial court did not acquire jurisdiction over the election protest because of respondent Esto’s failure to pay the COMELEC filing fee under Rule 35, Section 9 of the COMELEC Rules of Procedure (“Section 9”). Procedurally, petitioner Navarosa should not have raised this jurisdictional issue in this petition which involves only the ancillary issue of whether to allow execution of the trial court’s decision pending appeal. Nevertheless, as the question of the trial court’s jurisdiction also affects its authority to issue ancillary orders such as its Order of 22 March 2002 subject of this petition, we have resolved to pass upon this issue.

Section 9 provides:Filing Fee. — No protest, counter-protest, or protest-in-intervention shall be given due

course without the payment of a filing fee in the amount of three hundred pesos (P300.00) for each interest.Each interest shall further pay the legal research fee as required by law.Respondent Esto must pay this filing fee before the trial court can exercise its jurisdiction over the election protest.[8] The COMELEC filing fee, to distinguish from the other mandatory fees under Rule 141 of the Rules of Court, as amended, is credited to the Court’s General Fund.[9]

Petitioner Navarosa claims that although the receipts issued by the trial court show that respondent Esto paid P515 as “filing” and other fees, only P100 was credited to the General Fund. The rest of what respondent Esto paid accrued to the Judiciary Development Fund (P400), the Legal Research Fund (P10) and the Victim’s Compensation Fund (P5).[10] Consequently, respondent Esto paid only P100 of the P300 COMELEC filing fee, for which reason the trial court did not acquire jurisdiction over the election protest. Petitioner Navarosa also claimed that the Second Division did not rule on this issue.

Contrary to petitioner Navarosa’s claim, the COMELEC Second Division did rule on the issue of respondent Esto’s non-payment of the full amount of the COMELEC filing fee. The Second Division held that the P515 fees respondent Esto paid already covered the P300 COMELEC filing fee.

However, based on the trial court’s Election Fees Form for Election Case No. 129,[11] of the total amount of P515 respondent Esto paid, only P100 was indeed credited to the General Fund. Consequently, respondent Esto only paid P100 of the required P300 COMELEC filing fee.

In an earlier ruling,[12] the Court held that an election protest is not dismissible if the protestant, relying on the trial court’s assessment, pays only a portion[13] of the COMELEC filing fee. However, in Miranda v. Castillo,[14] the Court, reiterating Loyola v. Commission on Elections,[15] held that it would no longer tolerate “any mistake in the payment of the full amount of filing fees for election cases filed after the promulgation of the Loyola decision on March 25, 1997.” Nevertheless, our rulings in Miranda and Loyola are inapplicable to the present case.

At no time did petitioner Navarosa ever raise the issue of respondent Esto’s incomplete payment of the COMELEC filing fee during the full-blown trial of the election protest. Petitioner Navarosa actively participated in the proceedings below by filing her Answer, presenting her evidence, and later, seeking a stay of execution by filing a supersedeas bond. Not only this, she even invoked the trial court’s jurisdiction by filing a counter-protest against respondent Esto in which she must have prayed for affirmative reliefs.[16]

Petitioner Navarosa raised the issue of incomplete payment of the COMELEC filing fee only in her memorandum to respondent Esto’s petition before the COMELEC Second Division. Petitioner Navarosa’s conduct estops her from claiming, at such late stage, that the trial court did not after all acquire jurisdiction over the election protest. Although a party cannot waive jurisdictional issues and may raise them at any stage of the proceedings, estoppel may bar a party from raising such issues. [17] In Pantranco North Express v. Court of Appeals,[18] this Court applied the doctrine of estoppel against a party who also belatedly raised the issue of insufficient payment of filing fees to question the court’s exercise of jurisdiction over the case. We held:The petitioner raised the issue regarding jurisdiction for the first time in its Brief filed with public respondent [Court of Appeals] x x x After vigorously participating in all stages of the case before the trial court and even invoking the trial court’s authority in order to ask for affirmative relief, the petitioner is effectively barred by estoppel from challenging the trial court’s jurisdiction.

Indeed, in Miranda and Loyola, as in every other case[19] where we sustained the dismissal of the election protest for lack or incomplete payment of the COMELEC filing fee, the protestee timely raised the non-payment in a motion to dismiss. Before any revision of the contested ballots, the protestee filed a petition for certiorari questioning the trial court’s jurisdiction before the COMELEC and eventually before this Court. In contrast, in the instant case, petitioner Navarosa did not raise the incomplete payment of the COMELEC filing fee in a motion to dismiss. Consequently, the trial court proceeded with the revision of the contested ballots and subsequently rendered judgment on the election protest. Petitioner Navarosa raised for the first time the incomplete payment of the COMELEC filing fee in her memorandum before the COMELEC Second Division.

Thus, estoppel has set in precluding petitioner Navarosa from questioning the incomplete payment of the COMELEC filing fee, and in effect assailing the exercise of jurisdiction by the trial court over the election protest. The law vests in the trial court jurisdiction over election protests although the exercise of such jurisdiction requires the payment of docket and filing fees by the party invoking the trial court’s jurisdiction.[20] Estoppel now prevents petitioner Navarosa from questioning the trial court’s exercise of such jurisdiction, which the law and not any act of the parties has conferred on the trial court. At this stage, the remedy for respondent Esto’s incomplete payment is for him to pay the P200 deficiency in the COMELEC filing fee.[21] It is highly unjust to the electorate of Libacao, Aklan, after the trial court has completed revision of the contested ballots, to dismiss the election protest and forever foreclose the determination of the true winner of the election for a mere P200 deficiency in the COMELEC filing fee. We repeat that:

[E]lection contests involve public interest, and technicalities and procedural barriers should not be allowed to stand if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials. And also settled is the rule that laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections. In an election case the court has an imperative duty to ascertain by all means within its command who is the real candidate elected by the electorate.[22]

Good Reasons Exist to Grant ExecutionPending Appeal in this Case

To grant execution pending appeal in election protest cases, the following requisites must concur: (1) there must be a motion by the prevailing party with notice to the adverse party; (2) there must be “good reasons” for the execution pending appeal; and (3) the order granting execution pending appeal must state the “good reasons.”[23] Petitioner Navarosa concedes respondent Esto’s compliance with the first and third requisites. What she contests is the trial court’s finding that there are “good reasons” to order discretionary execution of its decision.

In Ramas   v.   Commission  on   Elections,[24] the Court, after reviewing pertinent jurisprudence, summarized the circumstances qualifying as “good reasons” justifying execution pending appeal, thus:In a nutshell, the following constitute “good reasons,” and a combination of two or more of them will suffice to grant execution pending appeal: (1) the public interest involved or the will of the electorate; (2) the shortness of the remaining portion of the term of the contested office; and (3) the length of time that the election contest has been pending.

The trial court in the present case, relying on cases[25] reviewed in Ramas, invoked two “good reasons” to justify its order allowing execution pending appeal. First, the order will “give substance and meaning to the people’s mandate.” Second, “more than 10 months or nearly 1/3 of the 3-year term” of the office in question had already lapsed. The COMELEC found these “good reasons” sufficient. Being consistent with Ramas, we find no grave abuse of discretion in the ruling of the trial court or of the COMELEC.

Petitioner Navarosa’s invocation of Camlian   v.   Commission   on   Elections[26] is unavailing. In Camlian, the COMELEC ruled that circumstances such as “public interest in the true outcome of the elections[;] that the protestee illegally manufactured votes[;] and that the appeal was interposed for delay” do not suffice to justify execution pending appeal. On appeal, we sustained the COMELEC, noting that “not every invocation of public interest with x x x reference to the will of the electorate can be appreciated as a good reason especially so if the same appears to be self-serving and has not been clearly established.” The Court further pointed out that the protestant failed to substantiate his claim that the appeal is dilatory as it in fact assails the trial court’s ruling. These circumstances are absent in the present case, precluding Camlian’s application.

Section 3 of Rule 39 Not ApplicableTo Election Protest Cases

Unlike the Election Code of 1971,[27] which expressly provided for execution pending appeal of trial courts’ rulings in election protests, the present election laws are silent on such remedy. Nevertheless, Section 2, Rule 39 (“Section 2”) of the Rules of Court (now 1997 Rules of Civil Procedure) applies in suppletory character to election cases, thus allowing execution pending appeal in the discretion of the court. As explained in Ramas:

The Omnibus Election Code of the Philippines (B.P. Blg. 881) and the other election laws do not specifically provide for execution pending appeal of judgment in election cases, unlike the Election Code of 1971 whose Section 218 made express reference to the Rules of Court on execution pending appeal; xxxThe failure of the extant election laws to reproduce Section 218 of the Election Code of 1971 does not mean that execution of judgment pending appeal is no longer available in election cases. In election contests involving elective municipal officials, which are cognizable by courts of general jurisdiction; and those involving elective barangay officials, which are cognizable by courts of limited jurisdiction, execution of judgment pending appeal under Section 2 of Rule 39 of the Rules of Court are permissible pursuant to Rule 143 of the Rules of Court, which is now Section 4, Rule 1 of the 1997 Rules of Civil Procedure. This Section 4 provides:SEC 4. In what cases not applicable.- These Rules shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient.As to election cases involving regional, provincial, and city officials, which fall within the exclusive original jurisdiction of the COMELEC, Section 3 of Article IX-C of the Constitution vests the COMELEC with the authority to promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. Additionally, Section 52(c), Article VII of the Omnibus Election Code empowers the COMELEC to promulgate rules and regulations implementing the provisions of the Code or other laws which it is required to enforce and administer. Accordingly, the COMELEC promulgated the COMELEC Rules of Procedure. Section 1 of Rule 41 thereof expressly provides that “[i]n the absence of any applicable provision in [said] Rules, the pertinent provisions of the Rules of Court in the Philippines shall be applicable by analogy or in a suppletory character and effect.”[28]

In the earlier case of Gahol  v.  Riodique,[29] the Court explained the legislative intent behind the enactment of Section 218 of the Election Code of 1971. In Gahol, the Court gave an additional justification for allowing execution pending appeal of decisions of trial courts, thus:

xxx [T]his innovative provision is the product of the bad experience of the people under the previous election laws. Public policy underlies it. xxx [S]omething had to be done to strike the death blow at the “pernicious grab-the-proclamation-prolong-the-protest” technique often, if not invariably, resorted to by unscrupulous politicians who would render nugatory the people’s verdict against them and persist in continuing in an office they very well know they have no legitimate right to hold. xxx [T]o uphold the theory of Protestee that the very nature of the matter in dispute in election contests, the holding of a public office and the performance of its functions, makes gravely doubtful the propriety of an execution pending appeal, what with the possible placing of the corresponding powers of government in the hands of one who might ultimately turn out not to be really entitled to the position, is to negate the unquestionable and patent intent of the legislature to give as much recognition to the worth of a trial judge’s decision as that which is initially ascribed by the law to the proclamation by the board of canvassers. Why should the proclamation by the board of canvassers suffice as basis of the right to assume office, subject to future contingencies attendant to a protest, and not the decision of a court of justice? Indeed, when it is considered that the board of canvassers is composed of persons who are less technically prepared to make an accurate appreciation of the ballots, apart from their being more apt to yield extraneous considerations, that the board must act summarily, practically [racing] against time, while, on the other hand, the judge has the benefit of all the evidence the parties can offer and of admittedly better technical preparation and background, apart from his being allowed ample time for conscientious study and mature deliberation before rendering judgment, one cannot but perceive the wisdom of allowing the immediate execution of decisions in election cases adverse to the protestees, notwithstanding the perfection and pendency of appeals therefrom, as long as there are, in the sound discretion of the court, good reasons therefor. (Emphasis supplied)

Thus, a primordial public interest — to obviate a hollow victory for the duly elected candidate as determined by the trial court — lies behind the present rule giving suppletory application to Section 2. Only a more compelling contrary policy consideration can prevent the suppletory application of Section 2. In insisting that the simple expedient of posting a supersedeas bond can stay execution pending appeal, petitioner Navarosa neither claims nor offers a more compelling contrary policy consideration. Instead, she merely contends that Section 3 of Rule 39 (“Section 3”) applies also in a suppletory character because its “Siamese twin” [30] provision, Section 2, is already being so applied. Such simplistic reasoning both ignores and negates the public interest underlying Section 2’s application. We cannot countenance such argument.

Furthermore, a supersedeas bond under Section 3 cannot fully protect the interests of the prevailing party in election protest cases. Section 3 provides:Stay of discretionary execution. — Discretionary execution issued under the preceding section may be stayed upon approval by the proper court of a sufficient bond, filed by the party against whom it is directed, conditioned upon the performance of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part. The bond thus given may be proceeded against on motion with notice to the surety. (Emphasis supplied)

A supersedeas bond secures the performance of the judgment or order appealed from in case of its affirmation.[31] Section 3 finds application in ordinary civil actions where the interest of the prevailing party is capable of pecuniary estimation, and consequently, of protection, through the filing of a supersedeas bond. Thus, the penultimate sentence of Section 3 states: “[T]he bond thus given may be proceeded against on motion with notice to the surety.” Consequently, it finds no application in election protest cases where judgments invariably include orders which are not capable

of pecuniary estimation such as the right to hold office and perform its functions. As well observed by the COMELEC Second Division in its Resolution in the instant case:The supersedeas bond, as used under Section 3, Rule 39 of the 1997 Rules of Civil Procedure, refers to a bond, either in cash or a surety bond, filed by the losing party in an ordinary civil action to secure the performance or to satisfy the judgment appealed from in case it is affirmed on appeal in favor of the prevailing party. A supersedeas bond is filed purposely for the performance of the judgment appealed from in case it is affirmed by the appellate court. On the assumption that the filing of the supersedeas bond applies in an election protest case, the practical considerations of the matter dictate that it cannot secure the performance of or satisfy the judgment rendered in an election protest which basically involves the right to hold a public office and the performance of its functions in accordance with the mandate of the law, except insofar as the monetary award provided in the special order. By allowing the filing of a supersedeas bond to stay the execution of a judgment in an election protest declaring the protestant, as in the case of petitioner herein, as the winning candidate who is entitled to the right to hold and perform the functions of the contested public office, would render the judgment in an election protest illusory. xxx While the supersedeas bond ensures that the appealed decision if affirmed is satisfied, in an election protest case, such bond, in the event the appealed case is affirmed and the execution pending appeal is proven to be meritorious, cannot adequately answer for the deprivation of a duly elected candidate of his post, and his constituents of their leader of choice, such deprivation being unquantifiable .[32] (Emphasis added)

As applied to the present case, the supersedeas bond petitioner Navarosa filed can only answer for that portion of the trial court’s ruling ordering her to pay to respondent Esto actual damages, attorney’s fees and the cost of the suit. It cannot secure execution of that portion proclaiming respondent Esto duly elected mayor of Libacao, Aklan by popular will of the electorate and authorizing him to assume the office. This anomalous situation defeats the very purpose for the filing of the supersedeas bond in the first place.

In sum, the Court holds that the COMELEC did not commit grave abuse of discretion in ordering execution pending appeal of the trial court’s decision. Grave abuse of discretion implies capricious and whimsical exercise of judgment amounting to lack of jurisdiction, or arbitrary and despotic exercise of power because of passion or personal hostility. The grave abuse of discretion must be so patent and gross as to amount to an evasion or refusal to perform a duty enjoined by law. [33] This does not obtain in the present case.

WHEREFORE, we DISMISS the instant petition. The Resolution dated 28 November 2002 of the COMELEC Second Division, and the Resolution dated 15 April 2003 of the COMELEC En Banc, are AFFIRMED. The status quo order dated 10 June 2003 is LIFTED and the COMELEC is directed to cause the implementation of the Decision of the Regional Trial Court of Kalibo, Aklan, Branch 9, in Election Case No. 129, without prejudice to any judgment the COMELEC may render in EAC Case No. A-9-2002. Moreover, respondent Roger M. Esto shall pay immediately the P200 deficiency in the COMELEC filing fee.

SO ORDERED.Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-

Santiago, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna,and Tinga, JJ., concur.

ELENITA I. BALAJONDA, petitioner,  vs. COMMISSION ON ELECTIONS (FIRST DIVISION) and MARICEL S. FRANCISCO, respondents.

D E C I S I O NTINGA, J.:

Whether or not the Commission on Elections has power to order the immediate execution of its judgment or final order involving a disputed barangay chairmanship is at the heart of the present Petition for Certiorari[1] under Rule 65 of the 1997 Rules of Civil Procedure.

On 16 July 2002, petitioner Elenita I. Balajonda (Balajonda) was proclaimed as the duly elected Barangay Chairman (Punong Barangay), having won the office in the barangay elections held the previous day.[2] Her margin of victory over private respondent Maricel Francisco (Francisco) was four-hundred twenty (420) votes.[3] Francisco duly filed a petition for election protest, within ten (10) days from the date of proclamation, lodged with the Metropolitan Trial Court (MeTC) of Quezon City, Branch 35.[4]

In answer to the protest, Balajonda alleged that Francisco’s petition stated no cause of action and that the allegations of electoral fraud and irregularities were “baseless, conjectural, flimsy, frivolous, preposterous and mere figments of the latter’s wild imagination.” She also laid stress on the fact that although the grounds relied upon by Francisco were violations of election laws, not a single person had been prosecuted for violation of the same.[5]

After the issues were joined, the MeTC ordered the revision of ballots in sixty-nine (69) ballot boxes, and eventually, the ballots in thirty-nine (39) precincts were revised.[6] After trial, MeTC dismissed the protest with its finding that Balajonda still led Francisco by four hundred eighteen (418) votes. [7] The dispositive part of its Decision reads as follows:WHEREFORE, the Protest filed by Maricel Susano Francisco is hereby DENIED. The proclamation of Elenita I. Balajonda as the duly proclaimed Barangay Captain of Barangay Sta. Monica, Quezon City during the 15 July 2002 Barangay Election is hereby upheld.[8]

Francisco appealed the MeTC Decision to the Commission on Elections (COMELEC). In a Resolution[9] promulgated on 2 February 2004, the COMELEC First Division reversed the MeTC, finding that Francisco won over Balajonda by one hundred eleven (111) votes. The COMELEC First Division thus annulled the proclamation of 0Balajonda, and declared in her stead Francisco as the duly elected Barangay Chairman. The dispositive portion of the Resolution reads:

WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the Appeal. The decision of the Metropolitan Trial Court of Quezon City, Branch 35 is hereby SET ASIDE. The proclamation of ELENITA BALAJONDA as Punong Barangay of said Barangay is ANNULLED. Protestant MARICEL FRANCISCO is hereby declared the duly elected Punong Barangay of Barangay Sta. Monica, Novaliches City.ACCORDINGLY, the Commission (FIRST DIVISION) hereby ORDERS:1. Protestee ELENITA “Baby” BALAJONDA to VACATE the post of Punong Barangay of Sta. Monica, Novaliches City in favor of MARICEL SUSANO FRANCISCO and to CEASE and DESIST from performing the functions attached to said office.No pronouncement as to costs.SO ORDERED.[10]

Balajonda seasonably filed a Motion for Reconsideration[11] of the COMELEC First Division’s Resolution.[12] In the meantime, Francisco filed a Motion for Execution[13] dated 5 February 2004, praying for a writ of execution in accordance with Section 2(a) of Rule 39 of the Revised Rules of Court [Sec. 2(a), Rule 39], which allows discretionary execution of judgment upon good reasons to be stated in the order.[14]

Balajonda duly opposed[15] the Motion for Execution, arguing in the main that under Sec. 2(a), Rule 39, only the judgment or final order of a trial court may be the subject of discretionary execution pending appeal. However, in its Order[16] dated 26 November 2004, the COMELEC First Division after due hearing granted the motion and directed the issuance of a Writ of Execution,[17] ordering Balajonda to cease and desist from discharging her functions as Barangay Chairman and relinquish said office to Francisco. The Orderstates in part:WHEREFORE, the Motion is hereby GRANTED. In order to implement the Resolution of the Commission (First Division) in the above entitled case, the Clerk of Commission (Director IV, ECAD) is hereby DIRECTED to issue a WRIT OF EXECUTION ordering ELENITA I. BALAJONDA to CEASE and DESIST from discharging the powers and duties of Barangay Captain of Sta. Monica, Novaliches, Quezon City and to relinquish the same to and in favor of MARICEL S. FRANCISCO who was declared duly elected to the post in the Resolution pending final disposition of the Motion for Reconsideration filed by Protestee in the above-entitled case. Protestant however is ordered to post a bond in the amount of FIFTY THOUSAND PESOS (P50,000.00) which shall answer for whatever damage protestee will sustain by reason of this execution if the final resolution of the protest would decide that the protestant is not entitled thereto. This Order is immediately executory.SO ORDERED. [18]

This Order is the subject of the present petition.In support of her thesis that the COMELEC First Division committed grave abuse

of discretion in granting execution pending appeal, Balajonda in essence submits the following grounds, thus: (1) that the COMELEC may order the immediate execution only of the decision of the trial court but not its own decision; (2) that the order of execution which the COMELEC First Division issued is not founded on good reasons as it is a mere pro forma reproduction of the reasons enumerated in Ramas v. COMELEC;[19] and (3) the COMELEC exhibited manifest partiality and bias in favor of Francisco when it transgressed its own rule.[20] Balajonda invoked only the first ground in her opposition to the Motion For Execution, but definitely not the second and third. In any event, all the grounds are bereft of merit.

Early last year, the Court, through Mr. Justice Antonio T. Carpio in Batul v. Bayron,[21] affirmed a similar order of the COMELEC First Division directing the immediate execution of its own judgment. Despite the silence of the COMELEC Rules of Procedure as to the procedure of the issuance of a writ of execution pending appeal, there is no reason to dispute the COMELEC’s authority to do so, considering that the suppletory application of the Rules of Court is expressly authorized by Section 1, Rule 41 of the COMELEC Rules of Procedure which provides that absent any applicable provisions therein the pertinent provisions of the Rules of Court shall be applicable by analogy or in a suppletory character and effect.

Batul also clearly shows that the judgments which may be executed pending appeal need not be only those rendered by the trial court, but by the COMELEC as well. It stated, thus:It is true that present election laws are silent on the remedy of execution pending appeal in election contests. However, neither Ramas nor Santos declared that such remedy is exclusive to election contests involving elective barangay and municipal officials as argued by Batul. Section 2 allowing execution pending appeal in the discretion of the court applies in a suppletory manner to election cases, including those involving city and provincial officials.[22]

Batul is different from this case in that in Batul the decision subject of the order of immediate execution was rendered by the poll body in the exercise of its original jurisdiction[23]while the decision in this case was promulgated in the exercise of its appellate jurisdiction. Still, there is no reason to dispose of this petition in a manner different from Batul. The public policy underlying the suppletory application of Sec. 2(a), Rule 39 is to obviate a hollow victory for the duly elected candidate as determined by either the courts or the COMELEC.[24] Towards that end, we have consistently employed liberal construction of procedural rules in election cases to the end that the will of the people in the choice of public officers may not be defeated by mere technical objections.[25] Balajonda’s argument is anchored on a simplistic, literalist reading of Sec. 2(a), Rule 39 that barely makes sense, especially in the light of the COMELEC’s specialized and expansive role in relation to election cases.

Anent the second ground, we find that the COMELEC First Division committed no grave abuse of discretion in ruling that:In the instant case, the protestant cited the good reasons enunciated in Ramas v. Comelec (286 SCRA 189), to wit: (1) the public interest involved or the will of the electorate; (2) the shortness of the remaining period, and (3) the length of time that the election contest has been pending.

After evaluating the case, we rule that the reasons cited are indeed obtaining. Public interest is best served if the herein Protestant who actually received the highest number of votes should be immediately be installed. It is likewise true that the remaining period or the unexpired term is too short that to further prolong the tenure of the protestee is a virtual denial of the right of the protestant, the duly elected barangay captain, to assume office.Considering that there are good reasons for the issuance of an Order of Execution, to wit: dictates of public policy and the shortness of the remaining period, we have to grant the Motion.[26]

All that Balajonda musters in the main to debunk the poll body’s ruling is that it is just a pro forma reproduction of the reasons enunciated in pertinent jurisprudence for the grant of execution pending appeal.[27] The argument suffers from a discernible fallacy. The reasons relied upon by the COMELEC First Division are either self-evident or borne out by the law.

With respect to the first reason, it cannot be disputed with success that public interest demands that the winner on the basis of a full and incisive recount and new appreciation of votes should be installed in office without delay. Indeed, “[I]t is neither fair nor just to keep in office for an uncertain period one whose right is under suspicion.”[28]

Balajonda’s corollary argument that the public interest involved or the will of the electorate is fully determined only after the election contest becomes final [29] would, if sustained, negate altogether the purpose of allowing executions pending appeal in the first place. Indeed, the argument begs the question. In this regard, Balajonda’s filing of a Motion for Reconsideration of the decision likewise did not divest the COMELEC First Division of jurisdiction to rule on the Motion For Execution. Once more, Batul[30] instructs us that the filing of a motion for reconsideration of the COMELEC First Division’s resolution with the COMELEC en banc does not suspend the execution thereof.

As regards the second reason, it is provided in Republic Act No. 9164 [31] that barangay officials elected in the barangay elections of July 2002 shall serve up to November 2005. Thus when the poll body’s First Division promulgated the challenged Order on 26 November 2004, directing immediate execution of its Decision pending final disposition of Balajonda’s motion for reconsideration by the COMELEC en banc, the expiry of the term of the disputed position was a scant twelve (12) months away.

At this point, the Court cannot take judicial notice of what Balajonda calls “the consensus to extend the terms of barangay captains” purportedly soon to be enacted into law by Congress.[32] The Court lacks the powers of prognostication to ascertain whether there is such a “consensus” and, more so, whether it would actually ripen to reality in the future.

In a bid to ascribe partiality and bias in favor of Francisco to the COMELEC itself, Balajonda alleges that the poll body failed to observe its own Rules of Procedure[33] directing the Clerk of Court, within twenty-four (24) hours following the filing of a motion for reconsideration, to notify the Presiding Commissioner and therefore to set the motion for hearing, and the Presiding Commissioner in turn thereafter to certify the case to the Commission en banc.[34] However, the record does not bear out Balajonda’s charge. The case was not forwarded to the COMELEC en banc right away precisely because of the pendency of Francisco’s motion for immediate execution and Balajonda’s motions. According to the COMELEC Records, Balajonda filed with the First Division on 03 March 2004 a Manifestation with Motion for Leave to Xerox Contested Ballots,[35] and on 03 March 2004 aManifestation with Motion for Partial Reconsideration.[36]

It is noteworthy that the COMELEC First Division did not make use of the third reason invoked by Francisco which refers to the length of time that the election contest has been pending.[37] Consequently, it is pointless to address Balajonda’s accusation that the delay in the disposition of the election protest is attributable to Francisco.[38]

WHEREFORE, the Petition is hereby DISMISSED for failure of petitioner Elenita I. Balajonda to show that respondent COMELEC acted with grave abuse of discretion in promulgating the challenged Order dated 24 November 2004. Costs against petitioner.

SO ORDERED.Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-

Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario, and Garcia, JJ., concur.

GUEVARA VS. COMMISSION ON ELECTIONS (104 SCRA 268)FACTS:The facts which gave rise to the present contemptuous incident are: The Commission on Elections, on May 4, 1957, after proper negotiations, awarded to the National Shipyards & Steel Corporation (NASSCO), the Acme Steel Mfg. Co., Inc. (ACME), and the Asiatic Steel Mfg. Co., Inc. (ASIATIC), the contracts to manufacture and supply the Commission 12,000, 11,000 and 11,000 ballot boxes at P17.64, P14.00 and P17.00 each, respectively. On May 8, 1957, both the NASSCO and the ASIATIC signed with the Commission on Elections the corresponding contracts thereon. On May 13, 1957, the Commission cancelled the award to the ACME for failure of the latter to sign the contract within the designated time and awarded to the NASSCO and the ASIATIC, one-half each, the 11,000 ballot boxes originally alloted to the ACME. The corresponding contracts thereon were signed on May 16, 1957.

Then followed a series of petitions filed by the ACME for the reconsideration of the resolution of the Commission of May 13, 1957. The first of these petitions was filed on May 14, 1957 which, after hearing, was denied by the Commission in its resolution of May 16, 1957. The second petition was filed on May 16, 1957 and was denied on May 17, 1957. The third petition was filed on May 20, 1957, and because of the seriousness of the grounds alleged therein for the annulment of its previous resolutions, the Commission

resolved to conduct a formal investigation on the matter ordering the NASSCO and the ASIATIC to file their respective answers. Thereafter, after these corporations had filed their answers, the Commission held a formal hearing thereon on May 24, 1957. On May 28, 1957, the ACME filed a memorandum on the points adduced during the hearing, and on June 4, 1957, the Commission issued its resolution denying the third motion for reconsideration. The article signed by petitioner was published in the June 2, 1957 issue of the Sunday Times, a newspaper of nationwide circulation.

ISSUE:The question to be determined is whether the Commission on Elections has the power and jurisdiction to conduct contempt proceedings against petitioner with a view to imposing upon him the necessary disciplinary penalty in connection with the publication of an article in the Sunday Times issue of June 2, 1957 which, according to the charge, tended to interfere with and influence said Commission in the adjudication of a controversy then pending determination and to degrade and undermine the function of the Commission and its members in the administration of all laws relative to the conduct of elections.HELD:It would therefore appear that the Commission on Elections not only has the duty to enforce and administer all laws relative to the conduct of elections but the power to try, hear and decide any controversy that may be submitted to it in connection with the elections. And as an incident of this power, it may also punish for contempt in those cases provided for in Rule 64 of the Rules of Court under the same procedure and with the same penalties provided therein. In this sense, the Commission, although it cannot be classified as a court of justice within the meaning of the Constitution (Section 13, Article VIII), for it is merely an independent administrative body (The Nacionalista Party vs. Vera, 85 Phil., 126; 47 Off. Gaz. 2375), may however exercise quasi-judicial functions in so far as controversies that by express provision of the law come under its jurisdiction. As to what questions may come within this category, neither the Constitution nor the Revised Election Code specifies. The former merely provides that it shall come under its jurisdiction, saving those involving the right to vote, all administrative questions affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and other election officials, while the latter is silent as to what questions may be brought before it for determination. But it is clear that, to come under its jurisdiction, the questions should be controversial in nature and must refer to the enforcement and administration of all laws relative to the conduct of election. The difficulty lies in drawing the demarcation line between a duty which inherently is administrative in character and a function which is justiciable and which would therefore call for judicial action by the Commission. But this much depends upon the factors that may intervene when a controversy should arise.RULING OF COURT:Wherefore, petition is granted. Respondent Commission is hereby enjoined from proceeding with the contempt case set forth in its resolution of June 20, 1957, without pronouncement as to costs.The preliminary injunction issued by this Court is made permanent.GALIDO vs. COMELEC Case DigestGALIDO vs. COMELEC 193 SCRA 78

Facts: Petitioner Galido and private respondent Galeon were candidates during the January 1988 local elections for mayor of Garcia-Hernandez, Bohol. Petitioner was proclaimed the duly-elected Mayor. Private respondent filed an election protest before the RTC. After hearing, the said court upheld the proclamation of petitioner. Private respondent appealed the RTC decision to the COMELEC. Its First Division reversed the RTC decision and declared private respondent the duly-elected mayor. After the COMELEC en banc denied the petitioner’s motion for reconsideration and affirmed the decision of its First Division. The COMELEC held that the fifteen (15) ballots in the same precinct containing the initial “C” after the name “Galido” were marked ballots and, therefore, invalid.

Undaunted by his previous failed actions the petitioner filed the present petition for certiorari and injunction before the Supreme Court and succeeded in getting a temporary restraining order. In his comment to the petition, private respondent moved for dismissal, citing Article IX (C), Section 2(2), paragraph 2 of the 1987 Constitution, that “Final decisions, orders or rulings of the COMELEC in election contests involving elective municipal offices are final and executory, and not appealable.

Issue: Whether or not a COMELEC decision may, if it sets aside the trial court’s decision involving marked ballots, be brought to the Supreme Court by a petition for certiorari by the aggrieved party?

Held: The fact that decisions, final orders or rulings of the COMELEC in contests involving elective municipal and barangay offices are final, executory and not appealable, does not preclude a recourse to this Court by way of a special civil action of certiorari. Under Article IX (A), Section 7 of the Constitution, which petitioner cites, it is stated, “Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each (Constitutional) Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt thereof.” We resolve this issue in favor of the petitioner. “We do not, however, believe that the respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in rendering the questioned decision. The COMELEC has the inherent power to decide an election contest on physical evidence, equity, law and justice, and apply established jurisprudence, in support of its findings and conclusions; and that the extent to which such precedents

apply rests on its discretion, the exercise of which should not be controlled unless such discretion has been abused to the prejudice of either party. ACCORDINGLY, the petition is DIMISSSED.

Ambil v COMELEC

FACTS: Petitioner and private respondent were candidates for the position of Governor, Eastern Samar during the May 11, 1998 elections. The Provincial Board of Canvassers proclaimed petitioner as the duly elected Governor. Private respondent filed an election protest with the COMELEC, which was assigned to the First Division.Commissioner X prepared and signed a proposed resolution in the case. Commissioner Y dissented, while Commissioner Z wanted to see both positions first before giving her decision. On 2/15/00, Commissioner X retired and was replaced. On 2/24/00, petitioner and respondent received a purported resolution in favor of private respondent promulgated on 2/14/00 and signed by Commissioners X, Y, and Z. The First Division later declared that the parties should ignore the resolution since it was not yet promulgated. The Division later set a date for promulgation of a resolution of the case, and said that the aggrieved party could then challenge it through a Motion for Reconsideration before the Commission en banc or through a certiorari case before the SC. The petitioner filed this case to annul the order for the promulgation of the resolution and to direct the First Division to deliberate anew on the case.

HELD: The SC dismissed the case for prematurity. It ruled that it has no power to review via certiorari, an interlocutory order or even a final resolution of a Division of the Commission on Elections. “The instant case does not fall under any of the recognized exceptions to the rule in certiorari cases dispensing with a motion for reconsideration prior to the filing of a petition. In truth, the exceptions do not apply to election cases where a motion for reconsideration is mandatory by Constitutional fiat to elevate the case to the Comelec en banc, whose final decision is what is reviewable via certiorari before the Supreme Court.The SC declared the resolution signed by Commissioner X as void for various reasons. First, one who is no longer a member of the Commission at the time the final decision or resolution is promulgated cannot validly take part in that resolution or decision. Second, the Clerk of the 1st Division denied the release or promulgation of the resolution on 2/14/00 resolution. Third, the 1st Division even later said that the parties should ignore the resolution since it was not yet promulgated. Lastly, Commissioner Z could not have affixed her signature on the resolution, since on the same date an order was issued where she said that she still wanted to see both positions before making her decision.

MAYOR JUN RASCAL CAWASA, COUNCILORS MAASIRAL DAMPA, H. ACKIL MAMANTUC, MOMOLAWAN MACALI, ANDAR TALI, ALLAN SANAYON, and AMIN SANGARAN,  petitioners, vs. THE COMMISSION ON ELECTIONS and ABDULMALIK M. MANAMPARAN,respondents.D E C I S I O NCARPIO, J.:The CaseBefore us is a Petition for Certiorari with prayer for the issuance of a writ of preliminary injunction and a temporary restraining order under Rule 64 of the 1997 Rules of Civil Procedure[1] assailing the Resolution of the Commission on Elections (“Comelec” for brevity) en banc[2] in SPC No. 01-276 dated October 24, 2001, the dispositive portion of which reads:“WHEREFORE, premises considered, the instant petition is hereby GRANTED. The results of special elections held on 30 May 2001 covering Precincts Nos. 2A, 2A1/2A2 in Barangay Bangko, Precinct No. 3A in Barangay Cabasaran and clustered Precinct No. 10A/10A1 in Barangay Liangan are hereby ANNULLED.Accordingly, the proclamation of all winning candidates insofar as the results in the four (4) contested precincts affect the standing of candidates is hereby SET ASIDE until the choice of the people is finally determined through another special election to be authorized, conducted and supervised by this Commission as soon as possible unless restrained.Finally, the Law Department is hereby directed to investigate the election irregularities that transpired in the Municipality of Nunungan, Lanao del Norte involving the Office of the Election Officer and thereafter, file election offense case/s should there be finding of probable cause and other appropriate cases if warranted under the circumstances.SO ORDERED.”[3]

The FactsDuring the May 14, 2001 elections, petitioner Jun Rascal Cawasa (“petitioner Cawasa” for brevity) and private respondent Adbulmalik M. Manamparan (“private respondent Manamparan” for brevity) were among the candidates for mayor in the Municipality of Nunungan, Lanao del Norte (“Nunungan” for brevity). Out of the forty (40) precincts in Nunungan, only thirty-six (36) functioned, as there was a failure of election in the remaining four (4) precincts. The following were the precincts, barangays, polling places and number of registered voters where there was a failure of election:PRECINCT NO. BARANGAY POLLING PLACE REG. VOTERS 2A Bangko Bangko Prim School 2002A1/2A2 Bangko -do- 2543A Cabasaran Cabasaran Prim. Sch. 15510A/10A1 Liangan Liangan Prim. Sch. 236 Total 845After canvassing the election returns from the 36 precincts, the Municipal Board of Canvassers of Nunungan deferred the proclamation of all winning candidates due to the failure of the said 4 precincts to function. Special elections were set on May 30, 2001 considering that the number of registered voters in the remaining four precincts would

affect the election results. The Comelec promulgated Resolution No. 4360 on May 21, 2001 authorizing the conduct of special elections in the affected areas, including barangays Bangko, Cabasaran and Liangan in Nunungan, the pertinent portion of which states:“VII. Memorandum of Commissioner Mehol K. Sadain dated 19 May 2001.REGION MUNICIPALITY/PROVINCERegion XII Nunu(n)gan, Lanao del Norte Barangays: 1. Bangco 2. Cabasaran 3. LianganREASONS : disagreement of venue of election, tension of BEIs, forcible taking of the ballot boxes and other election paraphernalia.Scheduled date: May 30, 2001 x x xIn view of the foregoing the Commission RESOLVED, as it hereby RESOLVED, as follows:1. To schedule the special elections in the foregoing areas on May 26 and 30, 2001 as herein specified;x x xLet the Executive Director, Deputy Executive Directors for Operations and all the working Committees implement this resolution.SO ORDERED.”[4]

As scheduled, the special elections covering the 4 precincts were conducted on May 30, 2001. The special elections for Precincts Nos. 2A, 2A1/2A2 of Barangay Bangko were conducted in the Municipality of Sultan Naga Dimaporo, Lanao del Norte. The special elections for Precinct No. 3A of Barangay Cabasara and Precinct Nos. 10A/10A1 of Barangay Liangan were conducted in the Municipality of Sapad, Lanao del Norte.The Municipal Board of Canvassers of Nunungan canvassed the election returns of the 4 precincts on May 31, 2001. After the canvassing of the election returns, the Municipal Board of Canvassers proclaimed the winning candidates on the basis of the earlier 36 election returns of the May 14, 2001 regular elections and the 4 election returns of the 4 precincts subject of the special elections.The May 14, 2001 regular elections and the May 30, 2001 special elections show the following results with respect to the position of mayor: Sub-Total of Votes Sub-Total of votes Grand Obtained May 14, 2001 Obtained May 30, Total Regular Elections 2001 Special ElectionsPrivate Respondent Manamparan 1,197 570 1,767Petitioner Cawasa 1,283 187 1,470Margin . . . . . 297As shown above, during the May 14, 2001 regular elections, the lead of petitioner Cawasa was eighty six (86). After the May 30, 2001 special elections, private respondent Manamparan overcame the margin with a lead of 297 votes.Petitioner Cawasa was proclaimed mayor of Nunungan and his co-petitioners Maasiral Dampa, H. Ackil Mamantuc, Momolawan Macali, Andar Tali, Allan Sanayon and Amin Sangaran were also proclaimed as councilors of Nunungan. On June 4, 2001, private respondent Manamparan filed an appeal and petition to annul the proclamation of petitioner Cawasa docketed as SPC No. 01-252. The appeal/petition was dismissed by the Comelec Second Division on September 26, 2001.In the meantime, on June 8, 2001, private respondent Manamparan filed a petition for “Annulment of Election Results during the May 30, 2001 Special Elections in Precincts No. 2A, 2A1/2A2, 3A, and 10A/10A1 of Nunungan, Lanao Del Norte, and Annulment of Canvass and Proclamation with Prayer for Issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction” docketed as SPC Case No. 01-276. Impleaded as respondents were petitioner Cawasa and the Municipal Board of Canvassers composed of Mario Allan Ballesta,[5] Nedalyn S. Sebial[6] and Iluminada O. Pegalan.[7]

As mentioned at the outset, on October 24, 2001, the Comelec en banc promulgated a resolution annulling the results of the special elections of the 4 precincts (Precinct Nos. 2A, 2A1/2A2, 3A, 10A/10A1) held on May 30, 2001 conducted in the municipalities of Sultan Naga Dimaporo and Sapad. The Comelec en banc also annulled the proclamation of all winning candidates insofar as the results in the 4 contested precincts affect the standing of candidates. The Comelec RulingIn granting the petition, the Comelec held that “the special elections in the 4 contested precincts were not genuinely held and resulted in failure to elect on account of fraud. ” The Comelec’s ruling is summarized as follows:First. The Comelec clarified that the Comelec en banc can take cognizance of the petition for annulment of election results in accordance with Section 4 of RA 7166[8], otherwise known as the “Synchronized Elections Law of 1991.”  It explained that while the proclamation of a candidate has the effect of terminating pre-proclamation issues, a proclamation that is a result of an illegal act is void and cannot be ratified by such proclamation and subsequent assumption of office. The Comelec declared that there is no forum-shopping considering that SPC 01-252 pending before the Second Division of the Comelec is a pre-proclamation controversy,[9] while SPC 01-276 pending before the Comelec en banc is a case for annulment of election results.Second.  The Comelec found that the special elections were not held in the designated polling places in Nunungan but were transferred to the municipalities of Sapad and Sultan Naga Dimaporo without any authority from the Comelec. According to the Comelec, the Election Officer, who happened to be the chairman of the Municipal Board of Canvassers, caused the transfer of the polling places without asking permission from the Comelec. The transfer was likewise in violation of the due process requirements found in Section 153 of the Omnibus Election Code. Moreover, it ruled that the unauthorized transfer of a polling place is also punishable as an election offense under

Section 261(z) (17) of the Same Code. We quote the pertinent portion of the Comelec ruling thus:“The transfer of polling places cannot be done without due process. This is the explicit rule of Section 153 of the Omnibus Election Code, x x x:x x x x x x x x xIn the instant case, the Election Officer, who happened to be the Chairman of the respondent Board, also caused the transfer of the polling places without asking the permission of this Commission and in violation of the due process rule, thereby, making the afore-quoted Section 153 inutile.Considering these unwarranted acts of the official of this Commission, the sanctity of the special elections therefore is suspect. Nothing in the records could show that notice was given to the political candidates and to the registered voters affected by the special elections of the said transfer of polling places. Who therefore voted on the assailed special elections given these circumstances? This issue has never been squarely addressed by the respondents.We take judicial notice of the distance of the venues of voting which are more or less 25 kilometers away from Nunungan, far from being accessible to the voters given the time and material constraints. The panorama of what is supposed to be a free and honest exercise of democracy is indeed rendered myopic by fraud perpetrated by no other than the COMELEC officials concerned.”[10]

Third. The Comelec found that the Municipal Board of Canvassers, headed by Mario Allan Ballesta, preposterously feigned ignorance of the fact that during the said special elections, members of the Philippine Army 26th Infantry Battalion served as election inspectors without authority from the Comelec.Hence, the instant petition.The IssuesPetitioners argue that the COMELEC en banc Resolution was issued without jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction for the following reasons:"1. The proclamation of the six (6) petitioners Maasiral Dampa, H. Ackil Mamantuc, Momolawan Macali, Andar Tali, Allan Sanayon, and Amin Sangaran were annulled and set aside in violation of due process of law. They were not impleaded as respondents in the petition to annul the election. They were not notified of the proceedings. x x x.2. The transfer of the venue of the special elections at Sultan Naga Dimaporo and Sapad and the appointment of military personnel as members of the Board of election Inspectors of the four (4) precincts were agreed upon by the private respondent and the municipal candidates and their respective political parties.3. The election officer in the exercise of his discretion has authority to transfer the venue of the special elections in view of the agreement of the political parties and municipal candidates on the transfer of the venue of the special elections. x x x.4. There is substantial compliance with the provisions of Sec. 153 of the Omnibus Election Code. The political parties and municipal candidates of the municipality Nunungan were notified and in fact agreed to the transfer of venue of the special elections.5. The COMELEC en banc promulgated the October 24, 2001 resolution without requiring its election officer of Nunungan, the provincial election supervisor of Lanao del Norte, and Regional Election Director of Region XII to explain why the special elections of the four (4) precincts were transferred to the municipalities of Sultan Naga Dimaporo and Sapad. The petitioner Mayor Jun Rascal Cawasa prayed that the case be set for trial and hearing in order that the election officer of Nunungan be required to testify and explain the circumstances of the special elections. The COMELEC en banc did not act on the motion. It promulgated the resolution of October 24, 2001 without investigating the circumstances why the election officer transferred the venue of the special elections to the municipalities of Sultan Naga Dimaporo and Sapad. No hearing was conducted by the COMELEC en banc.”[11]

Simply put, the issues raised boil down to whether or not : (1) the transfer of the polling places to the adjacent municipalities is legal; (2) the appointment of military personnel as members of the board of election inspectors is legal; and (3) the petitioners were accorded due process prior to the promulgation of the assailed resolution in SPC No. 01-276.The Court’s RulingThe petition is bereft of merit.First Issue:   Legality of the Transfer of Polling Places and Appointment of Military Personnel as Members of the Board of Election InspectorsThere is no dispute that the venue of the special elections was transferred to the adjacent municipalities of Sultan Naga Dimaporo and Sapad in lieu of the regular polling places located in barangays Bangko, Cabasaran and Liangan. There is likewise no dispute that military personnel were appointed as members of the Board of Election Inspectors (“BEI” for brevity) in the 4 precincts. Petitioners and private respondent Manamparan agree that the 4 precincts covered by the special elections with a total of 845 registered voters will affect the result of the elections.Petitioners insist on the validity of the conduct of the special elections claiming that the political parties and the municipal candidates were notified and in fact agreed on the transfer of venue and the appointment of military personnel as members of the BEI. They contend that there is substantial compliance with the provisions of Section 153 of the Omnibus Election Code considering that the election officer as the representative of the Comelec reported the matter to the Provincial Election Supervisor of Lanao del Norte and the transfer was not disapproved by the Comelec. Petitioners claim that an “election officer has authority to transfer the polling places even four days before the scheduled election” citingBalindong vs. Comelec[12] and Alonto vs. Comelec.[13]

Petitioners fail to persuade. Sections 152, 153 and 154 of the Omnibus Election Code shed light on this matter, to wit:SEC. 152. Polling Place. – A polling place is the building or place where the board of election inspectors conducts its proceedings and where the voters shall cast their votes.SEC. 153. Designation of polling places. – The location of polling places designated in the preceding regular election shall continue with such changes as the Commission may find necessary, after notice to registered political parties and candidates in the political unit affected, if any, and hearing: provided, That no location shall be changed within forty-five days before a regular election and thirty days before a special election or a referendum or plebiscite, except in case it is destroyed or it cannot be used.SEC. 154. Requirements for polling places. –Each polling place shall be, as far as practicable, a ground floor and shall be of sufficient size to admit and comfortably accommodate forty voters at one time outside the guard rail for the board of election inspectors. The polling place shall be located within the territory of the precinct as centrally as possible with respect to the residence of the voters therein and whenever possible, such location shall be along a public road. No designation of polling places shall be changed except upon written petition of the majority of the voters of the precinct or agreement of all the political parties or by resolution of the Commission upon prior notice and hearing.A public having the requirements prescribed in the preceding paragraph shall be preferred as polling place.[14]

The transfer was made not only in blatant disregard of Comelec Resolution No. 4360 issued on May 21, 2001 specifying the polling places but also Sections 153 and 154 of the Election Code. As clearly provided by the law, the location of polling places shall be the same as that of the preceding regular election. However, changes may be initiated by written petition of the majority of the voters of the precinct or agreement of all the political parties or by resolution of the Comelec after notice and hearing. But ultimately, it is the Comelec which determines whether a change is necessary after notice and hearing.The Comelec has unequivocally stated that “nothing in the records showed that notice was given to the political candidates and registered voters affected by the transfer.” Private respondent Manamparan has categorically denied petitioners’ claim that all the political parties and municipal candidates agreed to the transfer of venue. The Court discerns no substantiation of petitioners’ claim regarding the agreement to transfer. There is then no cogent reason for us to disturb the findings of the Comelec on this matter. Indeed, the factual findings of the Comelec supported by substantial evidence shall be final and non-reviewable.[15] Thus, it has been held that findings of fact of the Comelec based on its own assessments and duly supported by evidence, are conclusive upon this Court, more so, in the absence of a substantiated attack on the validity of the same.[16] Moreover, there is no question that the transfer of venue was made within the prohibited period of thirty days before the special election.Reliance on Balindong vs. Comelec[17] and Alonto vs. Comelec[18] is misplaced. Alonto involved an entirely different factual scenario from the instant case. In said case, the Court upheld the validity of the transfer of the counting and tallying of the votes after the closing of the polls from the precincts to the PC camps. The Court held that the transfer was dictated by necessity and authorized by the Comelec directly or by its provincial representative. The Court explained that “while it is highly desirable that the authority for the transfer of the counting should be directly authorized by the Comelec itself, the latter’s denial of the petitioners’ motion for reconsideration where this legal point was advanced was tantamount to a validation of the authority issued by its provincial representatives.” On the other hand, the Court in Balindong[19] held that the mere fact that the transfer of polling place was not made in accordance with law, particularly Secs. 152-154 of the Omnibus Election Code, does not warrant a declaration of failure of election and the annulment of the proclamation of the winning candidate, because the number of uncast votes will not affect the result of the election. In the case at bar, there is no dispute that the election returns from the 45 precincts will affect the results of the elections.Next, the appointment of military personnel as members of the BEI is another grave electoral irregularity that attended the special elections held on May 30, 2001. There was absolutely no legal basis for the appointment of military personnel as members of the BEI. Verily, the appointments were devoid of any justification other than the bare assertion, again, that “the political parties and municipal candidates agreed on the said arrangement.” The pertinent provisions of the Omnibus Election Code regarding the composition, appointments and substitution of the members of the BEI are quoted as follows:SEC. 164. Composition and appointments of board of election inspectors. - At least thirty days before the date when the voters list is to be prepared in accordance with this Code, in the case of a regular election or fifteen days before a special election, the Commission shall, directly or through its duly authorized representatives, constitute a board of election inspectors for each precinct to be composed of a chairman and a poll clerk who must be public school teachers, priority to be given to civil service eligibles, and two members, each representing the two accredited political parties. The appointment shall state the precinct to which they are assigned and the date of the appointment.SEC. 165. Oath of the members of the board of election inspectors. - The members of the board of election inspectors, whether permanent, substitute or temporary, shall before assuming their office, take and sign an oath upon forms prepared by the Commission, before an officer authorized to administer oaths or, in his absence, before any other member of the board of election inspectors present, or in case no one is present, they shall take it before any voter. The oaths shall be sent immediately to the city or municipal treasurer. (Sec. 157, 1971 EC)SEC. 166. Qualification of members of the board of election inspectors. - No person shall be appointed chairman, member or substitute member of the board of election inspectors unless he is of good moral character and irreproachable reputation, a

registered voter of the city or municipality, has never been convicted of any election offense or of any other crime punishable by more than six months of imprisonment, or if he has pending against him an information for any election offense. He must be able to speak and write English or the local dialect. (Sec. 114, 1978 EC)x x xSEC. 170. Relief and substitution of members of the board of election inspectors. - Public school teachers who are members of the board of election inspectors shall not be relieved nor disqualified from acting as such members, except for cause and after due hearing. x x xSection 13 of Republic Act No. 6646[20] modified Section 164 of the Omnibus Election Code. Said section reads:SEC. 13. Board of Election Inspectors. – The board of election inspectors to be constituted by the Commission under Section 164 of Batas Pambansa Blg. 881 shall be composed of a chairman and two (2) members, one of whom shall be designated as poll clerk, all of whom shall be public school teachers, giving preference to those with permanent appointments. In case there are not enough public school teachers, teachers in private schools, employees in the civil service, or other citizens of known probity and competence who are registered voters of the city or municipality may be appointed for election duty.Clearly, the BEI shall be composed of a chairman and two members, all of whom are public school teachers. If there are not enough public school teachers, teachers in private schools, employees in the civil service or other citizens of known probity and competence may be appointed. It was highly irregular to replace the duly constituted members of the BEI, who were public school teachers. Nothing in petitioners’ pleadings would even suggest that the substitution was made for cause and after hearing. The importance of the constitution of the BEI to the conduct of free, honest and orderly elections cannot be overemphasized. The Court has held that, “the members of the board of election inspectors are the front line election officers. They perform such duties and discharge such responsibilities that make them, in a real sense, foot soldiers who see to it that elections are free, honest and orderly. They are essential to the holding of elections.”[21]

Second  Issue:  Denial of Due ProcessPetitioners claim that there was a clear violation of due process of law because a hearing was not conducted on the circumstances of the special election. Petitioners further claim that the Comelec rendered the assailed resolution without requiring its field officers, specifically, the election officer, provincial election supervisor and the regional election director to explain the transfer of the polling places. Lastly, petitioners point out that none of the eight (8) proclaimed members of the Sangguniang Bayan[22] of Nunungan, Lanao del Norte and the proclaimed Vice Mayor were notified and impleaded as respondents in the petition to annul the election results citing Velayo vs. Commission on Elections.[23]

Section 4 of Republic Act No. 7166 or “The Synchronized Elections Law of 1991” provides that the Comelec sitting en banc by a majority vote of its members may decide, among others, the declaration of failure of election and the calling of special elections as provided in Section 6 of the Omnibus Election Code. Said Section 6, in turn, provides as follows:“SEC. 6. Failure of election. – If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect.”A prayer to annul election results, as in the instant case, and a prayer to declare failure of elections based on allegations of fraud, terrorism, violence or analogous causes, are actually of the same nature and the Election Code denominates them similarly.[24] The Comelec may exercise the power to annul election results or declare a failure of election motu proprio[25] or upon a verified petition.[26] The hearing of the case shall be summary in nature.[27] A formal trial-type hearing is not at all times and in all instances essential to due process – it is enough that the parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present evidence on which a fair decision can be based.[28] In fine, a trial is not at all indispensable to satisfy the demands of due process.The petition was heard by the Comelec en banc on June 27, 2001. During the said hearing, the Comelec directed the parties, as agreed upon, to submit their respective memoranda within five (5) days from date and after which, the case shall be submitted for resolution. Petitioners were duly heard through their pleadings, thus, there is no denial of procedural due process to speak of. Moreover, contrary to the claim of petitioners, the Municipal Board of Canvassers of Nunungan, including Election Officer Ballesta, were summoned to the hearing held on June 27, 2001 and furnished a copy of the petition.The pre-conditions for declaring a failure of election are: (1) that no voting has been held in any precinct or precincts because of force majeure, violence, terrorism, fraud or other analogous causes and (2) that the votes not cast therein are sufficient to affect the results of the elections. The concurrence of these two circumstances justifies the calling of special elections.[29] Here, the Comelec found that the special elections were vitiated by fraud due to the illegal transfer of the polling places and the appointment of military personnel as members of the BEI. Inevitably, the Comelec could not ascertain who voted

during the special elections. The circumstances were such that the entire electoral process was not worthy of faith and credit, hence, in practical effect no election was held.[30]

In Velayo vs. Commission of Elections,[31] the Court held that “the non-inclusion of a proclaimed winner as respondent in a pre-proclamation controversy and his lack of notice of the proceedings in the Comelec which resulted in the cancellation of his proclamation constitute clear denial of due process.” In the Velayo case, the proclaimed mayor and the members of the Municipal Board of Canvassers were not impleaded in the pre-proclamation cases brought before the Comelec. However, in this case, petitioner Cawasa and the members of the Municipal Board of Canvassers were in fact impleaded, notified and even heard by the Comelec in SPC No. 01-276. At this late stage, public interest in the speedy disposition of this case will only be further derailed by the re-opening of the case for the benefit of petitioners-councilors who did not advance any new and substantial matters in this petition warranting the declaration that the special elections were valid and untainted by fraud.WHEREFORE, finding no grave abuse of discretion amounting to lack or excess of jurisdiction on the part of public respondent Commission on Elections, the instant petition is hereby DISMISSED. The resolution of the Commission on Elections en banc in SPC No. 01-276 dated October 24, 20001 is hereby AFFIRMED.Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, and Corona, JJ., concur.Quisumbing, J., on leave.