TUPAY T. LOONG vs.

COMMISSION ON ELECTIONS and ABDUSAKUR TAN

(G.R. No. 133676; April 14, 1999)

Puno, J.

FACTS:

Automated elections systems was used for the May 11, 1998 regular elections held in the Autonomous
Region in Muslim Mindanao (ARMM) which includes the Province of Sulu. Atty. Jose Tolentino, Jr.
headed the COMELEC Task Force to have administrative oversight of the elections in Sulu.

On May 12, 1998, some election inspectors and watchers informed Atty. Tolentino, Jr. of discrepancies
between the election returns and the votes cast for the mayoralty candidates in the municipality of
Pata. To avoid a situation where proceeding with automation will result in an erroneous count, he
suspended the automated counting of ballots in Pata and immediately communicated the problem to
the technical experts of COMELEC and the suppliers of the automated machine. After the consultations,
the experts told him that the problem was caused by misalignment of the ovals opposite the names of
candidates in the local ballots. They found nothing wrong with the automated machines. The error was
in the printing of the local ballots, as a consequence of which, the automated machines failed to read
them correctly. Atty. Tolentino, Jr. called for an emergency meeting of the local candidates and the
military-police officials overseeing the Sulu elections. Among those who attended were petitioner Tupay
Loong and private respondent Abdusakar Tan and intervenor Yusop Jikiri (candidates for governor.) The
meeting discussed how the ballots in Pata should be counted in light of the misaligned ovals. There was
lack of agreement. Some recommended a shift to manual count (Tan et al) while the others insisted on
automated counting (Loong AND Jikiri).

Reports that the automated counting of ballots in other municipalities in Sulu was not working well were
received by the COMELEC Task Force. Local ballots in five (5) municipalities were rejected by the
automated machines. These municipalities were Talipao, Siasi, Tudanan, Tapul and Jolo. The ballots
were rejected because they had the wrong sequence code.

Before midnight of May 12, 1998, Atty. Tolentino, Jr. was able to send to the COMELEC en banc his
report and recommendation, urging the use of the manual count in the entire Province of Sulu. 6 On the
same day, COMELEC issued Minute Resolution No. 98-1747 ordering a manual count but only in the
municipality of Pata.. The next day, May 13, 1998, COMELEC issued Resolution No. 98-1750 approving,
Atty. Tolentino, Jr.'s recommendation and the manner of its implementation. On May 15, 1998, the
COMELEC en banc issued Minute Resolution No. 98-1796 laying down the rules for the manual count.
Minute Resolution 98-1798 laid down the procedure for the counting of votes for Sulu at the PICC.
COMELEC started the manual count on May 18, 1998.
ISSUE:

1. Whether or not a petition for certiorari and prohibition under Rule 65 of the Rules of Court is the
appropriate remedy to invalidate the disputed COMELEC resolutions.

2. Assuming the appropriateness of the remedy, whether or not COMELEC committed grave abuse of
discretion amounting to lack of jurisdiction in ordering a manual count. (The main issue in the case at
bar)

2.a. Is there a legal basis for the manual count?

2.b. Are its factual bases reasonable?

2.c. Were the petitioner and the intervenor denied due process by the COMELEC when it
ordered a manual count?

3. Assuming the manual count is illegal and that its result is unreliable, whether or not it is proper to call
for a special election for the position of governor of Sulu.

HELD:

the petition of Tupay Loong and the petition in intervention of Yusop Jikiri are dismissed, there being no
showing that public respondent gravely abused its discretion in issuing Minute Resolution Nos. 98-1748,
98-1750, 98-1796 and 98-1798. Our status quo order of June 23, 1998 is lifted.

(1.) Certiorari is the proper remedy of the petitioner. The issue is not only legal but one of first
impression and undoubtedly suffered with significance to the entire nation. It is adjudicatory of the right
of the petitioner, the private respondents and the intervenor to the position of governor of Sulu. These
are enough considerations to call for an exercise of the certiorari jurisdiction of this Court.

(2a). A resolution of the issue will involve an interpretation of R.A. No. 8436 on automated election in
relation to the broad power of the COMELEC under Section 2(1), Article IX(C) of the Constitution "to
enforce and administer all laws and regulations relative to the conduct of an election , plebiscite,
initiative, referendum and recall." Undoubtedly, the text and intent of this provision is to give COMELEC
all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest,
peaceful, and credible elections.

The order for a manual count cannot be characterized as arbitrary, capricious or whimsical. It is well
established that the automated machines failed to read correctly the ballots in the municipality of Pata.
The technical experts of COMELEC and the supplier of the automated machines found nothing wrong
the automated machines. They traced the problem to the printing of local ballots by the National
Printing Office. It is plain that to continue with the automated count would result in a grossly erroneous
count. An automated count of the local votes in Sulu would have resulted in a wrong count, a travesty of
the sovereignty of the electorate
In enacting R.A. No. 8436, Congress obviously failed to provide a remedy where the error in counting is
not machine-related for human foresight is not all-seeing. We hold, however, that the vacuum in the law
cannot prevent the COMELEC from levitating above the problem. . We cannot kick away the will of the
people by giving a literal interpretation to R.A. 8436. R.A. 8436 did not prohibit manual counting when
machine count does not work. Counting is part and parcel of the conduct of an election which is under
the control and supervision of the COMELEC. It ought to be self-evident that the Constitution did not
envision a COMELEC that cannot count the result of an election.

It is also important to consider that the failures of automated counting created post election tension in
Sulu, a province with a history of violent elections. COMELEC had to act desively in view of the fast
deteriorating peace and order situation caused by the delay in the counting of votes

(2c) Petitioner Loong and intervenor Jikiri were not denied process. The Tolentino memorandum clearly
shows that they were given every opportunity to oppose the manual count of the local ballots in Sulu.
They were orally heard. They later submitted written position papers. Their representatives escorted the
transfer of the ballots and the automated machines from Sulu to Manila. Their watchers observed the
manual count from beginning to end.

3. The plea for this Court to call a special election for the governorship of Sulu is completely off-line. The
plea can only be grounded on failure of election. Section 6 of the Omnibus Election Code tells us when
there is a failure of election, viz:

Sec. 6. Failure of election. — If, on account of force majeure, terrorism, fraud, or other analogous
causes, the election in any polling place has not been held on the date fixed, or had been
suspended before the hour fixed by law for the closing of the voting, or after the voting and
during the preparation and the transmission of the election returns or in the custody or canvass
thereof, such election results in a failure to elect, and in any of such cases the failure or
suspension of election would affect the result of the election, the Commission shall on the basis
of a verified petition by any interested party and after due notice and hearing, call for the
holding or continuation of the election, not held, suspended or which resulted in a failure to elect
but not later than thirty days after the cessation of the cause of such postponement or
suspension of the election or failure to elect.

There is another reason why a special election cannot be ordered by this Court. To hold a special
election only for the position of Governor will be discriminatory and will violate the right of private
respondent to equal protection of the law. The records show that all elected officials in Sulu have been
proclaimed and are now discharging their powers and duties. These officials were proclaimed on the
basis of the same manually counted votes of Sulu. If manual counting is illegal, their assumption of office
cannot also be countenanced. Private respondent's election cannot be singled out as invalid for alike
cannot be treated unalike. The plea for a special election must be addressed to the COMELEC and not to
this Court.
PENDATUN SALIH, petitioner, vs. COMMISSION ON ELECTIONS OMARHASSIM ABDULMUNAP and FAWSI
ALONZO, respondents.

[G.R. No. 122872. September 10, 1997]

HERMOSISIMA, JR., J.

Facts:

Petitioner Pendatun Salih and private respondents Alonzo and Abdulmanap ran for mayor of
Tandubas, Tawi-Tawi province. Five of the election returns from Tandubas were contested by the three
candidates. The Municipal Board of Canvassers however ruled that the election returns be canvassed
due to the lack of sufficient proof to warrant the exclusion of the contested returns. The same board did
not proclaim any winner, since its ruling was raised to respondent COMELEC on appeal.

The COMELEC (2nd Division) ruled to include 3 of the contested returns. As a result the Board of
Canvassers of Tandubas proclaimed petitioner Salih as winner; however, COMELEC, in its en-banc
decision, nullified the proclamation, also ordering the inclusion of the 2 remaining returns earlier
excluded by the 2nd Division and ordered the Tandubas Board of Canvassers to complete the canvass
and proclaim the winning candidate.

Threatened to be unseated, petitioner filed before the Supreme Court a petition for certioriari,
seeking for the nullification of the respondent’s en-banc decision and his declaration as the duly-elected
mayor of Tandubas.

Issue: Whether or not the COMELEC erred in including the two election returns in its en-banc decision,
overturning the previous decision of the 2nd Division.

Held and Ratio: No. The Court held that the COMELEC en-banc was correct in overturning the 2nd
Division’s ruling, since there was lack of evidence that there was a sham or fraudulent voting in the two
precints (Precints 10 and 10-A) where the returns were initially excluded. Furthermore, the Court ruled
that had there been a sham voting, such is hardly proper in a pre-proclamation controversy; such
grounds are cognizable in an election protest.

Instant petition is hereby DISMISSED. The Temporary Restraining Order heretofore issued is hereby
DISSOLVED.
REP. MA. CATALINA L. GO, petitioner, vs. COMMISSION ON ELECTIONS, FELIPE V. MONTEJO and ARVIN
V. ANTONI, respondents.

[G.R. No. 147741. May 10, 2001]

PARDO, J.

Facts:

Petitioner Go filed with the Municipal Election Officer (MEO) of Baybay, Leyte a Certificate of
Candidacy (CoC) for mayor of Baybay on Feb. 27, 2001. However, at 11:47 pm the next day, petitioner
filed with the Provincial Election Supervisor (PES) of Leyte, whose office is based in Tacloban City, a CoC
for the position of Leyte Governor. Simultaneous to this, she filed with the same PES an Affidavit of
Withdrawal for her mayoral candidacy. The PES however refused to accept the affidavit and suggested
to petitioner that she file the withdrawal with the MEO of Baybay. In order to save time due to the
distance between Tacloban and Baybay, petitioner faxed her affidavit of withdrawal to her father in
Baybay, and the latter submitted the same to the MEO’s office at 12:28 am of March 1, 2001.

Respondents Atty. Montejo and Atty. Antoni filed with the Leyte PES a petition to deny due
course and/or to cancel petitioner’s Certificates, contending that the petitioner filed candidacies for two
positions, thus making her ineligible for both positions, as provided for by law.

On March 6, 2001, the PES referred the cases to the Law Department of the COMELEC, on the
ground that he inhibited himself due to his prior refusal to receive the petitioner’s withdrawal affidavit.
The Law Dept. studied the cases, without affording petitioner the opportunity to be heard. On April 5,
2001, the Law Dept. submitted a report and recommendation to the COMELEC en-banc, recommending
that the respondents’ cases be given due course and to direct the Leyte PES to cancel petitioner’s
candidacies for mayor and governor. COMELEC en-banc approves and adopts the Law Dept.’s
recommendation, hence this petition.

Issues:

1. Whether or not petitioner is disqualified to be governor and mayor, since she filed
candidacies for both positions.
2. Whether or not there was a valid withdrawal of the candidacy for Baybay mayor.
3. Whether or not there was a denial of procedural due process of law upon the petitioner.
Held and Ratio:

1. No. The Court rules that the filing by the petitioner of an affidavit of withdrawal for the
candidacy of mayor of Baybay with the MEO of Baybay was a substantial compliance with
the requirement of the law.
2. Yes. The Court ruled that petitioner’s withdrawal of her candidacy for mayor of Baybay was
effective for all legal purposes. A careful study and reading of Sec. 73 of BP no. 881 will show
that it is not mandatory that the candidate’s affidavit of withdrawal must be filed with the
same office where the candidacy to be withdrawn was filed; thus it can be filed with the
COMELEC’s main office, the Regional Director’s office concerned, the office of the PES of the
province concerned, or the MEO’s office in the municipality concerned.
3. Yes. The Court ruled that when the COMELEC Law Dept. conducted a study of the cases of
the respondents, it did so ex-parte; meaning that the petitioner was not afforded an
opportunity to be heard, she was not required to submit a comment to the petitions of the
respondents; she was not even aware of the proceedings for the cancellation of her CoC’s.
As consequence, the failure to notify petitioner contravenes Sec. 3, Rule 23 of the COMELEC
Rules of Procedure, where it is provided that in petitions to deny due course or cancellation
of CoC’s, the hearings for such petitions shall notify the parties’ involved.

Court GRANTS the petition. The Court ANNULS COMELEC Resolution No. 3982, adopted on 23 April
2001, and DECLARES valid petitioner's certificate of candidacy for Governor of Leyte. The Chairman,
Commision on Elections, Manila, and the provincial election supervisor of Leyte shall immediately order
the inclusion of petitioner's name in the certified list of candidates for Governor, province of Leyte, to be
posted in each polling place/voting booth in every precinct throughout the province of Leyte, in the
voters information sheet to be given to each registered voter therein, in the election returns, statement
of votes by precincts, and certificate of canvass, and all other election papers.
ALFREDO ABCEDE, petitioner, vs. HON. DOMINGO IMPERIAL, GAUDENCIO GARCIA, and SIXTO
BRILLANTES, Commisioners Elections, respondents.

[G.R. No. L-13001; March 18, 1958]

CONCEPCION, J.

Facts:

Petitioner Abcede filed his candidacy for the presidency for the upcoming November 1957
elections. Petitioner and the other candidates were summoned by the COMELEC to appear on Sept. 23,
1957, ostensibly to “show cause why their certificates should be considered as filed in good faith and to
be given due course”. After the hearing and presentation of evidence by the candidates, including the
petitioner’s evidence, the COMELEC on Oct. 4, 1957 issued a resolution, ordering the candidacy of
petitioner to be denied due course; the reason being that COMELEC found that petitioner and his
organization, the Japanese War Notes Claims Association of the Philippines Inc., were engaged in
fraudulent transactions. COMELEC avers that the denial was proper, since they were convinced that
petitioner filed his candidacy for motives other than a bona-fide desire to obtain votes of the electorate.

Furthermore, COMELEC avers that while Sec. 37 of the Revised Election Code imposes upon
them the ministerial duty to receive and acknowledge certificates of candidacies, the same law leaves
the COMELEC a measure of discretion whether to give or deny a candidate’s certificate due course,
especially in cases where they are convinced that the certificates were filed in bad faith, adding that if
the Congress were to strictly give only ministerial duty to the COMELEC to accept and acknowledge
CoC’s without giving the latter discretionary power of filtering out senseless candidacies, it would result
from excessive burden upon the COMELEC in terms of printing and distributing the copies of the CoC’s
and election forms to the whole country.

After his Motion for Reconsideration for the resolution was denied, petitioner filed with the
Supreme Court a petition for certiorari and mandamus, praying for the annulment of the COMELEC’s
resolution and for his candidacy be given due course. The Supreme Court issues a writ of preliminary
injunction against COMELEC’s resolution, in response to petitioner’s filing of petition for certiorari and
mandamus.
Issue: Whether or not COMELEC committed grave abuse in denying petitioner’s candidacy due course.

Held and Ratio: Yes. The Court ruled that Sec. 37 of the Revised Election Code does not give COMELEC
the discretion to give or deny due course to petitioner’s candidacy. Moreover, the petition provides that
COMELEC shall immediately send copies of said certificates to the provincial board secretaries.
Furthermore, the Constitution fixes the qualifications for the presidency; all possessors of such
qualifications are presumed to be legally fit, provided that they have filed their respective certificates
within the time, place and manner provided for by law; a fact that the petitioner had done so. Finally,
COMELEC has made a misconstrued the provision found in the Constitution, in that though they have
been given discretionary powers, it was not such that they can decide on matters regarding the right to
vote and the qualifications of the candidates, but rather the discretionary power bestowed upon them
by the Constitution was merely for matters of administrative nature.

Petition granted. COMELEC resolution is annulled, and the preliminary injunction issued by the Supreme
Court against COMELEC is made permanent.