Professional Documents
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PANGANIBAN, J : p
The solicitor general contends that the petition is moot and academic,
because the May
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11, 1998 election has already been held and done with. Allegedly,
there is no longer any actual controversy before us.
The issue is not totally moot. While the assailed Resolution referred
speci cally to the May 11, 1998 election, its implications on the
people's fundamental freedom of expression transcend the past
election. The holding of periodic elections is a basic feature of our
democratic government. By its very nature, exit polling is tied up
with elections. To set aside the resolution of the issue now will only
postpone a task that could well crop up again in future elections. 6
In any event, in Salonga v. Cruz Pano, the Court had occasion to
reiterate that it "also has the duty to formulate guiding and
controlling constitutional principles, precepts, doctrines, or rules. It
has the symbolic function of educating bench and bar on the extent
of protection given by constitutional guarantees." 7 Since the
fundamental freedoms of speech and of the press are being invoked
here, we have resolved to settle, for the guidance of posterity,
whether they likewise protect the holding of exit polls and the
dissemination of data derived therefrom.
The solicitor general further contends that the Petition should be
dismissed for petitioner's failure to exhaust available remedies before
the issuing forum, speci cally the filing of a motion for
reconsideration.
This Court, however, has ruled in the past that this procedural
requirement may be glossed over to prevent a miscarriage of justice,
8 when the issue involves the principle of social justice or the
protection of labor, 9 when the decision or resolution sought to be set
aside is a nullity, 10 or when the need for relief is extremely urgent
and certiorari is the only adequate and speedy remedy available. 11
The instant Petition assails a Resolution issued by the Comelec en
banc on April 21, 1998, only twenty (20) days before the election
itself. Besides, the petitioner got hold of a copy thereof only on May
4, 1998. Under the circumstances, there was hardly enough
opportunity to move for a reconsideration and to obtain a swift
resolution in time for the May 11, 1998 elections. Moreover, not only
is time of the essence; the Petition involves transcendental
constitutional issues. Direct resort to this Court through a special
civil action for certiorari is therefore justified.
Main Issue:
Validity of Conducting Exit Polls
An exit poll is a species of electoral survey conducted by quali ed
individuals or group of individuals for the purpose of determining
the probable result of an election by con dentially asking randomly
selected voters whom they have voted for, immediately after they
have of cially cast their ballots. The results of the survey are
announced to the public, usually through the mass media, to give an
advance overview of how, in the opinion of the polling individuals or
organizations, the electorate voted. In our electoral history, exit polls
had not been resorted to until the recent May 11, 1998 elections.
In its Petition, ABS-CBN Broadcasting Corporation maintains that it
is a responsible member of the mass media, committed to report
balanced election-related data, including "the exclusive results of
Social Weather Station (SWS) surveys conducted in fteen
administrative regions."
It argues that the holding of exit polls and the nationwide reporting
of their results are valid exercises of the freedoms of speech and of
the press. It submits that, in precipitately and unquali edly restraining
the holding and the reporting of exit polls, the Comelec gravely
abused its discretion and grossly violated the petitioner's
constitutional rights.
Public respondent, on the other hand, vehemently denies that, in
issuing the assailed Resolution, it gravely abused its discretion. It
insists that the issuance thereof was "pursuant to its constitutional
and statutory powers to promote a clean, honest, orderly and credible
May 11, 1998 elections"; and "to protect, preserve and maintain the
secrecy and sanctity of the ballot." It contends that "the conduct of
exit surveys might unduly confuse and in uence the voters," and that
the surveys were designed "to condition the minds of people and
cause confusion as to who are the winners and the [losers] in the
election," which in turn may result in "violence and anarchy."
Public respondent further argues that "exit surveys indirectly violate
the constitutional principle to preserve the sanctity of the ballots," as
the "voters are lured to reveal the contents of ballots," in violation of
Section 2, Article V of the Constitution; 12 and relevant provisions of
the Omnibus Election Code. 13 It submits that the constitutionally
protected freedoms invoked by petitioner "are not immune to
regulation by the State in the legitimate exercise of its police power,"
such as in the present case.
The solicitor general, in support of the public respondent, adds that
the exit polls pose a "clear and present danger of destroying the
credibility and integrity of the electoral process," considering that
they are not supervised by any government agency and can in
general be manipulated easily. He insists that these polls would sow
confusion among the voters and would undermine the of cial
tabulation of votes conducted by the Commission, as well as the
quick count undertaken by the Namfrel.
Admittedly, no law prohibits the holding and the reporting of exit
polls. The question can thus be more narrowly de ned: May the
Comelec, in the exercise of its powers, totally ban exit polls? In
answering this question, we need to review quickly our jurisprudence
on the freedoms of speech and of the press.
Nature and Scope of Freedoms of Speech and of the Press
The freedom of expression is a fundamental principle of our
democratic government. It "is a 'preferred' right and, therefore,
stands on a higher level than substantive economic or other
liberties. . . . [T]his must be so because the lessons of history, both
political and legal, illustrate that freedom of thought and speech is
the indispensable condition of nearly every other form of freedom."
14
Our Constitution clearly mandates that no law shall be passed
abridging the freedom of speech or of the press. 15 In the landmark
case Gonzales v. Comelec, 16 this Court enunciated that at the very
least, free speech and a free press consist of the liberty to discuss
publicly and truthfully any matter of public interest without prior
restraint. LLpr
electoral process."
Such arguments are purely speculative and clearly untenable. First,
by the very nature of a survey, the interviewees or participants are
selected at random, so that the results will as much as possible be
representative or re ective of the general sentiment or view of the
community or group polled. Second, the survey result is not meant to
replace or be at par with the of cial Comelec count. It consists merely
of the opinion of the polling group as to who the electorate in general
has probably voted for, based on the limited data gathered from
polled individuals. Finally, not at stake here are the credibility and
the integrity of the elections, which are exercises that are separate
and independent from the exit polls. The holding and the reporting of
the results of exit polls cannot undermine those of the elections,
since the former is only part of the latter. If at all, the outcome of one
can only be indicative of the other.
The Comelec's concern with the possible noncommunicative effect
of exit polls disorder and confusion in the voting centers does
not justify a total ban on them. Undoubtedly, the assailed Comelec
Resolution is too broad, since its application is without quali cation
as to whether the polling is disruptive or not. 44 Concededly, the
Omnibus Election Code prohibits disruptive behavior around the
voting centers. 45 There is no showing, however, that exit polls or the
means to interview voters cause chaos in voting centers. Neither has
any evidence been presented proving that the presence of exit poll
reporters near an election precinct tends to create disorder or confuse
the voters.
Moreover, the prohibition incidentally prevents the collection of exit
poll data and their use for any purpose. The valuable information and
ideas that could be derived from them, based on the voters' answers
to the survey questions will forever remain unknown and
unexplored. Unless the ban is restrained, candidates, researchers,
social scientists and the electorate in general would be deprived of
studies on the impact of current events and of election-day and other
factors on voters' choices.
I n Daily Herald Co. v. Munro, 46 the US Supreme Court held that a
statute, one of the purposes of which was to prevent the broadcasting
of early returns, was unconstitutional because such purpose was
impermissible, and the statute was neither narrowly tailored to
advance a state interest nor the least restrictive alternative.
Furthermore, the general interest of the State in insulating voters
from outside in uences is insuf cient to justify speech regulation. Just
as curtailing election-day broadcasts and newspaper editorials for the
reason that they might indirectly affect the voters' choices is
impermissible, so is regulating speech via an exit poll restriction. 47
The absolute ban imposed by the Comelec cannot, therefore, be justi
ed. It does not leave open any alternative channel of communication
to gather the type of information obtained through exit polling. On
the other hand, there are other valid and reasonable ways and means
to achieve the Comelec end of avoiding or minimizing disorder and
confusion that may be brought about by exit surveys.
For instance, a speci c limited area for conducting exit polls may be
designated. Only professional survey groups may be allowed to
conduct the same. Pollsters may be kept at a reasonable distance
from the voting center. They may be required to explain to voters
that the latter may refuse to be interviewed, and that the interview is
not part of the of cial balloting process. The pollsters may further be
required to wear distinctive clothing that would show they are not
election of cials. 48 Additionally, they may be required to undertake
an information campaign on the nature of the exercise and the results
to be obtained therefrom. These measures, together with a general
prohibition of disruptive
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Separate Opinions
The instant petition, now technically moot, presents issues so signi
cant that a slight change of circumstances can have a decisive effect
on, and possibly spell a difference in, the nal outcome of the case. I
am not inclined to take the case in an academic fashion and pass
upon the views expressed by either party in preemptive judgment.
While I understand what the ponencia is saying quite laudably, I also
appreciate, upon the other hand, the concern of the Commission on
Elections, i.e., that the conduct of exit polls can have some adverse
effects on the need to preserve the sanctity of the ballot. The
Commission performs an indispensable task of ensuring free, honest,
and orderly elections and of guarding against any frustration of the
true will of the people. Expectedly, it utilizes all means available
within its power and authority to prevent the electoral process from
being manipulated and rendered an absurdity. Like my colleagues, I
greatly prize the freedom of expression but, so also, I cherish no less
the right of the people to express their will by means of the ballot. In
any case, I must accept the reality that the right to information and
free speech is not illimitable and immune from the valid exercise of
an ever demanding and pervasive police power. Whether any kind of
restraint should be upheld or declared invalid in the proper balancing
of interest is one that must be resolved at any given moment, not on
perceived circumstances, but on prevailing facts. LibLex
regulation may result in some limitation of the right of free speech and free
press. For supervision or regulation of the operations of media enterprises
is scarcely conceivable without such accompanying limitation. Thus, the
applicable rule is the general, time honored one that a statute is
presumed to be constitutional and that the party asserting its
unconstitutionality must discharge the burden of clearly and convincingly
proving that assertion. 3
The NPC decision holds that if the right to free speech collides with
a norm of constitutional stature, 4 the rule on heavy presumption of
invalidity does not apply.
Our Constitution mandates the Comelec to enforce and administer
laws and regulations relative to the conduct of elections and to secure
the secrecy and sanctity of the ballots to ensure orderly, honest,
credible and peaceful elections. 5 This Constitutional provision
effectively displaces the general presumption of invalidity in favor of
the presumption that Comelec acted in the exercise of its
constitutionally mandated powers. If no presumption of invalidity
arises, I see no occasion for the application of the "clear and present
danger test." As this Court, through Mr. Justice Mendoza, succinctly
observed: LibLex
1. Rollo, p. 14.
3. Petition, p. 4.
4. Rollo, p. 78 et seq.
6. See Gamboa Jr. v. Aguirre Jr., G.R. No. 134213, July 20, 1999.
7. 134 SCRA 438, 463, February 18, 1985; per Gutierrez Jr., J.
10. Alfante v. NLRC, 283 SCRA 340, December 15, 1997; Saldana v.
Court of Appeals, 190 SCRA 386, October 11, 1990.
12. "Sec. 2. The Congress shall provide a system for securing the secrecy
and sanctity of the ballot . . . ."
13. Citing 195, 196, 207 and 261 (z-5, 7 & 16).
14. Salonga v. Cruz Pao, supra, pp. 458-459. See also Gonzales v.
Comelec, 27 SCRA 835, 849, 856-857, April 18, 1969;Philippine
Blooming Mills Employees Organization v. Philippine Blooming
Mills Co., Inc., 51 SCRA 191, June 5, 1973; National Press Club v.
Comelec, 207 SCRA 1, 9, March 5, 1992; Blo Umpar Adiong v.
Comelec, 207 SCRA 712, 715, March 31, 1992.
17. Ibid., p. 857; citing Emerson, Toward a General Theory of the First
Amendment (1966).
18. Ibid., citing New York Times Co. v. Sullivan, 376 US 254, 270
(1964).
21. Badoy Jr. v. Comelec, 35 SCRA 285, 289, October 17, 1970.
24. Ibid., citing Gitlow v. New York, 268 US 652, 69 L ed. 1138 (1925).
30. Supra.
EN BANC
[G.R. No. 103956. March 31, 1992.]
BLO UMPAR ADIONG, petitioner, vs. COMMISSION ON
ELECTIONS, respondent.
Romulo R. Macalintal for petitioner.
SYLLABUS
1. POLITICAL LAW; ELECTIONS; PROHIBITION ON POSTING
OF DECALS AND STICKERS ON MOBILE PLACES (SECTION
15 (a) AND SECTION 21 (f) OF COMELEC RESOLUTION NO.
2347); NULL AND VOID. 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.
2. ID.; ID.; ID.; INFRINGEMENT OF FREEDOM OF SPEECH
AND EXPRESSION. COMELEC Resolution No. 2347 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]; Mutucv. Commission on
Elections, 36 SCRA 228 [1980]). This qualitative signi cance 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. Pao, 134 SCRA 438
[1985]). It is dif cult 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 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)
3. ID.; ID.; ID.; SUBSTANTIAL GOVERNMENT INTEREST AND
PUBLIC INTEREST, NOT THREATENED; CLEAR AND
PRESENT DANGER RULE, NOT PRESENT. The regulation in
the present case is of a different category. The promotion of a
substantial Government interest is not clearly shown. "A government
regulation is suf ciently justi ed 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 freedom 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
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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 freedoms secured
by the rst 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 justi ed 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 suf ce.
These rights rest on rmer 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]." Signi cantly, 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 newspaper or radio
and television stations and commentators or columnists as long as
these are not covertly 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.
4. ID.; ID.; DEBATE ON PUBLIC ISSUES SHOULD BE OPEN.
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 of cials. (New York Times Co. v. Sullivan
376 U.S. 254, 11 L. Ed. 2d 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.
5. ID.; ID.; FREEDOM OF SPEECH AND INFORMATION
PREVAILS. 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 of cials 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.
6. ID.; ID.; REGULATION OF ELECTION ACTIVITY, LIMITED;
TEST OF VALIDITY. The 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
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"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
freedoms 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 justi ed 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 suf ce. These rights rest on
rmer 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)
Signi cantly, the freedom of expression curtailed by the question
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 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
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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
justi cation on the part of the Government must be exceptionally
convincing and irrefutable. The burden is not met in this case. LexLia
EN BANC
[G.R. No. 103877. June 23, 1992.]
BENJAMIN F. ARAO , petitioner, vs. COMMISSION ON
ELECTIONS and WARLITO PULMONES, respondents.
Ruben E. Agpalo for petitioner.
SYLLABUS
1. REMEDIAL LAW; ACTIONS; DISTINCTION BETWEEN
ORIGINAL ACTION FOR CERTIORARI UNDER THE
CONSTITUTION AND APPEAL BY CERTIORARI. Distinction
should be drawn between an original action for certiorari, as in this
case brought under Sec. 7, Art. IX-A, 1987 Constitution, and an
appeal by certiorari or petition for review. In the special civil action
for certiorari, the main issue is lack of jurisdiction or grave abuse of
discretion amounting to excess of jurisdiction, while an appeal by
certiorari or petition for review is limited to the consideration of
questions of law.
2. ID.; EVIDENCE; CONCLUSION OF COMELEC ENTITLED
TO UTMOST RESPECT. This Court has invariably followed the
principle that in the absence of any jurisdictional in rmity or an error
of law of the utmost gravity, the conclusion reached by respondent
Commission on a matter that falls within its competence is entitled to
the utmost respect. So it has been reiterated time and time again.
(Sidro v. Commission on Elections, G.R. No. 64033, July 25, 1983,
123 SCRA 759)
3. ID.; SUPREME COURT; POWER TO PASS UPON AN ORDER
OR DECISION OF THE COMELEC; LIMITATION. The
extraordinary power of this Court to pass upon an order or decision
of COMELEC should be exercised restrictively, with care and
caution, while giving it the highest regard and respect due a
constitutional body. For, not every abuse of discretion justi es the
original action of certiorari; it must be grave. Nor any denial of due
process within its ambit; it must be patent and it must be substantial.
The test therefore is whether petitioner has demonstrated
convincingly that COMELEC has committed grave abuse of
discretion or exceeded its jurisdiction amounting to patent and
substantial denial of due process in issuing the challenged decision.
4. POLITICAL LAW; ELECTION LAWS; ELECTION PROTEST;
POWER OF COMELEC TO RULE ON ISSUES NOT SPECIFIED
BY PARTY; CASE AT BAR. The failure or omission of protestant
to raise the question of identical handwriting or of impugning the
validity of the ballots on that ground, resulting in the invalidation of
466 ballots for petitioner, does not preclude respondent COMELEC
from rejecting them on that ground. Unlike an ordinary suit, an
election protest is of utmost public concern. The rights of the
contending parties in the position aspired for must yield to the far
greater interest of the citizens in the sanctity of the electoral process.
This being the case, the choice of the people to represent them may
not be bargained away by the sheer negligence of a party, nor
defeated by technical rules of procedure. Thus, COMELEC cannot
just close its eyes to the illegality of the ballots brought before it,
where the ground for the invalidation was omitted by the protestant.
As held in Yalung v. Atienza: 52 Phil. 781 (1929) ". . . Inasmuch as it
is not necessary to specify
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This petition for certiorari 1 seeks to set aside, for having allegedly
been issued with grave abuse of discretion and/or in excess of
jurisdiction, the Decision of respondent Commission on Elections
(COMELEC) in EPC No. 88-1, 2 promulgated January 23, 1992,
which reconsidered the Resolution of its First Division of December
11, 1991, 3 nding petitioner (protestee therein) "winner of the election
protest by a margin of 378 votes in lieu of the original lead of
protestee of 417 votes over protestant at the time of the former's
proclamation by the City Board of Canvassers of Pagadian City," and
declaring instead private respondent (protestant therein) duly elected
mayor thereof.
Petitioner Benjamin Arao and private respondent Warlito Pulmones
were candidates for the Of ce of City Mayor of Pagadian City in the
January 18, 1988, local elections. After
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canvass, petitioner was shown to have garnered 12,447 votes, while
private respondent, only 12,030 votes 4 , or a margin of 417 votes in
favor of petitioner. Consequently, on January 21, 1988, petitioner
was proclaimed City Mayor-elect of Pagadian City. 5
On January 28, 1988, private respondent led his Protest with
COMELEC6 more particularly alleging that "while fraud and
anomalies were rampant in practically all the voting centers of
Pagadian City, the violations were glaringly and notably perpetrated
in the following districts and/or precincts, to wit: (a) [I]n all the three
(3) precincts of Kawit District . . . (b) [I]n Tuburan District . . .
particularly in Precincts 77 and 80 . . . (c) (I)n Bonifacio District,
particularly Precinct 69 . . . (d) [I)n Sta. Lucia District, particularly
Precinct No. 42 . . . (e) [I)n all of the seven (7) precincts in Sto Nio
District . . . (f) [I)n San Jose District, particularly Precinct No. 32 . . .
(g) [I)n Precinct No. 33 of San Jose District . . . (h) [I)n Precinct No.
34 of San Jose District . . . (i) [I)n all the precincts in San Pedro
District . . . (j) [I)n Precincts 19 and 22 of Gatas District . . . (k) . . .
in all the precincts in Balangasa District but more notably in
Precincts 8 and 11 . . ."
On February 8, 1988, petitioner filed his Answer with
Counterprotest. 7 However, COMELEC (First Division) dismissed
the counterprotest per its Resolution of February 7, 1991, for failure
to pay the required filing fee with the reglementary period. 8
On February 15, 1988, or after the 10-day period to le an election
protest, private respondent led an Amended Protest enumerating
therein thirteen (13) precincts which were not previously speci ed:
Precincts 1-A, 4, 6, 9, 17, 20, 21, 30, 31, 35, 36, 50 and 70. 9
Actually, other precincts, i.e., Precincts 101, 110, 111, 112, 113, 121,
122, 129, 137, 143, 153, 108 and 131, which were not particularly
mentioned in the Petition, were included in the Amended Protest. 10
On March 3, 1988, petitioner led his Protestee's Comments and
Observations on the Amended Protest, although received by
COMELEC only on April 4, 1988. 11
On February 7, 1991, COMELEC (First Division) issued the
following Resolution: LexLib
1996, the Commission hereby denies the herein Protestee's Comments and
Observations on the Protestant's Amended Protest."
In the Resolution En Banc of this Court dated September 7, 1989, in
G.R. No. 88036, where petitioner questioned the "transfer of the
questioned ballot boxes to Cagayan de Oro in view of the serious
peace and order problem in Pagadian City", it clearly appears that the
Amended Protest was in fact admitted, thus
". . . Besides, the Order of April 7, 1988, admitting the amended protest
was questioned only on May 11, 1989, when the herein petition was led, or
way beyond the 30-day reglementary period prescribed in Article IX-A,
Section 7, of the Constitution."
On December 11, 1991, after revision of ballots and hearing,
COMELEC (First Division) promulgated a Resolution the
dispositive portion of which reads:
"WHEREFORE . . . the Commission (First Division) RESOLVES, as it
hereby RESOLVES, to DISMISS Election Protest Case No. 88-1 and
DECLARES protestee winner of the election protest by a margin of 378
votes in lieu of the original lead of protestee by 417 votes over protestant
at the time of the former's proclamation by the City Board of Canvassers
of Pagadian City." 14
On December 16, 1991, private respondent filed his Motion for
Reconsideration. 15 Petitioner claims that on January 15, 1992, he led
a Memorandum in Opposition to the
Motion for Reconsideration of private respondent 16 raising the
following points:
(a) examination and appreciation of ballots should have been con ned to 31
protested precincts per original protest led January 28, 1988, considering
that amended protest was decreed as "not admissible" in the February 7,
1991, Resolution of COMELEC (First Division);
(b) examination of ballots to determine identical handwritings should be
limited to Precincts 19, 22, 8 and 11 as alleged in the original protest;
(c) it was contrary to basic rules for COMELEC to pass upon ballots (in
favor of protestee) as identical with each other when they were not even
questioned by protestant, thus depriving protestee the right to present
controverting evidence;
(d) COMELEC failed to consider its records showing that there were 139
assisted illiterate or disabled voters, hence, to invalidate their votes is
technically a disenfranchisement and a subversion of sovereign will;
(e) it is statistically improbable for a candidate to have utilized 332 groups
(persons) to write 723 ballots (a ratio of 1 person for 2 ballots);
(f) mathematical computation of protestant in his motion for
reconsideration is erroneous and self-serving; and,
(g) COMELEC should have credited 10 more votes for protestee as
affirmed/admitted during the revision of ballots.
However, in his Comment, private respondent Pulmones denies all
these averments of petitioner, and claims that they contain "baseless
and unfounded" allegations which are precisely to be rejected in this
petition.
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rejecting the others, with a view to arriving at the lawfully expressed will
of the electors. The institution of popular suffrage is one of public interest
and not a private interest of the candidates, so that if in the revision of the
ballots some illegal ballots are found which have not been speci cally
impugned in the motion of protest, the court may reject them motu propio,
since it is not essential that the contestant set forth the grounds of his
contest with the same precision required of a pleading in ordinary civil
cases (20 Corpus Juris, 227; emphasis supplied).
"In the case of Lucero vs. De Guzman (45 Phil. 852), this court stated the
following: 'The purpose of the legislature in declaring that contests should
not be conducted upon pleadings or by action was to free the courts as far
as possible from the technicalities incident to ordinary proceeding by
action and to enable the courts to administer justice speedily and without
complication."
"The trial court, then, did not err in taking into account in the revision of
the ballots, irregularities not set forth in the motion of protest."
With regard to the third issue, the complaint of petitioner against the
alleged omission of COMELEC to state the reasons for its
conclusion that certain ballots were with identical handwritings,
some marked and others stray, does not in any magnitude diminish
the straightforward statement of the public respondent that "it
painstakingly examined and appreciated individually the contested
ballots for both protestant and protestee in accordance with existing
norms . . ." 22
Petitioner did not question this alleged irregularity by bringing the
matter to the attention of COMELEC (First Division) immediately
after the promulgation of its Resolution. The Resolution containing
the alleged jurisdictional defect was promulgated on December 11,
1991. However, it was not until he led his petition on February 17,
1992, that petitioner complained for the rst time. Certainly, that
Resolution having been rendered by a division of COMELEC could
have been subject of a motion for reconsideration. Admittedly,
petitioner did not take steps to have the matter reconsidered by
public respondent before coming to Us.
Having been declared winner in the Resolution of December 11,
1991, petitioner would not ordinarily be expected to initiate a motion
for reconsideration. Nonetheless, he could have brought up his
objections in his Memorandum in opposition to the Protestant's
Motion for Reconsideration so that public respondent could have
properly ruled thereon. Consequently, petitioner may be deemed to
have waived his right to question the Resolution when he failed to
act accordingly despite the opportunity so to do. He should not be
permitted, in other words, to remain mute and unaffected in the face
of a perceived jurisdictional defect and, worse, pro t from his
quiescence, only to grumble in the end when it turns out to be
prejudicial to his interest. As it has been said, "[n]either equity not
the law relieves those who seek aid in Court merely to avoid the
effects of their own negligence . . ." (Lipscomb v. Talbott, 243 Mo 1,
36 [1912]).
WHEREFORE, nding no abuse of discretion, much less grave,
patent and substantial, the petition is DENIED. llcd
19. G.R. No. 64033, July 25, 1983; 123 SCRA 759.
EN BANC
[G.R. No. 120426. November 23, 1995.]
NICOLAS C. CASTROMAYOR, petitioner, vs. COMMISSION ON
ELECTIONS and the MUNICIPAL BOARD OF CANVASSERS OF
CALINOG, ILOILO, respondents.
Marven B. Daquilanea for petitioner.
The Solicitor General for respondent.
Ladrido, Trompeta, Caoyonan & Villa for intervenor.
SYLLABUS
POLITICAL LAW; ELECTION LAW; COMMISSION ON
ELECTIONS; RULES OF PROCEDURE; SECTION 7 RULE 27
THEREOF; CORRECTION OF ERRORS IN TABULATION OR
TALLYING OF RESULTS BY BOARD OF CANVASSERS;
APPLICABLE IN CASES WHERE THE VALIDITY OF THE
PROCLAMATION IS IN QUESTION. The proceedings before
the Municipal Board of Canvassers (MBC) should be summary.
Should any party be dissatis ed with the ruling of the MBC, the party
concerned shall have a right to appeal to the COMELEC en banc, in
accordance with Rule 27, Section 7 of the COMELEC Rules of
Procedure. Although this provision applies to pre-proclamation
controversies and here the proclamation of petitioner has already
been made, there is nothing to suggest that it cannot be applied to
cases like the one at bar, in which the validity of the proclamation is
precisely in question. On the contrary, in Duremdes v. COMELEC,
(178 SCRA 746 [1989]) this Court sustained the power of the
COMELEC en banc to order a correction of the Statement of Votes
to make it conform to the election returns in accordance with a
procedure similar to the procedure now embodied in Rule 27,
Section 7. If the Rule was not applied, it was only because it was
adopted after that case had arisen. Otherwise, as we said there, this
procedure "best recommends itself specially considering that the
Statement of Votes is a vital component in the electoral process."
Indeed, since the Statement of Votes forms the basis of the Certi cate
of Canvass and of the proclamation, any error in the statement
ultimately affects the validity of the proclamation. It begs the
question, therefore, to say that this is not a preproclamation
controversy and the procedure for pre-proclamation controversies
cannot be applied to the correction in the computation of the totals in
the Statement of Votes. It should be pointed out, in this connection,
that what is involved here is a simple problem of arithmetic. The
Statement of Votes is merely a tabulation per precinct of the votes
obtained by the candidates as re ected in the election returns. In
making the correction in computation, the MBC will be acting in an
administrative capacity, under the control and supervision of the
COMELEC. Hence any question pertaining to the proceedings of the
MBC may be raised directly to the COMELEC en banc in the
exercise of its constitutional function to decide questions affecting
elections. What has just been said also disposes of petitioner's other
contention that because his proclamation has already been made, any
remedy of the losing party is an election protest. As held in the
Duremdes
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DECISION
MENDOZA, J : p
95-2414.
1)
2)
In the matter of the Fax-letter dated 13 May 1995 from Election Of cer
Alice M. Carin [sic], requesting for an authority to reconvene the MBC of
Calinog, Iloilo to annul the proclamation of Nicolas Castromayor for the
No. 8 place for councilor and to proclaim Nilda C. Demorito as the duly
elected number eight (8) SB member of said municipality,
RESOLVED:
To direct the Municipal Board of Canvassers of said municipality to
reconvene to annul the proclamation of Nicolas C. Castromayor for the
number 8 place for councilor; and
To proclaim the winning number eight (8) councilor, and to submit
compliance hereof within five (5) days from receipt of notice. 5
On May 25, 1995, not yet apprised of the resolution of the
COMELEC en banc, Garin sent a letter to petitioner Castromayor,
informing him of the error in the computation of the totals and of the
request made by the MBC for permission to reconvene to correct the
error.
Petitioner protested the proposed action in a letter dated June 5, 1995
to COMELEC Executive Director Resurreccion A. Borra. He
questioned the legality of the actuations of Garin as stated in her
letter. 6
On June 9, 1995, the MBC was informed by fax of the COMELEC's
action on its request. 7
Accordingly on June 14, 1995, the MBC sent notices to the parties
concerned that it was going to reconvene on June 22, 1995, at 10:00
a.m., at the Session Hall of the Sangguniang Bayan, to make a
correction of errors.
Hence this petition to annul COMELEC Resolution No. 95-2414.
Petitioner complains that the COMELECen banc issued the
resolution in question without notice and hearing, solely on the basis
of the fax letter of the MBC. He claims that even if the matter were
treated as a pre-proclamation controversy, there would nonetheless
be a need for hearing, with notice to him and an opportunity to refute
any contrary argument which might be presented. He invokes the
ruling of this Court in Bince, Jr. v. COMELEC 8 that the COMELEC
is "without power to partially or totally annul a proclamation or
suspend the effects of a proclamation without notice and hearing."
Petitioner's contention is well taken. That is why upon the ling of the
petition in this case, we issued a temporary retraining order against
respondents enjoining them from enforcing the resolution of the
COMELEC. Public respondents, through the Solicitor General, now
claim, however,
that said resolution merely stated the purpose of the reconvening of
respondent Board, and that the process and hearing for the annulment of
petitioner's proclamation, due to mistake in computing the votes of
Sangguniang Bayan candidate Nilda Demorito, will formally take place
when respondent Board reconvenes, at which time and place, petitioner
was already informed of (see Annex E, Petition).
xxx xxx xxx
In the aforesaid reconvening, petitioner would have been free to interpose
all his objections, and discuss his position regarding the matter. 9
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3. Rollo, p. 53.
EN BANC
[G.R. No. 162777. August 31, 2004.]
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.
DECISION
AZCUNA, J : p
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 of ce 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 led his certi cate 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
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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 rst 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 led a certi cate
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.
Davide, Jr., C .J ., Quisumbing, Ynares-Santiago, Austria-Martinez,
Corona, Carpio Morales, Callejo, Sr., Tinga and Chico-Nazario, JJ .,
concur.
Puno, Panganiban, Sandoval-Gutierrez and Carpio, JJ ., are on
official leave. Footnotes
1. Acebedo Optical v. CA, 329 SCRA 314 (2000).
EN BANC
[G.R. No. L-61998. February 22, 1983.]
ROGELIO DE JESUS, petitioner, vs. PEOPLE OF THE
PHILIPPINES, et al., respondents.
Jaime G. Fortes for petitioner.
The Solicitor General for respondents.
SYLLABUS
1. ADMINISTRATIVE LAW; COMELEC; CONSTITUTIONAL
GRANT OF POWER TO ENFORCE AND ADMINISTER LAWS
RELATIVE TO THE CONDUCT OF ELECTION AND TO
INVESTIGATE AND PROSECUTE ELECTION OFFENSES.
The grant to the COMELEC of the power, among others, to enforce
and administer all laws relative to the conduct of election and the
concomitant authority to investigate and prosecute election offenses
is not without compelling reason. The evident constitutional
intendment in bestowing this power to the COMELEC is to insure
the free, orderly and honest conduct of elections, failure of which
would result in the frustration of the true will of the people and make
a mere idle ceremony of the sacred right and duty of every qualified
citizen to vote. To divest the COMELEC of the authority to
investigate and prosecute offenses committed by public officials in
relation to their office would thus seriously impair its effectiveness in
achieving this clear constitutional mandate.
2. ID.; ID.; BESTOWAL UPON COMELEC AND COURT OF
FIRST INSTANCE TO INVESTIGATE, PROSECUTE AND HEAR
ELECTION OFFENSES, CATEGORICAL. From a careful
scrutiny of the constitutional provisions relied upon by the
Sandiganbayan, We perceive neither explicit nor implicit grant to it
and its prosecuting arm, the Tanodbayan, of the authority to
investigate, prosecute and hear election offenses committed by
public officers in relation to their office, as contradistinguished from
the clear and categorical bestowal of said authority and jurisdiction
upon the COMELEC and the courts of first instance under Sections
182 and 184, respectively, of the Election Code of 1978.
3. CONSTITUTIONAL LAW; STATUTORY CONSTRUCTION;
"AS MAY BE DETERMINED BY LAW," CONSTRUED. Under
the Constitution, the Sandiganbayan shall have jurisdiction over
". . .offenses committed by public officers . . . relation to their office
as may be determined by law" (Sec. 5, Art. XIII):while the Office of
the Tanodbayan shall "receive and investigate complaints relative to
public office." (Sec. 6, Art. XIII) The clause, "as may be determined
by law" is, to Our mind, imbued with grave import. It called for a
legislation that would define and delineate the power and jurisdiction
of both the Tanodbayan and the Sandiganbayan, as what, in fact had
been provided for in Presidential Decree Nos. 1606 and 1607,
creating the said entities. Thus, under Section 4 of P.D. No. 1606, the
Sandiganbayan shall have jurisdiction over: (c) Other crimes or
offenses committed by public officers or employees, including those
employed in government-owned or controlled corporations, in
relation to their office." Plainly, the above quoted paragraph (c) is but
a re-statement of the constitutional provision relating to the
Sandiganbayan. It is also to be noted that it is phrased in terms so
broad and general that it cannot be legitimately construed to vest said
entity with exclusive jurisdiction over election offenses
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provisions of Section '89' and Section. '178' under Article XVI specifically
sub- section 'X' and sub-section 'MM', which is a violation of the Election
Code of 1978 to the erosion of public faith and confidence."
The case, docketed as SB Criminal Case No. 5054, was raffled to the
Second Division of the Sandiganbayan.
Petitioner filed a motion to quash the information, contending that
neither the Tanodbayan nor the Sandiganbayan has the authority to
investigate, prosecute and try the offense.
xxx xxx xxx
[x] Any election registrar or any person acting in his behalf who
issues or causes the issuance of a voter's certificate of registration or
cancels or causes the cancellation thereof in violation of the provisions of
this Code.
xxx xxx xxx
[mm] Any person who, without authority, acts as, or assumes or
performs any function of a member of the election committee, or the board
of canvassers, or deputy of representative of the Commission."
charged in the information, the same being an election offense over
which the power to investigate, prosecute and try is lodged by law in
the COMELEC and the Court of First Instance. In its opposition, the
prosecution maintained the Tanodbayan's exclusive authority to
investigate and prosecute offenses committed by public of cers and
employees in relation to their of ce, and consequently, the
Sandiganbayan's jurisdiction to try and decide the charges against
petitioner.
The COMELEC, having learned of the pendency of the case, entered
its appearance as amicus curiae, and through its law department
manager, Atty. Zoilo Gomez, Jr., submitted a memorandum
supporting petitioner's stand. 4
On August 13, 1982, the Sandiganbayan issued the questioned
resolution denying the motion to quash. Petitioner's motion for
reconsideration was likewise denied. Hence, this petition for review
on certiorari.prLL
The legal question posed being one of first impression, this, Court
resolved to give due course to the petition, treating the same as an
original petition for certiorari under Rule 65 of the Rules of Court,
the proper mode by which relief from the resolution of the
Sandiganbayan could be obtained from this Tribunal.
Petitioner and respondents rely on different provisions of the 1973
Constitution as bases for their respective contentions. Petitioner
invokes Section 2 of Article XII[c] of the 1973 Constitution which
vests upon the COMELEC the power "to enforce and administer all
laws relative to the conduct of elections," and its implementing
legislation, Section 182 of the 1978 Election Code, which provides
the following:
"Section 182 Prosecution. The Commission shall, thru its duly
authorized legal officer, have the power to conduct preliminary
investigation of all election
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offenses punishable under this Code and to prosecute the same. The
Commission may avail of the assistance of other prosecuting arms of the
government."
Petitioner further cites Section 184 of the same Code which invests
the court of first instance with "exclusive original jurisdiction to try
and decide any criminal action or proceedings for violation of this
Code, except those relating to the offense of failure to register or
failure to vote which shall be under the jurisdiction of the city or
municipal courts. . . ." The Solicitor General supports the petitioner's
views. 5
Upon the other hand, the Sandiganbayan, in its resolution of August
13, 1982, 6 asserts its jurisdiction over Criminal Case No. 5054 on
the authority of Section 5, Article XIII of the Constitution, which
mandated the creation by the Batasan Pambansa of "a special court,
to be known as Sandiganbayan, which shall have jurisdiction over
criminal and civil cases involving graft and corrupt practices, and
such other offenses committed by public officers and employees,
including those in government-owned and controlled corporations, in
relation to their office as may be determined by law."
To the Sandiganbayan, as set forth in the challenged resolution, ". . .
the key phrase in the determination as to which of the Sandiganbayan
or the regular courts of first instance should take cognizance of an
election offense, is the phrase, 'in relation to their office'." Thus, it
would distinguish between election offenses committed by public
officers and employees in relation to their office and those committed
not in relation to their office, in this manner:
"If the election offense is committed by a public officer or employee NOT
in relation to their office, generally, jurisdiction will be assumed by the
regular courts. If, on the other hand, the offense was committed by a public
officer or employee in relation to their office, then there is no other tribunal
vested with jurisdiction to try such offense but this court, in consonance
with the mandate of the Constitution that the Sandiganbayan has
jurisdiction, 'over . . . offenses committed by public officers and employees
in relation to their office.'"
We find the position of the Sandiganbayan devoid of merit. Cdpr
2. Sub-sections "x" and "mm" of Section 178 of the 1978 Election Code
read as follows: "Sec. 178. Prohibited Acts. The following shall
be guilty of an election offense:
3. Sub-sections "x" and "mm" of Section 178 of the 1978 Election Code
read as follows: "Sec. 178. Prohibited Acts. The following shall
be guilty of an election offense:
6. p. 124, Rollo.
7. Lacsamana, vs. Baltazar, 92 Phil. 32; Wilhemsen vs. Baluyot, 83
SCRA 38.
8. Lichauco vs. Apostol, 44 Phil. 138; Butuan Saw Mill Inc. vs. City of
Butuan, et al, 16 SCRA 755.
FIRST DIVISION
[G.R. No. 107979. June 19, 1995.]
DANILO F. GATCHALIAN , petitioner, vs. COURT OF APPEALS,
JUDGE IBARRA S. VIGILIA (BRANCH 17, RTC of BULACAN)
and GREGORIO N. ARUELO, JR., respondents.
SYLLABUS
1. ELECTION LAW; ELECTION PROTEST; PERIOD TO FILE
PETITION THEREFOR; SUSPENDED BY THE FILING OF PRE-
PROCLAMATION CASE. Gatchalian claims that the election
protest was led only on June 2, 1992 or nineteen days after his
proclamation on May 13, 1992 as Vice Mayor of Balagtas, Bulacan
in violation of Section 3, Rule 35 of the COMELEC Rules of
Procedure. Petitioner's contention is without merit . Said Section 3,
Rule 35 provides as follows: "Period to le petition. The petition
shall be led within ten (10) days following the date of proclamation
of the results of the election." Under the above-cited section, Aruelo
had ten days from May 13, 1992 to le an election protest. Instead of
ling an election protest, Aruelo led with the COMELEC a pre-
proclamation case against Gatchalian on May 22, 1992, or nine days
after May 13, 1992. The ling of the pre-proclamation case suspended
the running of the period within which to le an election protest or
quo warranto proceedings (B.P. Blg. 881, Sec. 248). Aruelo received
the COMELEC resolution denying his pre-proclamation petition on
June 22, 1992. Hence, Aruelo had only one day left after June 22,
1992 within which to le an election protest. However, it will be noted
that Aruelo led on June 2, 1992 with the trial court an election protest
ex abudante cautela.
2. ID.; ID.; SHALL BE DISMISSED FOR FAILURE TO PAY
FILING FEE. Under Section 9, Rule 35 of the COMELEC Rules
of Procedure, a protestant has to pay the following: a) ling fee of
P300.00; b) legal research fee; and c) additional ling fee if there be a
claim for damages or attorney's fees. Aruelo, upon ling the election
protest with the trial court on June 2, 1992, paid the following
amounts:
O.R. No. 2084419-R
Amount
P450.00 Docket Fee-Judiciary Development Fund
8760129S 150.00 1407317 10.00 1406063 5.60 2084420 46.00
From the above itemization, it is clear that Aruelo failed to pay the
ling fee of P300.00 for the election protest prescribed by the
COMELEC Rules of Procedure. The amount of P600.00, consisting
of P450.00 (Judiciary Development Fund) and P150.00 (General
Fund), refers to the docket fee for Aruelo's claim for attorney's fees
in the amount of P100,000.00 in accordance with the schedule
provided for in Section 7(a), Rule 141 of the Revised Rules of Court
(Cf. Rule 35, Section 9, third paragraph, COMELEC Rules of
Procedure). The trial court cannot simply deduct from the P600.00
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the ling fee of P300.00 because the amount is speci cally allocated by
law (P.D. No. 1949) and by Supreme Court Administrative Circular
No. 31-90 dated October 15, 1990 to the Judiciary Development
Fund and the General Fund. A separate set of receipts is used for the
collection of docket fees. It is the payment of the ling fee that vests
jurisdiction of the court over the election protest, not the payment of
the docket fees for the claim of damages and attorney's fees. For
failure to pay the ling fee prescribed under Section 9, Rule 35 of the
COMELEC Rules of Procedure, the election protest must be
dismissed. Under Section 9, Rule 35 of the COMELEC Rules of
Procedure, "[n]o protest . . . shall be given due course without the
payment of a ling fee in the amount of three hundred pesos (P300.00)
for each interest." In Pahilan v. Tabalba, 230 SCRA 205 (1994), we
had occasion to rule as follows: "In the case now before us, and in
election cases in general, it is not the amount of damages, if any, that
is sought to be recovered which vests in the courts the jurisdiction to
try the same. Rather, it is the nature of the action which is
determinative of jurisdiction."
DECISION
QUIASON, J : p
dismiss and ordered him to le his answer within ve days from notice
thereof. Gatchalian's motion for reconsideration was denied on
August 3, 1992.
On August 6, 1992, Gatchalian led before the Court of Appeals, a
petition for certiorari (CA -G.R. SP No. 28621) alleging grave abuse
of discretion on the part of the trial court in denying petitioner's
motion to dismiss as well as his motion for reconsideration.
On November 24, 1992, the Court of Appeals rendered its decision
concluding that there was no grave abuse of discretion on the part of
the trial court in denying Gatchalian's motion to dismiss. It further
ruled that the election protest was timely led and that Gatchalian's
averment that the election protest should be dismissed on the ground
of non-payment of filing fee was devoid of merit.
Hence, this petition.
II
Gatchalian claims that the election protest was led only on June 2,
1992 or nineteen days after his proclamation on May 13, 1992 as
Vice Mayor of Balagtas, Bulacan in violation of Section 3, Rule 35
of the COMELEC Rules of Procedure.
Petitioner's contention is without merit . Said Section 3, Rule 35
provides as follows:
"Period to le petition. The petition shall be led within ten (10) days
following the date of proclamation of the results of the election."
Under the above-cited section, Aruelo had ten days from May 13,
1992 to le an election protest. Instead of ling an election protest,
Aruelo led with the COMELEC a pre-proclamation case against
Gatchalian on May 22, 1992, or nine days after May 13, 1992. The
ling of the pre-proclamation case suspended the running of the
period within which to le an election protest or quo warranto
proceedings (B.P. Blg. 881, Sec. 248). Aruelo received the
COMELEC resolution denying his pre-proclamation petition on June
22, 1992. Hence, Aruelo had only one day left after June 22, 1992
within which to le an election protest. However, it will be noted that
Aruelo led on June 2, 1992 with the trial court an election protest ex
abudante cautela.
Gatchalian further contends that the Court of Appeals should have
dismissed the election protest for failure of Aruelo to pay the ling fee
of P300.00 as required by Rule 35, Section 9 of the COMELEC
Rules of Procedure.
This contention of petitioner is meritorious.
Section 9, Rule 35 of the COMELEC Rules of Procedure provides:
"Filing fee. No protest, counter-protest, or protest-in-intervention shall
be given due course without the payment of a ling 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.
If a claim for damages and attorney's fees are set forth in a protest,
counter- protest or protest-in-intervention, an additional ling fee shall be
paid in accordance with the schedule provided for in the Rules of Court in
the Philippines."
Under said Rule, a protestant has to pay the following: a) ling fee of
P300.00; b) legal research fee; and c) additional ling fee if there be a
claim for damages or
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attorney's fees.
Aruelo, upon ling the election protest with the trial court on June 2,
1992, paid the following amounts:
O.R. NO. 2084419-R
Amount
P450.00 Docket Fee-Judiciary Development Fund
8760129S 150.00 1407317 10.00 1406063 5.60 2084420 46.00
From the above itemization, it is clear that Aruelo failed to pay the
ling fee of P300.00 for the election protest prescribed by the
COMELEC Rules of Procedure.
The amount of P600.00, consisting of P450.00 (Judiciary
Development Fund) and P150.00 (General Fund), refers to the
docket fee for Aruelo's claim for attorney's fees in the amount of
P100,000.00 in accordance with the schedule provided for in Section
7(a), Rule 141 of the Revised Rules of Court (Cf. Rule 35, Section 9,
third paragraph, COMELEC Rules of Procedure).
The trial court cannot simply deduct from the P600.00 the ling fee of
P300.00 because the amount is speci cally allocated by law (P.D. No.
1949) and by Supreme Court Administrative Circular No. 31-90
dated October 15, 1990 to the Judiciary Development Fund and the
General Fund. A separate set of receipts is used for the collection of
docket fees.
It is the payment of the ling fee that vests jurisdiction of the court
over the election protest, not the payment of the docket fees for the
claim of damages and attorney's fees. For failure to pay the ling fee
prescribed under Section 9, Rule 35 of the COMELEC Rules of
Procedure, the election protest must be dismissed. Under Section 9,
Rule 35 of the COMELEC Rules of Procedure, "[n]o protest . . .
shall be given due course without the payment of a ling fee in the
amount of three hundred pesos (P300.00) for each interest."
In Pahilan v. Tabalba, 230 SCRA 205 (1994), we had occasion to
rule as follows:
"In the case now before us, and in election cases in general, it is not the
amount of damages, if any, that is sought to be recovered which vests in
the courts the jurisdiction to try the same. Rather, it is the nature of the
action which is determinative of jurisdiction."
WHEREFORE, the petition is GRANTED. The decision of the Court
of Appeals in CA-G.R. No. SP No. 28621 is SET ASIDE. Civil Case
No. 343-M-92 of the Regional Trial Court, Branch 17, Malolos,
Bulacan is DISMISSED.
SO ORDERED.
Padilla and Bellosillo, JJ., concur. Davide, Jr., concurs in the result.
Kapunan, J., took no part.
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EN BANC
[G.R. No. L-25444. January 31, 1966.]
WENCESLAO RANCAP LAGUMBAY, petitioner, vs. THE
COMMISSION ON ELECTIONS and CESAR CLIMACO,
respondents.
Wenceslao R. Lagumbay for the petitioner. Ambrosio Padilla for the
respondents.
SYLLABUS
1. ELECTION LAWS; JURISDICTION; ELECTION FRAUDS.
Frauds in the holding of election should be settled by the
corresponding courts or electoral tribunals where testimonial or
documentary evidence is necessary; but where the fraud is so
palpable from the return itself, there is no reason to give it prima
facie value.
2. ID.; ID.; FALSE OR FABRICATED RETURNS; DUTY OF THE
COMMISSION ON ELECTIONS TO REJECT THEM. Where
the returns were obviously false or fabricated, the Commission on
Elections has the power and duty to reject them.
DECISION
BENGZON, J : p
precincts."
We opined that the election result in said precincts as reported, was
utterly improbable and clearly incredible. For it is not likely, in the
ordinary course of things, that all the electors of one precinct would,
as one man, vote for all the eight candidates of the Liberal Party,
without giving a single vote to one of the eight candidates of the
Nacionalista Party. Such extraordinary coincidence was quite
impossible to believe, knowing that the Nacionalista Party had and
has a nationwide organization, with branches in every province, and
was, in previous years, the party in power in these islands.
We also know from our experience in examining ballots in the three
Electoral Tribunals (Presidential, Senate, and House) that a large
portion of the electors do not fill all the blanks for senators in their
ballots. Indeed, this observation is confirmed by the big differences
in the votes received by the eight winning senators in this as well as
in previous national elections;2 almost a million votes between the
first place and the eight. Furthermore, in 1965, the total number of
electors who cast their votes was 6,833,369 (more or less). If every
voter had written eight names on his ballot, the total number of votes
cast for all the candidates would be that number multiplied by 8,
namely 54,666,952. But the total number of votes tallied for the
candidates for senator amounted to 49,374,942 only. The difference
between the two sums represents the number of ballots that did not
contain eight names for senators. In other words, some 5 million
ballots did not carry eight names. Of course, this is a rough estimate,
because some ballots may have omitted more names, in which case,
the number of incomplete ballots would be less. But the general idea
and the statistical premise is there.
The same statistical result is deducible from the 1963 election data:
total number of electors who voted, 7,712,019; if each of them
named eight senators, the total votes tallied should have been
61,696,152, and yet the total number tallied for all the senatorial
candidates was 45,812,470 only. A greater number of incomplete
ballots.
It must be noted that this is not an instance wherein one return gives
to one candidate all the votes in the precinct, even as it gives exactly
zero to the other. This is not a case where some senatorial candidates
obtain zero exactly, while some others receive a few scattered votes.
Here, all the eight candidates of one party garnered all the votes,
each of them receiving exactly the same number; whereas all the
eight candidates of the other party got precisely nothing.
The main point to remember is that there is no blockvoting
nowadays.
What happened to the vote of the Nacionalista inspector? There was
one in every precinct. Evidently, either he became a traitor to his
party, or was made to sign a false return by force or other illegal
means. If he signed voluntarily, but in breach of faith, the
Nacionalista inspector betrayed his party; and, any voting or
counting of ballots therein, was a sham and a mockery of the national
suffrage.
Hence, denying prima facie recognition to such returns on the ground
that they are manifestly fabricated or falsified, would constitute a
practical approach to the Commission's mission to insure free and
honest elections.
In Mitchell vs. Stevens, supra, the returns showed a noticeable
excess of votes over the number of registered voters, and the court
rejected the returns as obviously "manufactured". Why? The excess
could have been due to the fact that, disregarding all pertinent data,
the election officers wrote the number of votes their fancy dictated;
and so
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Separate Opinions
BARRERA, J., concurring:
I vote with the majority, for, as the dissenting opinion of Mr. Justice
Jose P. Bengzon points out, the line must be drawn somewhere and
because I believe the Chief Justice has traced it at the point where it
can at all be reasonably placed, where logic and experience both
direct it to be. I take it that Justice Bengzon does not question the
logic of the prevailing doctrine that the board of canvassers can
legally discard "obviously manufactured" returns as he accepts the
exercise of that power where the returns report a number of votes
cast in excess of the number of registered voters. He merely objects
to the extension of that power to the situation obtaining in the present
case where in more than 50 precincts in the same provinces where
our experience proves election has never been without extensive
frauds, the returns disclose uniformly 100% voting, 100% in favor of
100% of the candidates of one party and 100% zero for 100% of the
candidates of the other party. 'And the basis of his objection is that
this result is not physically or theoretically impossible and could
possibly re ect the actual voting, fraudulently as it may be, the
solution of which he states, lies with the Electoral tribunal. My
answer is, if physical or theoretical impossibility is to be the
criterion, then returns evincing greater number of votes cast than
registered voters should not also be discarded as it is theoretically
possible that with our experience regarding ying voters, ballots could
possibly be cast in excess of the registered voters, which constitutes
likewise, a fraud that could be corrected in an election contest. Then
where shall we draw the line? or shall we draw no line at all as
insinuated by Justice Regala in his, own dissenting opinion, and
leave all questions relating to returns, to the corresponding electoral
tribunal?
Both dissents express fear as to the consequences of the majority
opinion, suggesting that the board of canvassers could become the
tyrannical arbiters of the result of elections. In my opinion, if the line
is not drawn as it has been done in the majority opinion, there would
be the greater evil of the tyranny of the board of inspectors who
prepare the returns in the hundreds of thousands of electoral
precincts, who, because of their number and their widespread
distribution all over the country, are more prone to political influence
and more difficult to subject to scrutiny and supervision of those
entrusted by law to
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preserve clean, honest and free elections. As between the two
tyrannies, possible if we adopt a too sanctimonious regard for the
election returns, that of the board of canvassers, less numerous in
number and composed of sworn public officials, seems to be the less
pervasive and pernicious as the perpetuators are likely to be more
amenable to reason, supervision and control.
BENGZON, J. P., J., dissenting:
As once observed by a renowned jurist: "In law, as in life, lines have
to be drawn. But the fact that a line has to be drawn somewhere does
not justify its being drawn anywhere. The line must follow some
direction of policy, whether rooted in logic or experience."1 For me,
the majority view in the case at bar, by adopting the criterion of
"statistical probabilities" in drawing the line between returns
"obviously manufactured" and returns not of that kind, has drawn a
shifting, movable and uncertain line, liable to run without direction
of policy, without regard to logic and contrary to experience.
Furthermore, in my view, the majority would, against the provision
of our Constitution, share the Senate Electoral Tribunal's exclusive
power to judge all contests relating to the election, returns and
qualifications of Senators. For it has in effect exercised, and
authorized boards of canvassers likewise to exercise, the power to
annul votes on the ground of fraud or irregularity in the voting a
power that I consider alien to the functions of a canvassing body and
proper only to a tribunal acting in an electoral protest. For these
reasons, I am impelled to respectfully express the following
dissenting opinion, in accordance with the reservation made at the
time the resolution of this Court was adopted.
The present suit is clearly a petition for certiorari under Rule 65, not
an appeal by certiorari under Rule 43 of the Rules of Court. For its
ground it alleges "a grave abuse of discretion amounting to excess of
jurisdiction".2 Such a ground is proper only in a petition for certiorari
as a special civil action and not as an appeal. For that matter, the
petition does not cavil the fact that it seeks an extraordinary writ. It
states that "Petitioners have no other plain, speedy and adequate
remedy in the ordinary course of law"3 and does not even bother to
indicate that a notice of appeal has been filed with the Commission
on Elections, as required by Section 2 of Rule 43 in cases of appeals.
It is captioned "For Certiorari and Prohibition".4 Needless to say,
prohibition cannot be joined with appeal, for such a remedy can be
resorted to only where appeal does not lie. The Supreme Court,
under the Constitution, has no general powers of supervision over the
Commission on Elections except those specifically granted by the
Constitution, that is to review the decisions, orders and rulings of the
Commission which may be brought up properly before the Supreme
Court (Nacionalista Party vs. De Vera, 85 Phil. 126, 129). In this
instance, no appeal from the decision of the Commission has
properly been taken to this Court.
As raised by the pleadings, therefore, the point at issue is this: Did
the Commission on Elections gravely abuse its discretion in finding
the election returns in question to be genuine?
As a board of canvassers with respect to the election of Senators,
pursuant to Section 166 of the Revised Election Code, the
Commission on Elections is a ministerial body, duty- bound to accept
the returns transmitted to it in due form, and to ascertain and declare
the result only as it appears therefrom (Nacionalista Party vs.
Commission on Elections, 85 Phil. 149). A prerequisite to the
performance of said ministerial functions, however, is the power to
determine the genuineness of the returns. For this reason, as a step
sine qua non
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to the fulfillment of its proper task, it can also exercise the quasi-
judicial power of deciding whether a particular return is genuine.
Nonetheless, in so deciding, it cannot go behind the returns. In short,
the genuineness of the returns as far as canvassing is concerned
is to be determined solely from the face of said returns. The
rulings to this effect are clear:
"It is settled beyond controversy that canvassers cannot go behind the
returns. The returns provided for by law are the sole and exclusive
evidence from which a canvassing board or official can ascertain and
declare the result. The canvassers are not authorized to examine or
consider papers or documents which are transmitted to them with the
returns, or as returns, but which under the statutes do not constitute part of
the returns." (Dizon vs. Provincial Board of Canvassers, 52 Phil. 47, 58.
See also 29 C.J.S. 659; McCrary on Elections, pp. 198-199.)
So it is that all the instances petitioner cites of a board of canvassers
being held justified in refusing to count a return, involve returns that
can be pronounced non-genuine simply on the basis of what appears
therefrom. For purposes of this case, the noteworthy example is that
mentioned in Nacionalista Party vs. Commission on Elections, supra:
"where the returns are obviously manufactured, as where they show
a great excess of votes over what could legally have been cast".
For me, there is no doubt that in such a case the returns betray their
falsity by their very contents. They set forth as the result of the
voting in a precinct something which can be seen to be false without
having to examine anything but the returns themselves. And the
reason is simple. It is impossible for the votes to have in fact been as
the returns assert them.
Petitioner would however extend the same treatment to returns where
100 per cent voting is shown and the candidates of one party are
credited with all such votes. In my opinion the situation is radically
different. For this time it is impossible for such a voting to have in
fact taken place. Consequently, it is possible for the returns to be in
fact genuine.
The discussion by the majority opinion of "statistical probabilities"
does not establish that the votes inside the ballot boxes are not or
cannot be as the returns say they are. Resort to the ballot boxes
themselves would be needed to prove that the returns are false, that
is, that in fact the votes are not as the returns state them to be.
A conclusion, then, that the aforesaid returns are obviously
manufactured, does not necessarily follow from the 100 per cent
voting that they set forth. Appreciation of probabilities, statistical or
otherwise, can at most only classify such voting as highly
improbable.
Stated otherwise, when the point at issue is whether it is possible or
impossible, the Commission on Elections or the Supreme Court is
empowered to find that a return is obviously manufactured, in that it
states what is impossible. Not so where the question is whether it is
probable or improbable, no matter the degree of improbability, in
which case the subject matter pertains to the Electoral Tribunal. In
the former, one deals with a certainty, namely, the impossibility. In
the latter, one is faced with something debatable, namely, probability
or improbability, which necessarily entails an element of doubt, and
to resolve said doubt perforce one has to open the ballot boxes. As
long as the voting stated in them is a possibility, returns in due form
must be accepted by the board of canvassers.
It is true that chances are that in cases of 100 percent voting, fraud,
intimidation or other
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4. This answers the erroneous claim that our decision usurps functions
of the Senate Electoral Tribunal.
2. Petition, p. 6.
3. Petition, p. 10.
4. Petition, p. 1.
5. 1965 Elections: Bailen, Cavite Precinct No. 10, all Liberals got
255 votes, all others got zero. Precinct No. 12, all Liberals got 228,
votes, all others got zero; Silang, Cavite Precinct No. 34, all
Liberals got 287 votes, all others zero; Ternate, Cavite Precinct
No. 7, all Liberals got 90 votes, all others zero. Also, in 1961
Elections: Saramain, Lanao del Sur Precinct No. 1, NP Senatorial
Candidates all got 583 votes each; LPs all got zero.
CARPIO, J : p
DECISION
The Case
EN BANC
[G.R. No. 164858. November 16, 2006.]
HENRY P. LANOT, substituted by MARIO S. RAYMUNDO,
petitioner,
CHARMIE Q. BENAVIDES, petitioner-intervenor, vs.
COMMISSION ON ELECTIONS and VICENTE P. EUSEBIO,
respondents.
5.the Regional Director of NCR, and the Election Officers of Pasig City to
immediately implement the foregoing directives[;]
6.the Law Department through its Director IV, Atty. ALIODEN DALAIG
to file the necessary information against Vicente P. Eusebio before the
appropriate court. TDcHCa
We agree with Eusebio that the COMELEC En Banc did not commit
grave abuse of discretion in issuing its 21 May 2004 order. The
COMELEC has the discretion to suspend the proclamation of the
winning candidate during the pendency of a disqualification case
when evidence of his guilt is strong. 33 However, an order suspending
the proclamation of a winning candidate against whom a
disqualification case is filed is merely provisional in nature and can
be lifted when warranted by the evidence. 34
Propriety of the Dismissal of the Disqualification Case and of the
Referral to the COMELEC
Law Department
Lanot filed the petition for disqualification on 19 March 2004, a little
less than two months before the 10 May 2004 elections. Director
Ladra conducted hearings on the petition for disqualification on 2, 5
and 7 April 2004. Director Ladra submitted her findings and
recommendations to the COMELEC on 4 May 2004. The
COMELEC First Division issued a resolution adopting Director
Ladra's recommendations on 5 May 2004. Chairman Abalos
informed the pertinent election officers of the COMELEC First
Division's resolution through an Advisory dated 8 May 2004.
Eusebio filed a Motion for Reconsideration on 9 May 2004.
Chairman Abalos issued a memorandum to Director Ladra on
election day, 10 May 2004, and enjoined her from implementing the
5 May 2004 COMELEC First Division resolution. The petition for
disqualification was not yet finally resolved at the time of the
elections. Eusebio's votes were counted and canvassed, after which
Eusebio was proclaimed as the winning candidate for Pasig City
Mayor. On 20 August 2004, the COMELEC En Banc set aside the
COMELEC First Division's order and referred the case to the
COMELEC Law Department.
In its 20 August 2004 resolution, the COMELEC En Banc relied
heavily on the timing of the filing of the petition. The COMELEC En
Banc invoked Section 1 of Resolution No. 2050, which states:
1.Any complaint for the disqualification of a duly registered candidate
based upon any of the grounds specifically enumerated under Section 68 of
the
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2.ehaving violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e,
k, v and cc sub-paragraph 6 of the Omnibus Election Code, shall be
disqualified from continuing as a candidate, or if he has been elected, from
holding the office.
xxx xxx xxx
Indeed, what the COMELEC did in its 20 August 2004 resolution
was contrary to "the interest of justice and . . . speedy disposition of
cases." Resolution No. 2050 referring the electoral aspect to the Law
Department is procedurally inconsistent with Resolution 6452
delegating reception of evidence of the electoral aspect to the
Regional Election Director. The investigation by the Law
Department under Resolution No. 2050 produces the same result as
the investigation under Resolution 6452 by the Regional Election
Director. Commissioner Tuason's dissent underscored the
inconsistency between the avowed purpose of Resolution 6452 and
the COMELEC En Banc's 20 August 2004 resolution:
. . . [T]he preliminary investigation for purposes of finding sufficient
ground for [Eusebio's] disqualification, has already been accomplished by
the RED-NCR prior to the election. There also appears no doubt in my
mind, that such recommendation of the investigating officer, RED-NCR,
was substantive and legally sound. The First Division agreed with the
result of the investigation/recommendation, with the facts of the case
clearly distilled in the assailed resolution. This, I likewise found to be in
accord with our very own rules and the jurisprudential doctrines
aforestated. There could be no rhyme and reason then to dismiss the
electoral aspect of the case (i.e., disqualification) and refer the same to the
Law Department for preliminary investigation. As held in Sunga, clearly,
the legislative intent is that the COMELEC should continue the trial and
hearing of the disqualification case to its conclusion, i.e., until judgment is
rendered thereon. The criminal aspect of the case is an altogether different
issue.
Sunga said the reason is obvious: A candidate guilty of election offenses
would be undeservedly rewarded, instead of punished, by the dismissal of
the disqualification case against him simply because the investigating body
was
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unable, for any reason caused upon it, to determine before the election if
the offenses were indeed committed by the candidate sought to be
disqualified. All that the erring aspirant would need to do is to employ
delaying tactics so that the disqualification case based on the commission
of election offenses would not be decided before the election. This
scenario is productive of more fraud which certainly is not the main intent
and purpose of the law. 41
We agree with Lanot that the COMELEC committed grave abuse of
discretion when it ordered the dismissal of the disqualification case
pending preliminary investigation of the COMELEC Law
Department. A review of the COMELEC First Division's 5 May
2004 resolution on Eusebio's disqualification is in order, in view of
the grave abuse of discretion committed by the COMELEC En Banc
in its 20 August 2004 resolution.
Rightful Pasig City Mayor
Eusebio's Questioned Acts
We quote the findings and recommendations of Director Ladra as
adopted by the COMELEC First Division:
The questioned acts of [Eusebio] are as follows:
1)The speech uttered on February 14, 2004 during the meeting dubbed as
"Lingap sa Barangay" in Barangay San Miguel, Pasig City wherein
[Eusebio] allegedly asked the people to vote for him and solicited for their
support . . . :
xxx xxx xxx
2)Another speech given on March 17, 2004 in ROTC St., Rosario, Pasig
City wherein [Eusebio] again allegedly uttered defamatory statements
against co-[candidate] Lanot and campaigned for his (respondent's) and his
group's candidacy.
xxx xxx xxx
3)He caused to be published in leading newspapers about a survey
allegedly done by Survey Specialist, Inc. showing him to be leading in the
mayoralty race in Pasig City.
xxx xxx xxx
4)He paid a political advertisement in the Philippine Free Press in the
amount of P193,660.00 as published in its issue dated February 7, 2004.
xxx xxx xxx
5)The display of billboards containing the words "Serbisyo Eusebio" and
"ST" which means "Serbisyong Totoo" before the start of the campaign
period.
xxx xxx xxx
6)Posters showing the respondent and his running mate Yoyong Martirez
as well those showing the name "KA ENTENG EUSEBIO" and "BOBBY
EUSEBIO" in connection with the dengue project were posted everywhere
even before the start of the campaign period.
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only apply to acts done on such last day, which is before the start of
the campaign period and after at least one candidate has filed his
certificate of candidacy. This is perhaps the reason why those
running for elective public office usually file their certificates of
candidacy on the last day or close to the last day.
There is no dispute that Eusebio's acts of election campaigning or
partisan political activities were committed outside of the campaign
period. The only question is whether Eusebio, who filed his
certificate of candidacy on 29 December 2003, was a "candidate"
when he committed those acts before the start of the campaign period
on 24 March 2004.
Section 11 of Republic Act No. 8436 ("RA 8436") moved the
deadline for the filing of certificates of candidacy to 120 days before
election day. Thus, the original deadline was moved from 23 March
2004 to 2 January 2004, or 81 days earlier. The crucial question is:
did this change in the deadline for filing the certificate of candidacy
make one who filed his certificate of candidacy before 2 January
2004 immediately liable for violation of Section 80 if he engaged in
election campaign or partisan political activities prior to the start of
the campaign period on 24 March 2004?
Section 11 of RA 8436 provides:
SECTION 11.Official Ballot. The Commission shall prescribe the size
and form of the official ballot which shall contain the titles of the positions
to be filled and/or the propositions to be voted upon in an initiative,
referendum or plebiscite. Under each position, the names of candidates
shall be arranged alphabetically by surname and uniformly printed using
the same type size. A fixed space where the chairman of the Board of
Election Inspectors shall affix his/her signature to authenticate the official
ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to participate in the
election shall not be later than one hundred twenty (120) days before
the elections: Provided, That, any elective official, whether national or
local,
running for any office other than the one which he/she is holding in a
permanent
capacity, except for president and vice-president, shall be deemed resigned
only
upon the start of the campaign period corresponding to the position for
which
he/she is running: Provided, further, That, unlawful acts or omissions
applicable to a candidate shall take effect upon the start of the
aforesaid campaign period: Provided, finally, That, for purposes of the
May
11, 1998 elections, the deadline for filing of the certificate of candidacy for
the
positions of President, Vice-President, Senators and candidates under the
party-
list system as well as petitions for registration and/or manifestation to
participate
in the party-list system shall be on February 9, 1998 while the deadline for
the
filing of certificate of candidacy for other positions shall be on March 27,
1998.
IATSH E
The official ballots shall be printed by the National Printing Office and/or
the Bangko Sentral ng Pilipinas at the price comparable with that of
private printers under proper security measures which the Commission
shall adopt. The Commission may contract the services of private printers
upon certification by the National Printing Office/Bangko Sentral ng
Pilipinas that it cannot meet the printing requirements. Accredited political
parties and deputized citizens' arms of the Commission may assign
watchers in the printing, storage and distribution of official ballots.
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To prevent the use of fake ballots, the Commission through the Committee
shall ensure that the serial number on the ballot stub shall be printed in
magnetic ink that shall be easily detectable by inexpensive hardware and
shall be impossible to reproduce on a photocopying machine, and that
identification marks, magnetic strips, bar codes and other technical and
security markings, are provided on the ballot.
The official ballots shall be printed and distributed to each city/
municipality at the rate of one (1) ballot for every registered voter with a
provision of additional four (4) ballots per precinct. 44 (Emphasis added)
Under Section 11 of RA 8436, the only purpose for the early filing of
certificates of candidacy is to give ample time for the printing of
official ballots. This is clear from the following deliberations of the
Bicameral Conference Committee:
SENATOR GONZALES. Okay. Then, how about the campaign period,
would it be the same[,] uniform for local and national officials?
THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to
retaining it at the present periods.
SENATOR GONZALES. But the moment one files a certificate of
candidacy, he's already a candidate, and there are many prohibited acts on
the part of candidate.
THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .
SENATOR GONZALES. And you cannot say that the campaign period
has not yet began [sic].
THE CHAIRMAN (REP. TANJUATCO). If we don't provide that the
filing of the certificate will not bring about one's being a candidate.
SENATOR GONZALES. If that's a fact, the law cannot change a fact.
THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that
the filing of the certificate of candidacy will not result in that official
vacating his position, we can also provide that insofar he is concerned,
election period or his being a candidate will not yet commence. Because
here, the reason why we are doing an early filing is to afford enough time
to prepare this machine readable ballots.
So, with the manifestations from the Commission on Elections, Mr.
Chairman, the House Panel will withdraw its proposal and will agree to the
120-day period provided in the Senate version.
THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.
xxx xxx xxx
SENATOR GONZALES. How about prohibition against campaigning or
doing partisan acts which apply immediately upon being a candidate?
THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this
provision is just to afford the Comelec enough time to print the ballots, this
provision does not intend to change the campaign periods as presently, or
rather election periods as presently fixed by existing law.
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witnesses Hermogenes Garcia and Nelia Sarmiento before the start of the
campaign period.
8)Stickers of [Eusebio] were likewise pasted all over the city before the
start of the campaign period.
xxx xxx xxx
9)[Eusebio] engaged in vote-buying by distributing shoes to the students
while telling the parents that by way of gratitude, they should vote for him.
The affidavits of Ceferino Tantay marked as Exh. "M" and Flor
Montefalcon, Norie Altiche and Myrna Verdillo marked as Exh. "O" are
uncontroverted. Their statement that free shoes were given to the students
of Rizal High School was corroborated by the Manila Bulletin issue of
February 6, 2004 which showed the picture of the respondent delivering
his speech before a group of students.
xxx xxx xxx 50 (Emphasis in the original)
Based on the findings of Director Ladra, the questioned acts
attributed to Eusebio all occurred before the start of the campaign
period on 24 March 2004. Indeed, Director Ladra applied Section 80
of the Omnibus Election Code against Eusebio precisely because
Eusebio committed these acts "outside" of the campaign period.
However, Director Ladra erroneously assumed that Eusebio became
a "candidate," for purposes of Section 80, when Eusebio filed his
certificate of candidacy on 29 December 2003. aSAHCE
SO ORDERED.
Sandoval-Gutierrez, Carpio Morales and Velasco, Jr., JJ., concur.
Panganiban, C.J., see separate opinion.
Puno, J., joins J. Tinga.
Quisumbing, J., also concurs with CJ's opinion.
Ynares-Santiago, J., joins separate opinion of J. Tinga. Austria-
Martinez, J., joins C.J. Panganiban in his separate opinion. Corona,
J., joins with Justice Tinga.
Callejo, Sr., J., concurs with CJ's opinion.
Azcuna, J., joins Justice Tinga in his separate opinion.
Tinga, J., please see separate opinion.
Chico-Nazario and Garcia, JJ. join J. Tinga in his separate opinion.
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Separate Opinions
PANGANIBAN, J.:
While agree "in the result" of the ponencia, which recommends that
the Petition be dismissed, I have some reservations with regard to the
discussion of the issue of whether Eusebio violated Section 80 of the
Omnibus Election Code.
The ponencia states that "[u]nder Section 11 of RA 8436, Eusebio
became a 'candidate,' for purposes of Section 80 of the Omnibus
Election Code (OEC), only on 23 March 2004, the last day for filing
certificates of candidacy." Pursuant to this statement, Eusebio,
despite having filed a Certificate of Candidacy on December 29,
2003, was still not deemed a candidate until the last day for filing
certificates of candidacy. This proposition seems to disregard the
definition of a "candidate" as stated in Section 79 (a). 1 The bases
given in the ponencia 2 for this action are (1) the law prior to RA
8436; and (2) liberal construction, in favor of the accused.
In my view, these grounds are insufficient. First, being the more
current law, Republic Act 8436 now conveys the legislative will.
Hence, the prior law, if inconsistent with it, can no longer be applied.
Therefore, the earlier law, which set the deadline of the filing of the
certificate of candidacy on the day before the beginning of the
campaign period, 3 can no longer be followed because the present
law has reset the deadline at 120 days before election day.
Candidates thus need to file only one certificate of candidacy. To
encourage, or to deem as proper, the filing of two certificates (the
first for purposes of the ballot and the second for all other purposes)
whether actual or in principle will merely promote
unnecessary waste and confusion.
Second, the present case concerns only the electoral and not the
criminal aspects, as very well differentiated in the ponencia. Hence, a
liberal interpretation of Section 80 is not called for. More important,
the determination of who is a candidate in relation to the filing of a
certificate of candidacy involves Section 79 of the OEC and
Republic Act 8436, not Section 80 of the OEC. Not being penal,
these provisions should not be construed liberally in favor of the
"accused."
Indeed, the deliberations on Republic Act 8436 show that the
lawmakers initially thought that the filing of a certificate of
candidacy to meet the deadline for purposes of the ballot will not
deem the filer a candidate for other purposes, particularly in
connection with a candidate's prohibited acts. This idea, however, did
not appear in the final approved version of the law. As it is, there
appears no basis or necessity for distinguishing when a person is
considered a candidate for the purposes of printing the ballots, on the
one hand; and for other purposes, on the other.
To stress, what came out in the final approved law as the Section 11
proviso, which reads as follows: "Provided, further, That, unlawful
acts or omissions applicable to a candidate shall take effect upon the
start of the aforesaid campaign period." The ponencia finds "no
necessity to apply in the present case this proviso . . . since the
present case can be resolved without applying the proviso in Section
11 of RA 8436." I believe, though, that the application of the proviso
has to be addressed in the present case if the merits are to be resolved
squarely. cADEHI
December 29, 2003. This inference is very clear from Section 79,
which has, not been repealed expressly or impliedly by
Republic Act 8436. Eusebio thus violated Section 80.
Be that as it may, the net result is that the acts mentioned in Section
80 cannot be deemed unlawful at any time because of the clause in
Section 11 of Republic Act 8436 that "unlawful acts or omissions
applicable to a candidate shall take effect upon the start of the
aforesaid campaign period"; and the fact that by definition the
unlawful acts in Section 80 of the OEC cannot be committed during
the campaign period. In other words, the foregoing proviso has been
impliedly repealed. Hence, there is no effective basis for
disqualifying Eusebio.
WHEREFORE, I vote to DISMISS the Petition. TINGA, J.:
In legal contemplation, petitions for disqualification of election
candidates are supposed to be filed, litigated and decided prior to the
proclamation of the candidate sought to be disqualified. Any attempt
to initiate or intervene in a petition for disqualification must be done
before the proclamation of the candidate. Yet Justice Carpio's
opinion now rules that even long after the candidate has been
proclaimed, any person who professes some interest may be allowed
to intervene. This is a ruling that would effectively lengthen the
adjudication of petitions for disqualification and encourage the
dilatory use of the intervention process even if the original petitioner
himself no longer has interest in pursuing the petition. The procedure
for disqualification was intended as a finite process, Justice Carpio's
opinion now makes it infinite.
I respectfully dissent insofar as Justice Carpio's opinion would
resolve the case on the merits, and submit that the petition should be
dismissed on the ground of mootness.
The petition for disqualification against respondent Vicente Eusebio
was originally filed by petitioner based on two provisions of the
Omnibus Election Code (Code), namely Sections 68 and 80. Section
80 declares as unlawful for any person to engage in an election
campaign or partisan political activity except during the campaign
period, while Section 68 authorizes the disqualification of any
candidate who violates Section 80. Moreover, Section 262 of the
Code provides that violation of Section 80 constitutes an election
offense, which in turn engenders criminal liability.
In the case at bar, petitioner, along with four other candidates in the
2004 Pasig City elections, timely filed the petition for
disqualification against respondent Mayor Vicente Eusebio (Eusebio)
well before the 2004 elections. The case had still been pending
before the COMELEC by the time Eusebio was proclaimed as the
winner in the mayoralty elections of that year. After the COMELEC
finally dismissed the petition for disqualification, Lanot elevated
such decision to the Court for review under Rule 64 of the Rules of
Civil Procedure, as was his right. However, none of the four co-
petitioners joined Lanot in his petition before this Court. Then, Lanot
was tragically assassinated on 13 April 2005.
Had Lanot been joined in his present petition by any of his original
co-petitioners, there would be no impediment in deciding this case
on the merits. Since they did not, there was nobody left with standing
to maintain this present petition upon Lanot's death. However, two
persons, Benavides and Raymundo, none of whom showed previous
interest to join or intervene in the petition while Lanot was still alive,
now seek to be admitted before this
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came out only second to private respondent. The fact, however, is that
there had been no proclamation at that time. Certainly, petitioner had, and
still has, an interest in ousting private respondent from the race at the time
he sought to intervene. . . . 7
Mercado clearly laid emphasis on the fact that the attempt at
intervention therein was viable as it was made before the
proclamation of a winning candidate. Had Mercado sought to
intervene in the proceedings before the COMELEC after the
proclamation, would the intervention have prospered? Considering
that the Court expressly took into account that there had been no
proclamation yet when the intervention was filed, it stands to reason
that the intervention would not have prospered if it was filed after
proclamation. IcaHTA
Omnibus Election Code. The petition had not yet been finally
decided when B was
proclaimed as the clear winner against A. Out of a desire for peace
within the city, A
decided to concede B's victory and to withdraw the petition for
disqualification a most
desirable scenario even if perhaps atypical. However, following
Justice Carpio's opinion, a
person such as C, a non-candidate who nonetheless is an estranged
creditor of B, could
very well intervene and substitute in behalf of A and pursue the
disqualification case. There
is likewise no stopping a D or an E to eventually follow suit even if
C eventually dies or
loses interest in pursuing the protest. Justice Carpio's opinion would
allow a petition for
disqualification to be litigated in perpetuity, long after the
proclamation of a candidate, and
even after the parties who filed the petition have since lost interest in
continuing the same.
Da IACS
Let us further assume, for the sake of argument, that Lanot had not
died but that he had opted not to assail the challenged rulings of the
COMELEC. Benavides and Raymundo, desirous to see Eusebio
disqualified even though they had not participated in the
disqualification case, filed the petition for certiorari assailing the
COMELEC rulings. Such a course of action is instinctively awry,
Benavides and Raymundo clearly not having standing to challenge
the COMELEC rulings. Yet following Justice Carpio's opinion's
reasoning, Benavides and Raymundo would actually be authorized to
file and litigate the certiorari petition before this Court. After all,
Justice Carpio's opinion makes it clear that the only requisites for
intervention in a petition for disqualification are that the intervenors
are citizens of voting age or a duly registered party, organization or
coalition of political parties, and that no final judgment has yet been
rendered.
The way to preclude abuse or anomalies to the right to intervene in
disqualification cases is to stress a clear and equitable rule that
intervention after proclamation should not be permitted, just as the
filing of a petition for disqualification after proclamation is
prohibited. In other words, the proclamation as a bench mark
operates as a bar to the filing of the petition for disqualification as
well as to any motion for intervention therein. Such an interpretation,
which avoids inconvenient or absurd results, is desirable considering
the principle in statutory construction that "where there is ambiguity,
such interpretation as will avoid inconvenience and absurdity is to be
adopted."
There have been instances where the Court has adopted a liberal
stance in allowing for the substitution of a deceased party to an
election protest, as was authorized in cases such as De Mesa v.
Mencias 8 and Lomugdang v. Javier. 9 However, an election protest
stands as a different specie from a petition for disqualification.
Petitions for disqualifications are supposed to be resolved even prior
to the election itself, while election protests are necessarily
commenced only after the election is held. It would be improper to
rely on either De Mesa or Lomugdang to justify the sought-for
interventions in this case. These cases do establish the right to
substitution of an election protestee/protestant, yet it should be noted
that the parties who attempted to substitute in these cases were real
parties in interest, defined in Poe v. Arroyo as "those who would be
benefited or injured by the judgment, and the party who is entitled to
the avails of the suit." In fact, if we were to deem the doctrines on
substitution in protest cases as similarly controlling in this case, the
intervenors would have been denied the right to substitute the
deceased Lanot, following the latest precedent on that issue, Poe v.
Arroyo. The Court as the Presidential Electoral Tribunal held therein:
Rule 3, Section 16 is the rule on substitution in the Rules of Court. This
rule allows substitution by a legal representative. It can be gleaned from
the citation of this
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Both the electoral and the criminal aspects come to fore in this case.
The pending legal incidents were initiated by a petition for
disqualification filed by Lanot and four other candidates in the 2004
Pasig City elections. Subsequently, the COMELEC initiated an
investigation as to whether respondent Eusebio should be charged
with an election offense. Notably, the COMELEC has yet to find
cause to discharge Eusebio of his possible criminal liability for
committing an election offense. I submit that by dismissing the
present petition on the ground of mootness, the COMELEC would
retain the power and the duty to ascertain whether Eusebio may
indeed be criminally liable.
There is a public interest in seeing that candidates who commit
election offenses which also constitute grounds for disqualification,
are accordingly penalized and disqualified from office. I submit that
this interest may be protected in the criminal aspect of the
corresponding petition for disqualification. Unlike in the electoral
aspect wherein it is the individual petitioners who have legal interest
in maintaining the suit, it is the COMELEC itself which has the legal
interest to pursue the criminal aspect, as it is the poll body which has
exclusive power to investigate and to prosecute election offenses.
Should the petitioners die or withdraw from the petition for
disqualification, the COMELEC may still pursue the criminal aspect.
If the candidate in question is found guilty of the election offense, he
may be removed from office as a result, as well as face the
corresponding jail term.
The COMELEC in this case did observe that the evidence was strong
that respondent Eusebio was guilty of committing election offenses.
13 It is unfortunate that Justice Carpio's opinion, in deciding the
petition on the merits, has arrived at the contrary conclusion that
"Eusebio clearly did not violate Section 80 of the Omnibus Election
Code," and thus precluding further investigation or prosecution of
Eusebio. This conclusion was needlessly arrived at since the death of
Lanot should have already mooted the petition for disqualification
without prejudice to the right of the Comelec to investigate or
prosecute Eusebio for election offenses. aECSHI
22.Id. at 521-538.
23.G.R. 163302, 23 July 2004, 435 SCRA 98.
24.370 Phil. 625 (1999).
25.351 Phil. 310 (1998).
26.Rollo, Vol. 1, p. 95.
27.Id. at 11, 14-16.
28.See The COMELEC Rules of Procedure, Rule 25, Sec. 1; COMELEC
Resolution 6452 (2003). See also Mercado v. Manzano, 367 Phil. 132
(1999).
29.See Mercado v. Manzano, 367 Phil. 132 (1999).
30.See Lonzanida v. COMELEC, 370 Phil. 625 (1999); Sunga v.
COMELEC, 351 Phil. 310 (1998). See also Lomugdang v. Javier, 128 Phil.
424 (1967) and De Mesa, et al. v. Mencias, et al., 124 Phil. 1187 (1966).
Although the cases of Lomugdang and De Mesa concern election contests,
these case underscore this Court's policy of disregarding the statutorily
prescribed time limit in allowing petitions for substitution and petitions in
intervention. Moreover, in contrast to disqualification cases where the
issues may be raised by any voter or political party, election contests raise
questions which are personal to the protestant and protestee and may
arguably be considered extinguished by the death of either party. Yet
Lomugdang and De Mesa not only allowed substitution and intervention,
they further declared that the perceived urgency in deciding election cases
should give way to the ends of justice.
31.Rollo, Vol. 1, p. 161.
32.The COMELEC promulgated both Resolutions on 16 May 2004.
33.The Electoral Reforms Law of 1987, Section 6.
34.See Nolasco v. COMELEC, 341 Phil. 761 (1997).
35.Supra note 25, at 321-322.
36.378 Phil. 585, 598-600 (1999).
37.Omnibus Election Code, Section 265.
38.See Bagatsing v. COMELEC, supra note 35; Sunga v. COMELEC,
supra note 25; Nolasco v. COMELEC, supra note 33.
39.See Omnibus Election Code, Section 264. 40.See Bagatsing v.
COMELEC, supra note 37. 41.Rollo, Vol. 1, pp. 103-104.
42.Id. at 135-148.
43.See Nolasco v. COMELEC, supra note 33.
44.Republic Act No. 9006 now allows all elective public officials, local or
national, to hold on to their elective offices even after filing their
certificates of candidacy. Section 14 of RA 9006 provides:
SECTION 14. Repealing Clause. Sections 67 and 85 of the Omnibus
Election Code (Batas
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Pambansa Blg. 881) and Sections 10 and 11 of Republic Act No. 6646 are
hereby repealed. As a consequence, the first proviso in the third paragraph
of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws,
presidential decrees, executive orders, rules and regulations, or any part
thereof inconsistent with the provisions of this Act are hereby repealed or
modified or amended accordingly.
45.Minutes of Bicameral Conference Committee on Constitutional
Amendments, Revision of Codes and Laws, 16 December 1997, as
certified by Director Antonia P. Barros, Legislative Records and Archives
Service.
46.Omnibus Election Code, Section 262. 47.Rollo, Vol. 1, pp. 135, 139.
48.Id. at 142.
49.Id. at 143.
50.Id. at 143-146.
51.See Kare v. COMELEC, G.R. 157526, 28 April 2004, 428 SCRA 264;
Loreto v. Brion, 370 Phil. 727 (1999); Domino v. COMELEC, 369 Phil.
798 (1999); Reyes v. COMELEC, 324 Phil. 813 (1996); Aquino v.
COMELEC, G.R. No. 120265, 18 September 1995, 248 SCRA 400; Labo,
Jr. v. COMELEC, G.R. No. 105111, 3 July 1992, 211 SCRA 297; Abella v.
COMELEC, G.R. No. 100710, 3 September 1991, 201 SCRA 253; Labo,
Jr. v. COMELEC, G.R. No. 86564, 1 August 1989, 176 SCRA 1;
Geronimo v. Ramos, No. L-60504, 14 May 1985, 136 SCRA 435.
52.See Loreto v. Brion, 370 Phil. 727 (1999).
53.See Grego v. COMELEC, G.R. 125955, 19 June 1997, 274 SCRA 481.
54.See The Local Government Code, Republic Act No. 7160, Section 44
(1991). PANGANIBAN, J.:
1.Sec. 79. Definitions. As used in this Code:
"(a)The term "candidate" refers to any person aspiring for or seeking an
elective public office, who has filed a certificate of candidacy by himself or
through an accredited political party, aggroupment, or coalition of
parties[.]"
2.P. 29, ponencia
3.Section 75 of the Omnibus Election Code. TINGA, J.:
1.A brief comment on Raymundo's Motion for Substitution. I see no basis
in the Rules of Court for such substitution to be allowed on account of
Lanot's death. It is the heirs of the deceased who may be allowed to be
substituted for the deceased. See 1997 Rules of Civil Procedure, Rule 3,
Sec. 16. Apparently though, Justice Carpio's opinion is ready to equate
Raymundo's attempt at "substitution" as an action for "intervention", the
latter being a distinct remedial course of action.
2.See COMELEC RULES OF PROCEDURE, Rule 2, Sec. 2; emphasis
supplied. See also Section 5(B)(1), Comelec Resolution No. 6452, which
was in effect at the time of the 2004 elections.
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EN BANC
[G.R. No. 129783. December 22, 1997.]
MARCELINO C. LIBANAN, petitioner, vs. HOUSE OF
REPRESENTATIVES ELECTORAL TRIBUNAL and JOSE T.
RAMIREZ , respondents.
Cesar A. Sevilla & Associates for petitioner. The Solicitor General
for public respondent.
SYNOPSIS
Petitioner Marcelino Libanan and private respondent Jose Ramirez
were among the candidates for the lone congressional of Eastern
Samar in the May 1995 elections. After the canvass of the returns,
the Provincial Board of Canvassers of Eastern Samar proclaimed
respondent Ramirez. Petitioner Libanan seasonably led an election
protest before the House of Representatives Electoral Tribunal
(HRET). The evidence and the issues submitted by the parties for
consideration by the HRET related mainly to the proper appreciation
of the ballots objected to, or claimed by, the parties during the
revision. The HRET af rmed the proclamation of private respondent
Jose Tan Ramirez. Petitioner Libanan moved for reconsideration of
the decision of the HRET arguing, among other grounds, that the
absence of the Board of Election Inspectors (BEI) Chairman's
signature at the back of the ballots could not but indicate that the
ballots were spurious and not those issued to the voters during the
elections. The HRET denied with nality petitioner's motion for
reconsideration. Hence, the present petition.
The Supreme Court dismissed-the petition. The Court ruled that
Section 24 of R.A. No. 7166, the applicable law, does not provide
that a ballot not so authenticated shall thereby deemed spurious. The
law merely renders the BEI Chairman accountable for such failure.
What should, instead be given weight is the consistent rule laid down
by HRET that a ballot is considered valid and genuine for as long as
it bears any of the following authenticated marks, to wit: (a) the
COMELEC watermark, or (b) the signature or initials, or thumbprint
of the chairman of the BEI; and, (c) in those cases where the
COMELEC watermarks are blurred or not readily apparent to the
naked eye, the presence of red and blue bers in the ballot. It is only
when none of these marks appears extant that the ballot can be
considered spurious and subject to rejection.
SYLLABUS
STATUTES; STATUTORY CONSTRUCTION; SECTION 24 OF
R.A. 7166 CONSTRUED; SAID PROVISION DOES
NOT .PROVIDE THAT A BALLOT WHICH IS NOT SO
AUTHENTICATED SHALL THEREBY BE :DEEMED
SPURIOUS; IT MERELY RENDERS THE BOARD OF
ELECTION INSPECTORS (BEI) ACCOUNTABLE FOR SUCH
FAILURE; APPLICABLE PRINCIPLES. Section 24 of R.A.
7166 does not provide that a ballot which is not so; authenticated
shall thereby be deemed spurious. The law merely renders the BEI
Chairman accountable for
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Arteche, were found to have been merged during the 08 May 1995
elections into three (3) precincts, i.e., Precincts Nos. 14 and 19,
Precincts Nos. 15 and 16 and Precincts Nos. 18 and 20. Thus, only
seventy-six (76) ballot boxes were actually opened for revision, one
of which, Precinct No. 4-1 of Guiuan, did not contain any ballot.
On 22 February 1996, while the revision of the counter-protested
precincts was being held, Ramirez led an "Urgent Motion to
Withdraw/Abandon Counter-Protest in Speci c Municipalities/
Precincts" praying that he be granted leave to withdraw and abandon
partially his counter-protest in certain precincts. 1 Libanan led an
opposition thereto but the motion was eventually granted by the
Chairman of the HRET and subsequently confirmed in a resolution
by the tribunal.
On 21 March 1996, the HRET designated a Hearing Commissioner
and a Deputy Hearing Commissioner for the reception of evidence.
Following that reception, the respective memoranda of Libanan and
Ramirez were filed.
The evidence and the issues submitted by the parties for
consideration by the HRET related mainly to the proper appreciation
of the ballots objected to, or claimed by, the parties during the
revision. No evidence was presented in support of the other
allegations of the protest (like the alleged tampering of election
returns) and of the counter-protest (such as the alleged tearing of
some of the pages of the computerized list of voters to disenfranchise
legitimate voters and the use of goons to terrorize and compel voters
to vote for Libanan), nor were these issues discussed in the
memoranda of the parties. The HRET thus concentrated, such as can
be rightly expected, its attention to the basic appreciation of ballots. 2
The particular matter focused in this petition deals with what
petitioner claims to be spurious ballots; on this score, the HRET has
explained:
"No spurious ballot was found in this case. For a ballot to be rejected for
being spurious, the ballot must not have any of the following
authenticating marks: a) the COMELEC watermark; b) the signatures or
initial of the BEI Chairman at the back of the ballot; and c) red and blue
bers. In the present case, all the ballots examined by the Tribunal had
COMELEC watermarks.
"The Tribunal did not adopt protestant's submission in his Memorandum
that the absence of thumbmark or BEI Chairman's signature at the back of
the ballot rendered the ballot spurious. The applicable law on this issue is
Sec. 24, R.A. 7166. It reads:
"'In every case before delivering an of cial ballot to the voter, the
Chairman of the Board of Election Inspectors shall, in the presence of the
voter, af x his signature at the back thereof. Failure to so authenticate shall
be noted in the minutes of the board of election inspectors and shall
constitute an election offense punishable under Section 263 and 264 of the
Omnibus Election Code.'
"As may be gleaned above, unlike the provision of Section 210 of the
Omnibus Election Code where the BEI Chairman was required to af x his
right thumbmark at the back of the ballot immediately after it was counted,
the present law no longer requires the same.
"Anent the BEI Chairman's signature, while Section 24 of R.A. 7166
provides that failure to authenticate the ballot shall constitute an election
offense, there is nothing in the said law which provides that ballots not so
authenticated shall be
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considered invalid. In fact, the members of the Committee on Suffrage and
Electoral Reforms agreed during their deliberation on the subject that the
absence of the BEI Chairman's signature at the back of the ballot will not
per se make a ballot spurious.
"Moreover, while Rep. Palacol, then Chairman of the Committee on
Suffrage and Electoral Reforms, mentioned during his sponsorship speech
that one of the salient features of the bill led was 'to require the chairman
of the Board of Election Inspectors to authenticate a ballot given to a voter
by af xing his signature on (sic) the back thereof and to consider any ballot
as spurious,' R.A. 7166, as approved, does not contain any provision to
that effect. Clearly, therefore, the Congress as a whole (House of
Representatives and Senate) failed to adopt the proposal of Rep. Palacol
that ballots without the BEI Chairman's signature at the back will be
declared spurious. What is clearly provided under the said law is the
sanction imposable upon an erring Chairman of the BEI, and not the
disenfranchisement of the voter." 3
In its assailed decision, the HRET ruled in favor of respondent
Ramirez; it concluded:
"WHEREFORE, in light of the foregoing, the Tribunal Resolved to
DISMISS the instant election protest, including the parties' mutual claims
for damages and attorney's fee; AFFIRM the proclamation of Protestee
Jose Tan Ramirez; and DECLARE him to be the duly elected
Representative of the Lone District of Eastern Samar, for having obtained
a plurality of 143 votes over second placer Protestant Marcelino Libanan."
4
ruling that the absence of the signature of the Chairman of the BEI in
the ballots did not render the ballots spurious.
Petitioner Libanan contends that the three hundred eleven (311)
ballots (265 of which have been for private respondent Ramirez)
without the signature of the Chairman of the BEI, but which had the
COMELEC watermarks and/or colored bers, should be invalidated.
It is the position of petitioner that the purpose of the law in requiring
the BEI Chairman to af x his signature at the back of the ballot when
he issues it to the voter is "to authenticate" the ballot and, absent that
signature, the ballot must be considered spurious.
Prefatorily, the Court touches base on its jurisdiction to review and
pass upon decisions or resolutions of the electoral tribunals.
The Constitution mandates that the House of Representatives
Electoral Tribunal and the Senate Electoral Tribunal shall each,
respectively, be the sole judge of all contests relating to the election,
returns and quali cations of their respective members. 7 In Lazatin vs.
HRET , 8 the Court has observed that
"The use of the word 'sole' emphasizes the exclusive character of the
jurisdiction conferred. The exercise of the power by the Electoral
Commission under the 1935 Constitution has been described as 'intended
to be as complete and unimpaired as if it had remained originally in the
legislature.' Earlier this grant of power to the legislature was characterized
by Justice Malcolm as ''full, clear and complete.' Under the amended 1935
Constitution, the power was unquali edly reposed upon the Electoral
Tribunal and it remained as full, clear and complete as that previously
granted the Legislature and the Electoral Commission. The same may be
said with regard to the jurisdiction of the Electoral Tribunals under the
1987 Constitution." 9
The Court has stressed that ". . . so long as the Constitution grants
the HRET the power to be the sole judge of all contests relating to
the election, returns and quali cations of members of the House of
Representatives, any nal action taken by the HRET on a matter
within its jurisdiction shall, as a rule, not be reviewed by this
Court . . . the power granted to the Electoral Tribunal . . . excludes
the exercise of any authority on the part of this Court that would in
any wise restrict it or curtail it or even affect the same."
The Court did recognize, of course, its power of judicial review in
exceptional cases. In Robles vs. HRET , 10 the Court has explained
that while the judgments of the Tribunal are beyond judicial
interference, the Court may do so, however, but only "in the exercise
of this Court's so-called extraordinary jurisdiction, . . . upon a
determination that the Tribunal's decision or resolution was rendered
without or in excess of its jurisdiction, or with grave abuse of
discretion or paraphrasing Morrero, upon a clear showing of such
arbitrary and improvident use by the Tribunal of its power as
constitutes a denial of due process of law, or upon a demonstration of
a very clear unmitigated error, manifestly constituting such grave
abuse of discretion that there has to be a remedy for such abuse."
In the old, but still relevant, case of Morrero vs. Bocar, 11 the Court
has ruled that the power of the Electoral Commission "is beyond
judicial interference except, in any event, upon a clear showing of
such arbitrary and improvident use of power as will constitute a
denial of due process." The Court does not, to paraphrase it in Co vs.
HRET , 12 venture into the perilous area of correcting perceived
errors of independent branches of the Government; it comes in only
when it has to vindicate a denial of due process or correct an abuse
of discretion so grave or glaring that no less than the Constitution
itself calls for remedial action.
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"No spurious ballot was found in this case. For a ballot to be rejected for
being spurious, the ballot must not have any of the following
authenticating marks: a) the COMELEC watermark; b) the signatures or
initial of the BEI Chairman at the back of the ballot; and c) red and blue
bers. In the present case, all the ballots examined by the Tribunal had
COMELEC watermarks.
"xxx xxx xxx
"Anent the BEI Chairman's signature, while Section 24 of R.A. 7166
provides that failure to authenticate the ballot shall constitute an election
offense, there is nothing in the said law which provides that ballots not so
authenticated shall be considered invalid. In fact, the members of the
Committee on Suffrage and Electoral Reforms agreed during their
deliberation on the subject that the absence of the BEI Chairman's
signature at the back of the ballot will not per se make a ballot spurious.
"Moreover, while Rep. Palacol, then Chairman of the Committee on
Suffrage and Electoral Reforms, mentioned during his sponsorship speech
that one of the salient features of the bill led was to require the chairman of
the Board of Election Inspectors to authenticate a ballot given to a voter by
af xing his signature on (sic) the back thereof and to consider any ballot as
spurious,' R.A. 7166, as approved, does not contain any provision to that
effect. Clearly, therefore, the Congress as a whole (House of
Representatives and Senate) failed to adopt the proposal of Rep. Palacol
that ballots without the BEI Chairman's signature at the back will be
declared spurious. What is clearly provided under the said law is the
sanction imposable upon an erring Chairman of the BEI, and not the
disenfranchisement of the voter." 15
The pertinent provision of the law, Section 24 of R.A.. No. 7166,
provides:
"SEC. 24. Signature of Chairman at the back of Every Ballot. In every
case before delivering an of cial ballot to the voter, the Chairman of the
Board of Election Inspectors shall, in the presence of the voter, af x his
signature at the back thereof. Failure to authenticate shall be noted in the
minutes of the Board of Election Inspectors and shall constitute an election
offense punishable under Section 263 and 264 of the Omnibus Election
Code."
There is really nothing in the above law to the effect that a ballot
which is not so authenticated shall thereby be deemed spurious. The
law merely renders the BEI Chairman accountable for such failure.
The courts may not, in the guise of interpretation, enlarge the scope
of a statute and embrace situations neither provided nor intended by
the lawmakers. Where the words and phrases of a statute are not
obscure and ambiguous, the meaning and intention of the legislature
should be determined from the language employed, and where there
is no ambiguity in the words, there should be no room for
construction. 16
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initial will not be suf cient, the signature of the Chairman should be noted
in the minutes. Noted in the minutes. So that in case of protest, there is
basis.
"HON. RONO. Oo may basis na. lyon lang. I think that would solve our
problem.
"THE CHAIRMAN. Yes, Mr. Chairman.
"MR. MONSOD. Your honor, we're willing to accept that amendment.
Take out that sentence spurious, with the introduction of the proposed
measure . . ." 18
The TSN of the proceedings of the Bicameral Conference Committee
on Election Law, held on 29 October 1991, in turn, would show these
exchanges:
"CHAIRMAN GONZALEZ. Are there anything more?
"HON. ROCO. There is a section in the Senate version about the ballot
being signed at the back.
"CHAIRMAN GONZALEZ. Counter side.
"HON. ROCO. If it is not signed then it is being spurious which is a very
dangerous, I (think) (it) is a very dangerous provision and so. . .
"MR MONSOD. We agree with the House version that anyway when
chairman of BEI doesn't sign subject to an election offense. But it should
not be a basis for disenfranchisement of the voter. So, we believe we set
this in the hearings in the House that we should strike out that sentence
that says that this ballot is automatically spurious." 19
Thus, the nal draft, which was later to become R.A. No. 7166, no
longer included the provision "Any ballot not so authenticated shall
be deemed spurious." The intention of the legislature even then was
quite evident.
The reliance on Bautista vs. Castro 20 by petitioner, is misdirected. It
must be stressed that B.P. Blg. 222, 21 otherwise known as the
"Barangay Election Act of 1982," approved on 25 March 1982, itself
categorically expresses that it shall only be "applicable to the
election of barangay of cials." Section 14 of B.P. Blg. 222 and its
implementing rule in Section 36 of COMELEC Resolution No. 1539
have both provided:
Section 14 of B.P. 222:
"Sec. 14. Of cial barangay ballots. The of cial barangay ballots shall be
provided by the city or municipality concerned of a size and color to be
prescribed by the Commission on Elections.
"Such of cial ballot shall, before it is handed to the voter at the voting
center, be authenticated in the presence of the voter, the other Tellers, and
the watchers present by the Chairman of the Board of Election Tellers who
shall af x his signature at the back thereof."
Section 36 of COMELEC Resolution No. 1539:
"Sec. 36. Procedure in the casting of votes. . . .
"b. Delivery of ballot. Before delivering the ballot to the voter, the
chairman shall, in the presence of the voter, the other members of the
board and the watchers present, af x his signature at the back thereof and
write the serial number of the ballot in the space provided in the ballot,
beginning with No. '1' for
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the rst ballot issued, and so on consecutively for the succeeding ballots,
which serial number shall be entered in the corresponding space of the
voting record. He shall then fold the ballot once, and without removing the
detachable coupon, deliver it to the voter, together with a ball pen.
"xxx xxx xxx
"e. Returning the ballot. (1) In the presence of all the members of the
Board, the voter shall af x his right hand thumbmark on the corresponding
space in the detachable coupon, and shall give the folded ballot to the
chairman. (2) The chairman shall without unfolding the ballot or looking at
its contents, and in the presence of the voter and all the members of the
Board, verify if it bears his signature and the same serial number recorded
in the voting record. (3) If the ballot is found to be authentic, the voter
shall then be required to imprint his right hand thumbmark on the proper
space in the voting record. (4) The chairman shall then detach the coupon
and shall deposit the folded ballot in the compartment for valid ballot and
the coupon in the compartment for spoiled ballots. (5) The voter shall then
leave the voting center.
"f. When ballot may be considered spoiled. Any ballot returned to the
chairman with its coupon already detached, or which does not bear the
signature of the chairman, or any ballot with a serial number that does not
tally with the serial number of the ballot delivered to the voter as recorded
in the voting record, shall be considered as spoiled and shall be marked
and signed by the members of the board and shall not be counted." 22
The difference in the rules may not be too dif cult to discern. The
stringent requirements in B.P. Blg. 222 should be justifiable
considering that the official barangay ballots would be provided by
the city or municipality concerned with the COMELEC merely
prescribing their size and color. Thus, the of cial ballots in B.P. Blg.
222, being supplied and furnished by the local government
themselves, the possibility of the ballots being easily counterfeited
might not have been discounted. The absence of authenticating
marks prescribed by law i.e., the signature of the chairman of the
Board of Election Tellers at the back of the ballot, could have well
been really thought of to be fatal to the validity of the ballot.
Section 24 of R.A. No. 7166, upon the other hand, contains no
similar stringent provisions such as that seen in Section 36(f) of
COMELEC Resolution No. 1539. The pertinent part in Resolution
No. 2676 on the requirement of the signature of the chairman is
found in Section 73 thereof which merely provides:
"Sec. 73. Signature of chairman at the back of every ballot. In every
case, the chairman of the board shall, in the presence of the voter,
authenticate every ballot by af xing his signature at the back thereof before
delivering it to the voter. FAILURE TO SO AUTHENTICATE SHALL BE
NOTED IN THE MINUTES OF THE BOARD AND SHALL
CONSTITUTE AN ELECTION OFFENSE."
Again, in Resolution No. 2738, 23 promulgated by the COMELEC on
03 January 1995, 24 which implemented, among other election laws,
R.A. No. 7166 (that governed the election for Members of the House
of Representatives held on 08 May 1995), the relevant provision is in
Section 13 which itself has only stated:
"Sec. 13. Authentication of the ballot. Before delivering a ballot to the
voter, the chairman of the board shall, in the presence of the voter, af x his
signature at the back thereof."
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It would appear evident that the ruling in Bautista vs. Castro was
prompted because of the express declaration in Section 36(f) of
COMELEC Resolution No. 1539, implementing Section 14 of B.P.
Blg. 222, that: "Any ballot returned to the chairman . . . which does
not bear the signature of the chairman . . . shall be considered as
spoiled . . . and shall not be counted." This Court thus stated in
Bautista: cda
"The law (Sec. 14 of B.P. Blg. 222) and the rules implementing it (Sec. 36
of Comelec Res. No. 1539) leave no room for interpretation. The absence
of the signature of the Chairman of the Board of Election Tellers in the
ballot given to a voter as required by law and the rules as proof of the
authenticity of said ballot is fatal. This requirement is mandatory for the
validity of the said ballot."
It should be noteworthy that in an unsigned 03rd April 1990
resolution, in "Jolly Fernandez vs. COMELEC," 25 the Court en banc
had the opportunity to debunk the argument that all ballots not
signed at the back thereof by the Chairman and the Poll Clerk were
to be considered spurious for non-compliance with Section 15 of
R.A. No. 6646, 26 i.e., "The Electoral Reforms Law of 1987," reading
as follows:
"Sec. 15. Signature of Chairman and Poll Clerk at the Back of Every
Ballot. In addition to the preliminary acts before the voting as
enumerated in Section 191 of Batas Pambansa Blg. 881, the chairman and
the poll clerk of the board of election inspectors shall af x their signatures
at the back of each and every of cial ballot to be used during the voting. A
certi cation to that effect must be entered in the minutes of the voting."
The Court declared:
"The cardinal objective in the appreciation of the ballots is to discover and
give effect to the intention of the voter. That intention would be nulli ed by
the strict interpretation of the said section as suggested by the petitioner for
it would result in the invalidation of the ballot even if duly accomplished
by the voter, and simply because of an omission not imputable to him but
to the election of cials. The citizen cannot be deprived of his constitutional
right of suffrage on the specious ground that other persons were negligent
in performing their own duty, which in the case at bar was purely
ministerial and technical, by no means mandatory but a mere antecedent
measure intended to authenticate the ballot. A contrary ruling would place
a premium on of cial ineptness and make it possible for a small group of
functionaries, by their negligence or, worse, their deliberate inaction
to frustrate the will of the electorate." 27
Petitioner Libanan suggests that the Court might apply the "ruling"
of respondent HRET in the case of Yap vs. Calalay (HRET Case No.
95-026). He states that it is the HRET itself, ironically, that deals the
coup de grace to its ruling in HRET Case No. 95-020." The "ruling"
cited by petitioner is actually a "Con dential Memorandum," 28 dated
28 April 1997, from a certain Atty. Emmanuel Mapili addressed to
"PA Committees in HRET Case No. 95-026 (Yap vs. Calalay)" which
has for its subject "(n)ew rulings to be followed in the appreciation
of ballots in HRET Case No. 95-026 (Yap vs. Calalay) and other
concerns." Petitioner Libanan quotes the pertinent portion of the said
Memorandum, viz.:
"WHEREFORE, the Tribunal Resolved that the following rules and
guidelines on the appreciation of ballots shall be given effect in the
resolution of this case and shall be applied prospectively to other pending
cases:
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"1. The absence of the signature of the BEI Chairman at the back of the
ballot shall nullify the same and all the votes therein shall not be counted
in favor of any candidate." 29
Reliance by petitioner on this alleged "ruling," obviously deserves
scant consideration. What should, instead, be given weight is the
consistent rule laid down by the HRET that a ballot is considered
valid and genuine for as long as it bears any one of these
authenticating marks, to wit: (a) the COMELEC watermark, or (b)
the signature or initials, or thumbprint of the Chairman of the BEI;
and, (c) in those cases where the COMELEC watermarks are blurred
or not readily apparent to the naked eye, the presence of red and blue
bers in the ballots. 30 It is only when none of these marks appears
extant that the ballot can be considered spurious and subject to
rejection.
It is quite clear, in the opinion of the Court, that no grave abuse of
discretion has been committed by respondent House of
Representatives Electoral Tribunal in its issuance of the assailed
decision and resolution.
One other important point. Regarding the membership of certain
Justices of this Court in the HRET and their participation in the
resolution of the instant petition, the Court sees no con ict at all, and
it, therefore, rejects the offer of inhibition by each of the concerned
justices. As early as Vera vs. Avelino, 31 this Court, confronted with a
like situation, has said unequivocally:
". . . Mulling over this, we experience no qualmish feelings about the
coincidence. Their designation to the electoral tribunals deducted not a
whit from their functions as members of this Supreme Court, and did not
disqualify them in this litigation. Nor will their deliverances hereat on a
given question operate to prevent them from voting in the electoral forum
on identical questions; because the Constitution, establishing no
incompatibility between the two roles, naturally did not contemplate, nor
want, justices opining one way here, and thereafter holding otherwise, pari
materia, in the electoral tribunal, or vice-versa." 32
Such has thus been, and so it is to be in this petition, as well as in the
cases that may yet come before the Court.
WHEREFORE, the instant petition is DISMISSED. IT IS SO prLL
ORDERED.
Narvasa, C .J ., Regalado, Davide, Jr., Romero, Melo, Puno,
Kapunan, Mendoza, Francisco and Panganiban, Martinez, JJ .,
concur.
Bellosillo, J ., concurs, without prejudice to filing separate opinion to
qualify doctrine. Footnotes
1. "1) All the forty- ve (45) precincts of Dolores; 2) All the thirty (30)
precincts of Taft; 3) All the protested precincts from the municipalities of
Maydolong, Llorente, Salcedo and Giporlos (Rollo, p. 38).
2. "Re: Multiple Ballots Written By One Person (Ibid., p. 51)
Re: Ballots Accomplished by Two (2) Persons (Ibid., p. 52)
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Purposes."
27. Jolly Fernandez vs. COMELEC, supra. 28. Annex "F", Petition, Rollo,
p. 303-304. 29. Rollo, p. 303.
30. Neri vs. Romualdo, HRET Case No. 92-001, 14 April 1994, 4 HRET
Reports 42; Simando vs. Fuentebella, HRET Case No. 92-011, 14 April
1994, 4 HRET Reports 429; San Buenaventura vs. Baguio, HRET Case
No. 92-016, 14 April 1994, 4 HRET Reports 603; Tanchanco vs. Oreta,
HRET Case No. 92-017, 28 April 1994, 5 HRET Reports 25-26; Alterado
vs. Garcia, HRET Case No. 92-008, 12 May 1994, 5 HRET Reports 359;
Hisuler vs. Lanto, HRET Case No. 92-014, 22 July 1994, 6 HRET Reports
36.
31. 77 Phil. 192, 213. 32. At pp. 213-214.
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EN BANC
[G.R. No. 158466. June 15, 2004.]
PABLO V. OCAMPO , petitioner, vs. HOUSE OF
REPRESENTATIVES ELECTORAL TRIBUNAL AND MARIO B.
CRESPO a.k.a. MARK JIMENEZ, respondents.
DECISION
SANDOVAL-GUTIERREZ, J : p
pass upon substantial rights will not consider questions in which no actual
interests are involved; they decline jurisdiction of moot cases. And where
the issue has become moot and academic, there is no justiciable
controversy, so that a declaration thereon would be of no practical use or
value. There is no actual substantial relief to which petitioner would be
entitled and which would be negated by the dismissal of the petition."
WHEREFORE, the petition is hereby DISMISSED. SO ORDERED.
Davide, Jr., C .J ., Carpio, Austria-Martinez, Carpio Morales, Callejo,
Sr., Azcuna and Tinga, JJ ., concur.
Puno, J ., took no part. Participated in HRET case.
Panganiban, J ., took no part. Participated in deliberations in HRET.
Quisumbing, J ., took no part. Prior action in HRET.
Vitug and Corona, JJ ., are on official leave.
Ynares-Santiago, J ., is on leave.
Footnotes
1. Sunga vs. COMELEC, G.R. No. 125629, March 25, 1998, 288
SCRA 76.
10. G.R. No. 150605, December 10, 2002, 393 SCRA 639.
11. Reyes vs. Comelec, G.R. No. 120905, March 7, 1996, 254 SCRA
514; Nolasco vs. Comelec, G.R. Nos. 122250 & 122258, July 21,
1997, 275 SCRA 762.
15. G.R. No. 106053, August 17, 1994, 235 SCRA 436.
16. G.R. No. 134015, July 19, 1999, 310 SCRA 546.
18. G.R. Nos. L-60504, L-60591, 60732-39, May 14, 1985, 136 SCRA
435.
19. Aquino vs. COMELEC, G.R. No. 120265, September 18, 1995, 248
SCRA 400.
21. G.R. No. 108033, April 14, 1997, 271 SCRA 204, 207208.
EN BANC
[G.R. No. 42288. February 16, 1935.]
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs. CORNELIO BAYONA, defendant-appellant.
Gervasio Diaz for appellant. Solicitor-General Hilado for appellee.
SYLLABUS
1. ELECTIONS; CARRYING OF ARMS WITHIN FIFTY METERS
FROM A POLLING PLACE. The law which the defendant
violated is a statutory provision, and the intent with which he
violated it is immaterial. It may be conceded that the defendant did
not intend to intimidate any elector or to violate the law in any other
way, but when he got out of his automobile and carried his revolver
inside of the fence surrounding the polling place, he committed the
act complained of, and he committed it willfully. The act prohibited
by the Election Law was complete. The intention to intimidate the
voters or to interfere otherwise with the election is not made an
essential element of the offense. Unless an offender actually makes
use of his revolver, it would be extremely difficult, if not impossible,
to prove that he intended to intimidate the voters.
2. ID.; ID.; INTENT TO COMMIT A CRIME AND INTENT TO
PERPETRATE THE ACT. The rule is that in acts mala in se there
must be a criminal intent, but in those mala prohibita it is sufficient if
the prohibited act was intentionally done. "Care must be exercised in
distinguishing the difference between the intent to commit the crime
and the intent to perpetrate the act. . . ." (U.S. vs. Go Chico, 14 Phil.,
128.)
DECISION
VICKERS, J : p
revolver Colt de calibre 32, No. 195382, Exhibit A, dentro del cerco que
rodeaba el edificio destinado para el citado colegio electoral numero 4 y a
una distancia de 22 metros del referido colegio electoral. Inmediatamente
Jose E. Desiderio se incauto del revolver en cuestion.
"La defensa, por medio del testimonio de Jose D. Benliro y de Dioscoro
Buenvenida, trato de establecer que el aqui acusado paro en la calle que
daba frente al colegio electoral numero 4 a invitacion de dicho Jose D.
Benliro y con el objeto de suplicarle al mencionado acusado para llevar a
su casa a los electores del citado Jose D. Benliro que ya habian terminado
de votar, y que cuando llegaron Jose E. Desiderio y el comandante F. B.
Agdamag, el aqui acusado estaba en la calle. Desde el colegio electoral
hasta el sitio en que, segun dichos testigos, estaba el acusado cuando se le
quito el revolver Exhibit A, hay una dustabcua de 27 metros."
Appellant's attorney makes the following assignments of error:
"1. El Juzgado a quo erro al declarar que el apelante fue sorprendido con
revolver dentro del cerco de la casa escuela del Barrio de Aranguel,
Municipio de Pilar, que fue habilitado como colegio electoral.
2. El Juzgado a quo erro al declarar al apelante culpable de la infraccion de
la Ley Electoral querellada y, por consiguiente, al condenarle a prision y
multa."
As to the question of fact raised by the rst assignment of error, it is
suf cient to say that the record shows that the record shows that both
Jose E. Desiderio, a representative of the Department of the Interior,
and Major Agdamag of the Philippine Constabulary, who had been
designated to supervise the elections in the Province of Capiz, testi
ed positively that the defendant was within the fence surrounding the
polling place when Desiderio took possession of the revolver the
defendant was carrying. This also disposes of that part of the
argument under the second assignment of error based on the theory
that the defendant was in a public road, where he had a right to be,
when he was arrested. The latter part of the argument under the
second assignment of error is that if it be conceded that the defendant
went inside of the fence, he is nevertheless not guilty of a violation
of the Election Law, because he was called by a friend and merely
approached him to nd out what he wanted and had no interest in the
election; that there were many people in the public road in front of
the polling place, and the defendant could not leave his revolver in
his automobile, which he himself was driving, without running the
risk of losing it and thereby incurring in a violation of the law.
As to the contention that the defendant could not leave his revolver
in his automobile without the risk of losing it because he was alone,
it is suf cient to say that under the circumstances it was not necessary
for the defendant to leave his automobile merely because somebody
standing near the polling place had called him, nor does the record
show that it was necessary for the defendant to carry arms on that
occasion.
The Solicitor-General argues that since the Government does not
especially construct buildings for electoral precincts but merely
utilizes whatever building there may be available, and all election
precincts are within fty meters from some road, a literal application
of the law would be absurd, because members of the police force or
Constabulary in pursuit of a criminal would be included in that
prohibition and could not use the road in question if they were
carrying rearms; that people living in the vicinity of electoral
precincts would be prohibited from cleaning or handling their rearms
within their own residences on registration and election days;.
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That the object of the Legislature was merely to prohibit the display
of rearms with intention to influence in any way the free and
voluntary exercise of suffrage;.
That if the real object of the Legislature was to insure the free
exercise of suffrage, the prohibition in question should only be
applied when the facts reveal that the carrying of the rearms was
intended for the purpose of using them directly or indirectly to in
uence the free choice of the electors (citing the decision of this court
in the case of People vs. Urdeleon [G. R. No. 31536, promulgated
November 20, 1929, not reported], where a policeman, who had been
sent to a polling place to preserve order on the request of the
chairman of the board of election inspectors, was acquitted); that in
the case at bar there is no evidence that the defendant went to the
election precinct either to vote or to work for the candidacy of
anyone, but no the other hand the evidence shows that the defendant
had no intention to go to the electoral precinct; that he was merely
passing along the road in front of the building where the election was
being held when a friend of his called him; that while in the strict,
narrow interpretation of the law the defendant is guilty, it would be
inhuman and unreasonable to convict him.
We cannot accept the reasons advanced by the Solicitor-General for
the acquittal of the defendant. The law which the defendant violated
is a statutory provision, and the intent with which he violated it is
immaterial. It may be conceded that the defendant did not intend to
intimidate any elector or to violate the law in any other way, but
when he got out of his automobile and carried his revolver inside of
the fence surrounding the polling place, he committed the act
complained of, and he committed it willfully. The act prohibited by
the Election Law was complete. The intention to intimidate the
voters or to interfere otherwise with the election is not made an
essential element of the offense. Unless such an offender actually
makes use of his revolver, it would be extremely difficult, if not
impossible, to prove that he intended to intimidate the voters.
The rule is that in acts mala in se there must be a criminal intent, but
in those mala prohibita it is suf cient if the prohibited act was
intentionally done. "Care must be exercised in distinguishing the
difference between the intent to commit the crime and the intent to
perpetrate the act. . . ." (U. S. vs. Go Chico, 14 Phil., 128.).
"While it is true that, as a rule and a principles of abstract justice, men are
not and should not be held criminally responsible for acts committed by
them without guilty knowledge and criminal or at least evil intent
(Bishop's New Crim. Law, vol. I, sec. 286), the courts have always
recognized the power of the legislature, on grounds of public policy and
compelled by necessity, 'the great master of things', to forbid in a limited
class of cases the doing of certain acts, and to make their commission
criminal without regard to the intent of the doer. (U. S. vs. Go Chico, 14
Phil., 128; U. S. vs. Ah Chong, 15 Phil., 488.) In such cases no judicial
authority has the power to require, in the enforcement of the law, such
knowledge or motive to be shown." (U. S. vs. Siy Cong Bieng and Co
Kong, 30 Phil., 577.)
The cases suggested by the Solicitor-General do not seem to us to
present any dif culty in the enforcement of the law. If a man with a
revolver merely passes along a public road on election day, within
fty meters of a polling place, he does not violate the provision of law
in question, because he had no intent to perpetrate the act prohibited,
and the same thing would be true of a peace of cer in pursuing a
criminal; nor would the prohibition extend to persons living within
fty meters of a polling place, who merely clean or handle their
rearms within their own residences on election day, as they would
not be carrying rearms within the contemplation of the law; and as to
the decision in the case of People vs. Urdeleon, supra, we have
recently held in the case of People vs. Ayre, and Degracia (p. 169.
ante), that a policeman who goes to a polling
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EN BANC
[G.R. No. 139853. September 5, 2000.]
FERDINAND THOMAS M. SOLLER, petitioner, vs.
COMMISSION ON ELECTIONS, REGIONAL TRIAL COURT
OF PINAMALAYAN, ORIENTAL MINDORO (Branch 42) and
ANGEL M. SAULONG, respondents.
De Mesa and Ochoa Law Offices for petitioner.
Brillantes Navarro Jumamil Arcilla Escolin and Martinez Law
Offices and The
Solicitor General for respondents.
SYNOPSIS
Petitioner Ferdinand Thomas M. Soller and private respondent Angel
M. Saulong were both candidates for mayor of the Municipality of
Bansud, Oriental Mindoro in the May 11, 1998, elections. On May
14, 1998, Soller was proclaimed by the municipal board of
canvassers as the duly elected mayor. On May 19, 1998, Saulong
filed with the COMELEC a petition for annulment of the
proclamation/exclusion of election return. On May 25, 1998,
Saulong also filed an election protest before the Regional Trial Court
of Pinamalayan, Oriental Mindoro. Soller moved to dismiss
Saulong's protest on the ground of lack of jurisdiction, forum-
shopping and failure to state a cause of action. On July 3, 1998, the
COMELEC dismissed the petition filed by Saulong. On the other
hand, the trial court denied Soller's motion to dismiss. His motion for
reconsideration was also denied. Soller then filed a petition for
certiorari with the COMELEC contending that respondent RTC
acted without or in excess of jurisdiction or with grave abuse of
discretion in not dismissing private respondent's election protest. On
August 31, 1999, the COMELEC en banc dismissed the said
petition. Hence, Soller filed the instant petition. ESAHca
This Court found that petitioner's petition with the COMELEC was
not referred to a division of that Commission but was, instead,
submitted directly to the Commission en banc. The petition for
certiorari assailed the trial court's order denying the motion to
dismiss private respondent's election protest. The questioned order of
the trial court is interlocutory because it does not end the trial court's
task of adjudicating the parties' contentions and determining their
rights and liabilities as regards each other. The authority to resolve a
petition for certiorari involving incidental issues of election protest,
like the questioned order of the trial court; falls within the division of
the COMELEC and not on the COMELEC en banc. Clearly, the
COMELEC en banc acted without jurisdiction in taking cognizance
of petitioner's petition in the first instance.
In order to write finis to the controversy at bar, the Court resolved the
issues raised by petitioner. A close scrutiny of the receipts will show
that private
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respondent failed to pay the filing fee of P300.00 for his protest as
prescribed by the COMELEC rules. A court acquires jurisdiction
over any case only upon the payment of the prescribed docket fee.
Patently, the trial court did not acquire jurisdiction over private
respondent's election protest. Therefore, COMELEC gravely erred in
not ordering the dismissal of private respondent's protest case. The
Court noted that the verification of aforesaid protest was defective.
Since the petition lacked proper verification, it should be treated as
an unsigned pleading and must be dismissed. Further, the Court
found that private respondent did not comply w ith the required
certification against forum shopping. Private respondent successively
filed a "petition for annulment of the proclamation/exclusion of
election return" and an election protest. Yet, he did not disclose in his
election protest that he earlier filed a petition for annulment of
proclamation/exclusion of election returns.
The instant petition was GRANTED.
SYLLABUS
1. POLITICAL LAW; CONSTITUTIONAL LAW;
CONSTITUTIONAL COMMISSIONS; COMMISSION ON
ELECTIONS; JURISDICTION; COMELEC EN BANC DOES NOT
HAVE THE AUTHORITY TO HEAR AND DECIDE ELECTION
CASES IN THE FIRST INSTANCE. Section 3, Subdivision C of
Article IX of the Constitution reads: "The Commission on Elections
may sit en banc or in two divisions, and shall promulgate its rules of
procedure in order to expedite the disposition of election cases,
including pre-proclamation controversies. All such election cases
shall be heard and decided in division, provided that motions for
reconsideration of decision shall be decided by the Commission en
banc." Thus, in Sarmiento vs. COMELEC and in subsequent cases,
we ruled that the COMELEC, sitting en banc, does not have the
requisite authority to hear and decide election cases including pre-
proclamation controversies in the first instance. This power pertains
to the divisions of the Commission. Any decision by the Commission
en banc as regards election cases decided by it in the first instance is
null and void. DHCcST
RESOLUTION
QUISUMBING, J : p
This special civil action for certiorari seeks to annul the resolution
promulgated on August 31, 1999, in COMELEC special relief case
SPR No. 10-99. The resolution dismissed petitioner's petition to set
aside the orders of the Regional Trial Court of Pinamalayan, Oriental
Mindoro, dated October 1, 1998 and February 1, 1999, which denied
petitioner's motion to dismiss the election protest filed by private
respondent against petitioner and the motion for
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reconsideration, respectively.
Petitioner and private respondent w ere both candidates for mayor of
the municipality of Bansud, Oriental Mindoro in the May 11, 1998
elections. On May 14, 1998, the municipal board of canvassers
proclaimed petitioner Ferdinand Thomas Soller duly elected mayor.
On May 19, 1998, private respondent Angel Saulong filed with the
COMELEC a 'petition for annulment of the proclamation/exclusion
of election return". 1 On M a y 2 5 , 1 9 9 8 , p r i v a t e r e s p o n d e
n t fi l e d w i t h t h e R e g i o n a l Tr i a l C o u r t o f Pinamalayan,
Oriental Mindoro, an election protest against petitioner docketed as
EC-31-98.
On June 15, 1998, petitioner filed his answer with counter-protest.
Petitioner also moved to dismiss private respondent's protest on the
ground of lack of jurisdiction, forum-shopping, and failure to state
cause of action. 2
On July 3, 1998, COMELEC dismissed the pre-proclamation case
filed by private respondent.
On October 1, 1998, the trial court denied petitioner's motion to
dismiss. Petitioner moved for reconsideration but said motion was
denied. Petitioner then filed with the COMELEC a petition for
certiorari contending that respondent RTC acted without or in excess
of jurisdiction or with grave abuse of discretion in not dismissing
private respondent's election protest.
On August 31, 1999, the COMELEC en banc dismissed petitioner's
suit. The election tribunal held that private respondent paid the
required filing fee. It also declared that the defect in the verification
is a mere technical defect which should not bar the determination of
the merits of the case. The election tribunal stated that there was no
forum shopping to speak of. ADSTCI
Under the COMELEC Rules of Procedure, a motion for
reconsideration of its en banc ruling is prohibited except in a case
involving an election offense. 3 Since the present controversy
involves no election offense, reconsideration is not possible and
petitioner has no appeal or any plain, speedy and adequate remedy in
the ordinary course of law. Accordingly, petitioner properly filed the
instant petition for certiorari with this Court.
On September 21, 1999, we required the parties to maintain the
status quo ante prevailing as of September 17, 1999, the date of
filing of this petition.
Before us, petitioner asserts that the COMELEC committed grave
abuse of discretion amounting to lack or excess of jurisdiction:
[I]
. . . IN AFFIRMING RESPONDENT RTC'S REFUSAL TO DISMISS
PRIVATE RESPONDENT'S ELECTION PROTEST DESPITE HIS (sic)
LACK OF JURISDICTION OVER THE SAME BY REASON OF THE
FAILURE OF THE PRIVATE RESPONDENT TO PAY ALL THE
REQUISITE FILING FEES.
[II]
. . . IN AFFIRMING RESPONDENT'S RTC'S REFUSAL TO DISMISS
PRIVATE RESPONDENT'S ELECTION PROTEST DESPITE THE
INSUFFICIENCY OF HIS
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the schedule provided for in the Rules of Court of the Philippines. 10.
Rollo, pp. 112-113, 229, 271, 315, 33, 333, 404, 407.
11. Id. at 331.
12. Suson vs. Court of Appeals, 278 SCRA 284, 291 (1997).
13. Miranda vs. Castillo, 274 SCRA 503 (1997); Loyola vs. COMELEC,
337 Phil 134 (1997); Gatchalian vs. Court of Appeals, 315 Phil 195
(1995); Pahilan vs. Tabalba, 230 SCRA 205 (1994).
14. Rollo, p. 85.
15. A.M. No. 00-2-10-SC, effective 1 May 2000 provides that "a pleading
is verified by an affidavit that the affiant has read the pleading and that the
allegations therein are true and correct of his personal knowledge or based
on authentic records."
16. Section 4, Rule 7, 1997 Rules of Civil Procedure.
17. Laodenio vs. COMELEC, 276 SCRA 705, 713-714 (1997).
18. Melo vs. Court of Appeals, GR-123686, November 16, 1999, p. 7.
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