You are on page 1of 61

Doctrine:

Facts:

Issue:

Ruling:

CASE #1

[G.R. No. 93867 : December 18, 1990.]


192 SCRA 358
SIXTO S. BRILLANTES, JR., Petitioner, vs. HAYDEE B. YORAC, in her capacity as ACTING CHAIRPERSON of the
COMMISSION ON ELECTIONS, Respondent.

DECISION

CRUZ, J.:

The petitioner is challenging the designation by the President of the Philippines of Associate Commissioner Haydee B. Yorac
as Acting Chairman of the Commission on Elections, in place of Chairman Hilario B. Davide, who had been named chairman
of the fact-finding commission to investigate the December 1989 coup d' etat attempt.
The qualifications of the respondent are conceded by the petitioner and are not in issue in this case. What is the power of the
President of the Philippines to make the challenged designation in view of the status of the Commission on Elections as an
independent constitutional body and the specific provision of Article IX-C, Section 1(2) of the Constitution that "(I)n no case
shall any Member (of the Commission on Elections) be appointed or designated in a temporary or acting capacity."
The petitioner invokes the case of Nacionalista Party v. Bautista, 85 Phil. 101, where President Elpidio Quirino designated the
Solicitor General as acting member of the Commission on Elections and the Court revoked the designation as contrary to the
Constitution. It is also alleged that the respondent is not even the senior member of the Commission on Elections, being
outranked by Associate Commissioner Alfredo E. Abueg, Jr.:-cralaw
The petitioner contends that the choice of the Acting Chairman of the Commission on Elections is an internal matter that
should be resolved by the members themselves and that the intrusion of the President of the Philippines violates their
independence. He cites the practice in this Court, where the senior Associate Justice serves as Acting Chief Justice in the
absence of the Chief Justice. No designation from the President of the Philippines is necessary.
In his Comment, the Solicitor General argues that no such designation is necessary in the case of the Supreme Court
because the temporary succession cited is provided for in Section 12 of the Judiciary Act of 1948. A similar rule is found in
Section 5 of BP 129 for the Court of Appeals. There is no such arrangement, however, in the case of the Commission on
Elections. The designation made by the President of the Philippines should therefore be sustained for reasons of
"administrative expediency," to prevent disruption of the functions of the COMELEC.
Expediency is a dubious justification. It may also be an overstatement to suggest that the operations of the Commission on
Elections would have been disturbed or stalemated if the President of the Philippines had not stepped in and designated an
Acting Chairman. There did not seem to be any such problem. In any event, even assuming that difficulty, we do not agree
that "only the President (could) act to fill the hiatus," as the Solicitor General maintains.
Article IX-A, Section 1, of the Constitution expressly describes all the Constitutional Commissions as "independent." Although
essentially executive in nature, they are not under the control of the President of the Philippines in the discharge of their
respective functions. Each of these Commissions conducts its own proceedings under the applicable laws and its own rules
and in the exercise of its own discretion. Its decisions, orders and rulings are subject only to review on Certiorari by this Court
as provided by the Constitution in Article IX-A, Section 7.
The choice of a temporary chairman in the absence of the regular chairman comes under that discretion. That discretion
cannot be exercised for it, even with its consent, by the President of the Philippines.
A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. No cause need be
established to justify its revocation. Assuming its validity, the designation of the respondent as Acting Chairman of the
Commission on Elections may be withdrawn by the President of the Philippines at any time and for whatever reason she sees
fit. It is doubtful if the respondent, having accepted such designation, will not be estopped from challenging its
withdrawal.chanrobles virtual law library
It is true, as the Solicitor General points out, that the respondent cannot be removed at will from her permanent position as
Associate Commissioner. It is no less true, however, that she can be replaced as Acting Chairman, with or without cause, and
thus deprived of the powers and perquisites of that temporary position.
The lack of a statutory rule covering the situation at bar is no justification for the President of the Philippines to fill the void by
extending the temporary designation in favor of the respondent. This is still a government of laws and not of men. The
problem allegedly sought to be corrected, if it existed at all, did not call for presidential action. The situation could have been
handled by the members of the Commission on Elections themselves without the participation of the President, however well-
meaning.
In the choice of the Acting Chairman, the members of the Commission on Elections would most likely have been guided by
the seniority rule as they themselves would have appreciated it. In any event, that choice and the basis thereof were for them
and not the President to make.
The Court has not the slightest doubt that the President of the Philippines was moved only by the best of motives when she
issued the challenged designation. But while conceding her goodwill, we cannot sustain her act because it conflicts with the
Constitution. Hence, even as this Court revoked the designation in the Bautista case, so too must it annul the designation in
the case at bar.
The Constitution provides for many safeguards to the independence of the Commission on Elections, foremost among which
is the security of tenure of its members. That guaranty is not available to the respondent as Acting Chairman of the
Commission on Elections by designation of the President of the Philippines.
WHEREFORE, the designation by the President of the Philippines of respondent Haydee B. Yorac as Acting Chairman of the
Commission on Elections is declared UNCONSTITUTIONAL, and the respondent is hereby ordered to desist from serving as
such. This is without prejudice to the incumbent Associate Commissioners of the Commission on Elections restoring her to the
same position if they so desire, or choosing another member in her place, pending the appointment of a permanent Chairman
by the President of the Philippines with the consent of the Commission on Appointments.: rd
SO ORDERED.
Fernan C . J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Gancayco, Padilla, Bidin, Griño-Aquino, Medialdea and
Regalado, JJ., concur.
Feliciano, J., is on leave.
Sarmiento, J., took no part.
CASE #2

G.R. No. 133486 January 28, 2000

ABS-CBN BROADCASTING CORPORATION, petitioner,


vs.
COMMISSION ON ELECTIONS, respondent.

PANGANIBAN, J.:

The holding of exit polls and the dissemination of their results through mass media constitute an essential part of the
freedoms of speech and of the press. Hence, the Comelec cannot ban them totally in the guise of promoting clean, honest,
orderly and credible elections. Quite the contrary, exit polls — properly conducted and publicized — can be vital tools in
eliminating the evils of election-fixing and fraud. Narrowly tailored countermeasures may be prescribed by the Comelec so as
to minimize or suppress the incidental problems in the conduct of exit polls, without transgressing in any manner the
fundamental rights of our people.

The Case and the Facts

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission on Elections (Comelec) en
banc Resolution No. 98-14191 dated April 21, 1998. In the said Resolution, the poll body

RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any other groups, its agents or
representatives from conducting such exit survey and to authorize the Honorable Chairman to issue the same.

The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source that ABS-CBN (Lopez Group)
has prepared a project, with PR groups, to conduct radio-TV coverage of the elections . . . and to make [an] exit survey of the
. . . vote during the elections for national officials particularly for President and Vice President, results of which shall be
[broadcast] immediately."2 The electoral body believed that such project might conflict with the official Comelec count, as well
as the unofficial quick count of the National Movement for Free Elections (Namfrel). It also noted that it had not authorized or
deputized Petitioner ABS-CBN to undertake the exit survey.

On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner. We directed the Comelec to
cease and desist, until further orders, from implementing the assailed Resolution or the restraining order issued pursuant
thereto, if any. In fact, the exit polls were actually conducted and reported by media without any difficulty or problem.

The Issues

Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave abuse of discretion amounting
to a lack or excess of jurisdiction when it approved the issuance of a restraining order enjoining the petitioner or any [other
group], its agents or representatives from conducting exit polls during the . . . May 11 elections."3

In his Memorandum,4 the solicitor general, in seeking to dismiss the Petition, brings up additional issues: (1) mootness and (2)
prematurity, because of petitioner's failure to seek a reconsideration of the assailed Comelec Resolution.

The Court's Ruling

The Petition5 is meritorious.

Procedural Issues:

Mootness and Prematurity

The solicitor general contends that the petition is moot and academic, because the May 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 specifically 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 Paño, 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, specifically 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 or 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 qualified individuals or groups of individuals for the purpose of
determining the probable result of an election by confidentially asking randomly selected voters whom they have voted for,
immediately after they have officially 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
fifteen administrative regions."

It argues that the holding of exit polls and the nationwide reporting their results are valid exercises of the freedoms of speech
and of the press. It submits that, in precipitately and unqualifiedly 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 influence 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 official 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 defined: 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.

The freedom of expression is a means of assuring individual self-fulfillment, of attaining the truth, of securing participation by
the people in social and political decision-making, and of maintaining the balance between stability and change. 17 It represents
a profound commitment to the principle that debates on public issues should be uninhibited, robust, and wide open.18 It means
more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, or to
take refuge in the existing climate of opinion on any of public consequence. And paraphrasing the eminent Justice Oliver
Wendell Holmes,19 we stress that the freedom encompasses the thought we hate, no less than the thought we agree with.

Limitations

The realities of life in a complex society, however, preclude an absolute exercise of the freedoms of speech and of the press.
Such freedoms could not remain unfettered and unrestrained at all times and under all circumstances. 20They are not immune
to regulation by the State in the exercise of its police power.21 While the liberty to think is absolute, the power to express such
thought in words and deeds has limitations.

In Cabansag v. Fernandez22 this Court had occasion to discuss two theoretical test in determining the validity of restrictions to
such freedoms, as follows:

These are the "clear and present danger" rule and the "dangerous tendency" rule. The first, as interpreted in a
number of cases, means that the evil consequence of the comment or utterance must be "extremely serious and the
degree of imminence extremely high" before the utterance can be punished. The danger to be guarded against is the
"substantive evil" sought to be prevented. . . .23

The "dangerous tendency" rule, on the other hand, . . . may be epitomized as follows: if the words uttered create a
dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that
some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be
advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to
acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to
bring about the substantive evil which the legislative body seeks to prevent. 24

Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its earlier decisions in Primicias v.
Fugoso25 and American Bible Society v. City of Manila;26 as well as in later ones, Vera v. Arca,27 Navarro v. Villegas,28 Imbong
v. Ferrer,29 Blo Umpar Adiong v. Comelec30 and, more recently, in Iglesia ni Cristo v. MTRCB.31In setting the standard or test
for the "clear and present danger" doctrine, the Court echoed the words of Justice Holmes: "The question in every case is
whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that
they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." 32

A limitation on the freedom of expression may be justified only by a danger of such substantive character that the state has a
right to prevent. Unlike in the "dangerous tendency" doctrine, the danger must not only be clear but also present. "Present"
refers to the time element; the danger must not only be probable but very likely to be inevitable. 33The evil sought to be
avoided must be so substantive as to justify a clamp over one's mouth or a restraint of a writing instrument.34

Justification for a Restriction

Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is treated an exemption. The
power to exercise prior restraint is not to be presumed; rather the presumption is against its validity. 35 And it is respondent's
burden to overthrow such presumption. Any act that restrains speech should be greeted with furrowed brows, 36 so it has been
said.

To justify a restriction, the promotion of a substantial government interest must be clearly shown. 37 Thus:

A government regulation is sufficiently justified if it is within the constitutional power of the government, if it furthers an
important or substantial government interest; if the governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the
furtherance of that interest.38

Hence, even though the government's purposes are legitimate and substantial, they cannot be pursued by means that broadly
stifle fundamental personal liberties, when the end can be more narrowly achieved. 39

The freedoms of speech and of the press should all the more be upheld when what is sought to be curtailed is the
dissemination of information meant. to add meaning to the equally vital right of suffrage. 40 We cannot support any ruling or
order "the effect of which would be to nullify so vital a constitutional right as free speech." 41 When faced with borderline
situations in which the freedom of a candidate or a party to speak or the freedom of the electorate to know is invoked against
actions allegedly made to assure clean and free elections, this Court shall lean in favor of freedom. For in the ultimate
analysis, the freedom of the citizen and the State's power to regulate should not be 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. 42

True, the government has a stake in protecting the fundamental right to vote by providing voting places that are safe and
accessible. It has the duty to secure the secrecy of the ballot and to preserve the sanctity and the integrity of the electoral
process. However, in order to justify a restriction of the people's freedoms of speech and of the press, the state's responsibility
of ensuring orderly voting must far outweigh them.

These freedoms have additional importance, because exit polls generate important research data which may be used to study
influencing factors and trends in voting behavior. An absolute prohibition would thus be unreasonably restrictive, because it
effectively prevents the use of exit poll data not only for election-day projections, but also for long-term research.43

Comelec Ban on Exit Polling

In the case at bar, the Comelec justifies its assailed Resolution as having been issued pursuant to its constitutional mandate
to ensure a free, orderly, honest, credible and peaceful election. While admitting that "the conduct of an exit poll and the
broadcast of the results thereof [are] . . . an exercise of press freedom," it argues that "[p]ress freedom may be curtailed if the
exercise thereof creates a clear and present danger to the community or it has a dangerous tendency." It then contends that
"an exit poll has the tendency to sow confusion considering the randomness of selecting interviewees, which further make[s]
the exit poll highly unreliable. The probability that the results of such exit poll may not be in harmony with the official count
made by the Comelec . . . is ever present. In other words, the exit poll has a clear and present danger of destroying the
credibility and integrity of the 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 reflective 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
official 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 qualification 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' answer 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.1âwphi1.nêt

In 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 influences is insufficient 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
impermissible, so is regulating speech via an exit poll restriction. 47

The absolute ban imposed by the Comelec cannot, therefore, be justified. 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 specific 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 interviewed, and that the interview is not part of the official balloting process. The
pollsters may further be required to wear distinctive clothing that would show they are not election officials. 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 behavior, could ensure a clean, safe and orderly election.

For its part, petitioner ABS-CBN explains its survey methodology as follows: (1) communities are randomly selected in each
province; (2) residences to be polled in such communities are also chosen at random; (3) only individuals who have already
voted, as shown by the indelible ink on their fingers, are interviewed; (4) the interviewers use no cameras of any sort; (5) the
poll results are released to the public only on the day after the elections.49 These precautions, together with the possible
measures earlier stated, may be undertaken to abate the Comelec's fear, without consequently and unjustifiably stilling the
people's voice.

With the foregoing premises, we conclude that the interest of the state in reducing disruption is outweighed by the drastic
abridgment of the constitutionally guaranteed rights of the media and the electorate. Quite the contrary, instead of disrupting
elections, exit polls — properly conducted and publicized — can be vital tools for the holding of honest, orderly, peaceful and
credible elections; and for the elimination of election-fixing, fraud and other electoral ills.

Violation of Ballot Secrecy

The contention of public respondent that exit polls indirectly transgress the sanctity and the secrecy of the ballot is off-tangent
to the real issue. Petitioner does not seek access to the ballots cast by the voters. The ballot system of voting is not at issue
here.

The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. Thus, voters are
prohibited from exhibiting the contents of their official ballots to other persons, from making copies thereof, or from putting
distinguishing marks thereon so as to be identified. Also proscribed is finding out the contents of the ballots cast by particular
voters or disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden is the association
of voters with their respective votes, for the purpose of assuring that the votes have been cast in accordance with the
instructions of a third party. This result cannot, however, be achieved merely through the voters' verbal and confidential
disclosure to a pollster of whom they have voted for.

In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of whom an elector has
voted for is not compulsory, but voluntary. Voters may also choose not to reveal their identities. Indeed, narrowly tailored
countermeasures may be prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct of exit
polls, without transgressing the fundamental rights of our people.

WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the Court on May 9, 1998 is made
PERMANENT. Assailed Minute Resolution No. 98-1419 issued by the Comelec en banc on April 21, 1998 is hereby
NULLIFIED and SET ASIDE. No costs.

SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Quisumbing, Purisima, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ.,
concur.
Kapunan, J., see dissenting opinion.
Vitug, J., please see separate opinion.
Melo and Mendoza, JJ., are join the separate opinion of Justice Vitug.
Pardo, J., took no part.

Separate Opinions

KAPUNAN, J., dissenting opinion;

I share the view of Justice Jose C. Vitug in his Separate Opinion that the case is technically moot. Since the Comelec has not
declared exit polls to be illegal and neither did the petitioner present its methodology or system of conducting the exit polls to
the poll body, the nullification of the Comelec's questioned resolution is bereft of empirical basis. The decision of this Court
constitutes a mere academic exercise in view of the premature nature of the issues and the lack of "concreteness" of the
controversy. I wish however, to express my thoughts on a few material points.

The majority opinion cites the general rules that any restrictions to freedom of expression would be burdened with a
presumption of invalidity and should be greeted with "furrowed brews."1 While this has been the traditional approach, this rules
does not apply where, as in this case, the Comelec exercised its Constitutional functions of securing the secrecy and sanctity
of the ballots and ensuring the integrity of the elections. Thus, Mr. Justice Feliciano in National Press (NPC)
v. Comelec2 wrote:

The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises
in respect of supervisory or regulatory authority on the part of the COMELEC for the purpose of securing equal
opportunity among candidates for political office, although such supervision or regulation may result in some limitation
of the 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:

. . . the clear-and-present danger test is not, however, a sovereign remedy for all free speech problems. As has been
pointed out by a thoughtful student of constitutional law, it was originally formulated for the criminal law and only later
appropriated for free speech cases. For the criminal law is necessarily concerned with the line at which innocent
preparation ends and guilty conspiracy or attempt begins. Clearly, it is inappropriate as a test for determining the
constitutional validity of law which, like §11(b) of R.A. No. 6646, are not concerned with the content of political ads but
only with their incidents. To apply the clear-and-present danger test to such regulatory measures would be like using
a sledgehammer to drive a nail when a regular hammer is all that is needed. 6

On the matter of methodology in conducting polls, petitioner gave assurance that the exit poll results will only be made public
a day after the elections, in order to allay fears of "trending," "bandwagon-effect" or disruption. This offers little comfort
considering the state of our country's electoral system. Unlike in other countries where voting and counting are computerized,
our elections are characterized by snail-paced counting. It is not infrequent that postponement, failure or annulment of
elections occur in some areas designated as election hot spots.7 Such being the case, exit poll results made public after the
day of voting in the regular elections but before the conduct of special elections in these areas may potentially pose the
danger of "trending," "bandwagon-effect" and disruption of elections.

In view of the foregoing discussion, I believe the Comelec committed no abuse of discretion in issuing the assailed temporary
restraining order stopping petitioner from conducting exit polls. I, therefore, vote to DENY the petition.

VITUG, J., separate opinion;

The instant petition, now technically moot, presents issues so significantly that a slights change of circumstances can have a
decisive effect on, and possibly spell a difference in, the final 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.

Neither of the advocations proffered by the parties in this instance, I believe, should be foreclosed by the Court at this time.

I vote, therefore, to dismiss the petition on the foregoing thesis.

Footnotes

1 Rollo, p. 14.

2 Ibid. Words in parentheses in the original; those in brackets supplied.

3 Petition, p. 4.

4 Rollo, p. 78 et seq.

5 This case was deemed submitted for resolution on January 19, 1999, upon receipt by the Court of the Memorandum
for the Respondent.

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.

8 Solis v. NLRC, 263 SCRA 629, October 28, 1996.

9 Zurbano Sr. v. NLRC, 228 SCRA 556, December 17, 1993.

10 Alfante v. NLRC, 283 SCRA 340, December 15, 1997; Saldana v. Court of Appeals, 190 SCRA 386, October 11,
1990.
11 Republicv. Sandiganbayan, 269 SCRA 316, March 7, 1997; Gelmart Industries Phils., Inc. v. NLRC, 176 SCRA
295, August 10, 1989; Philippine Air Lines Employees Association v. Philippine Air Lines, Inc., 111 SCRA 215,
January 30, 1982.

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 a Cruz Paño, 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.

15 § 4, Art. III of the Constitution.

16 Supra, p. 856, per Fernando, J. (later CJ).

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).

19 US v. Schwimmer, 279 US 644 (1929).

20 Ibid., p. 858.

21 Badoy Jr. v. Comelec, 35 SCRA 285, 289, October 17, 1970.

22 102 Phil 152, October 18, 1957, per Bautista-Angelo, J.

23 Ibid., p. 161.

24 Ibid., citing Gitlow v. New York, 268 US 652, 69 L ed. 1138 (1925).

25 80 Phil 71 (1948).

26 101 Phil 386 (1957).

27 28 SCRA 351, May 26, 1969.

28 31 SCRA 731, February 261 1970.

29 35 SCRA 28, September 11, 1970.

30 Supra.

31 259 SCRA 529, July 26, 1996.

32 Cabansag v. Fernandez, supra; citing Schenck v. US, 249 US 47 (1919).

33 Gonzales v. Comelec, supra, pp. 860-861.

34 Adiong v. Comelec, supra.

35 Iglesia ni Cristo v. Court of Appeals, supra; Gonzales v. Katigbak, 137 SCRA 717, July 22, 1985.

36 Iglesia
ni Cristo v. Court of Appeals, supra, pp. 545-546; citing Near v. Minnesota, 283 US 697 (1931); Bantam
Books, Inc. v. Sullivan, 372 US 58 (1963); and New York Times Co. v. Sullivan, supra.
37 Blo Umpar Adiong v. Comelec, supra. See also National Press Club v. Comelec, supra.

38 Adiong v. Comelec, supra.

39 Gonzales v. Comelec, supra, p. 871, citing Shelton v. Tucker, 364 US 479, 488.

40 Mutuc v. Comelec, 36 SCRA 228, 233-34, November 26, 1970; per Fernando, J. (later CJ).

41 Ibid., p. 236.

42 Adiong v. Comelec, supra.

43 Exit Polls and the First Amendment, 98 Harvard Law Review 1927 (1985).

44 See CBS v. Smith, 681 F. Supp. 794 (SD Fla. 1988).

45 See § 261 (d, e, f, k & z-11). See also Arts. 148, 149 & 153 of the Revised Penal Code.

46 838 F 2d 380 (9th Cir. 1988).

47 Ibid.,
citing Mills v. Alabama, 384 US 214, 218-20, 86 S Ct. 1434, 1436-37, 16 L Ed. 2d 484 (1966); Vanasco v.
Schwartz, 401 F Supp. 87, 100 (SDNY 1975), aff'd mem., 423 US 1041, 96 S. Ct. 763, 46 L Ed. 2d 630 (1976).

48 Exit Polls and the First Amendment, supra, p. 1935.

49 Petitioner's Memorandum, p. 15.

KAPUNAN, J., dissenting opinion;

1 Iglesia ni Crislo vs. MTRCB, 259 SCRA 529 (1996).

2 207 SCRA 1 (l992).

3 Ibid,
citing as examples: Abbas vs. Commission on Elections, 179 SCRA 287 (1989); People vs. Dacuycuy, 173
SCRA 90 (1989); Heirs of Ordera vs. Reyes, 125 SCRA 380 (1983) (sic); Peralta vs. Commission on Elections, 82
SCRA 30 (1978); Solar vs. Jarencio, 46 SCRA 734 (1972).

4 Thenorm embodied in Article IX (C) (4) of the Constitution in the NPC case aims to equalize opportunity, time and
space, and the right to reply in the use of media for campaign purposes.

5 CONST. art V, sec. 2; art IX (C), sec. 2 (1).

6 Osmeña vs. Comelec, 288 SCRA 447 (1998).

7 BATAS PAMBANSA BLG. 881 (as amended), secs. 5 & 6 and R.A No. 7166, sec. 4. These situations are replete
with cases; see for e.g. Hassan vs. Comelec, 264 SCRA 125 (1996); Sanchez vs. Comelec, 145 SCRA 454 (1982);
Mangudadatu vs. Comelec, G.R. No. 86053, May 4, 1989; Barabu vs. Comelec, G.R. No. 78820, May 17, 1988.
CASE #3

G.R. No. L-52713 January 31, 1985

GELACIO I. YASON, petitioner,


vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPAL BOARD OF CANVASSERS OF ROXAS, ORIENTAL MINDORO,
and LUCIO T. SUAREZ, JR., respondents.

GUTIERREZ, JR., J.:

Gelacio I. Yason filed this petition for certiorari and mandamus — (1) to set aside the resolution of respondent Comelec
mission on Elections (COMELEC) which denied due course to his candidacy for Mayor of Roxas, Oriental Mindoro for having
changed his party affiliation; (2) to set aside the resolution of COMELEC which declared Lucio T. Suarez, Jr. as the duly
elected Mayor after it had ordered all votes cast for Yason to be considered stray votes; and (3) to order COMELEC or the
Municipal Board of Canvassers to proclaim petitioner Yason, who had obtained the highest number of votes, as the duly
elected Mayor.

On January 4, 1980 at 2:45 in the afternoon, petitioner Yason filed his certificate of candidacy for Mayor of Roxas, Oriental
Mindoro with the Municipal Election Registrar. On the blank space in Item No. 4 indicating "Political Party/Group or
Aggrupation," he stated "Nationalists, (NP)." Shortly afterwards, Yason had a change of mind. A few minutes before midnight
of the same day, he went back to the municipal election registrar, asked for the certified of candidacy he had filed that
afternoon, and erased the words and letters, "Nationalista, (NP)." Over the erased items, he typed "Kilusang Bagong Lipunan
(KBL)." The same thing was done for Item No. 5, "state if nominated by Political Party/Group or Aggrupation" where the word
"Yes" was erased and "Kilusang Bagong Lipunan (KBL)" typed clearly as the answer. Both changes in Items 4 and 5 were
initialed by Mr. Yason.

Around January 10, 1980, the chairman of the Nationalista Party for the province of Oriental Mindoro submitted the NP
candidates for local positions. Allegedly unknown to the petitioner, his name was included in the complete NP line-up of
candidates for his municipality.

On the morning of election day on January 30, 1980, after the petitioner came to know from the Certified List of Candidates
furnished by the COMELEC for posting in election booths and guidance of citizens' election committees that COMELEC had
listed him in the official line-up of NP candidates, he immediately disclaimed knowledge of his having been nominated by the
NP provincial chapter. He sent a telegram to COMELEC, attention Law Department, which reads:

SIR:

THIS IS IN CONNECTION WITH THE PARTY AFFILIATION IN WHICH ALL CANDIDATES UNDER MY
FACTION WERE LISTED OFFICIALLY UNDER THE NATIONALISTA PARTY.

RECORDS WOULD SHOW THAT MY CANDIDACY AND THAT OF THE VICE-MAYOR AND EIGHT
COUNCILORS FILED THEIR CERTIFICATES OF CANDIDACY UNDER THE KILUSANG BAGONG
LIPUNAN (KBL).

WE WANT TO PUT ON RECORD THAT WE HAVE NOT CHANGED OR AUTHORIZED ANY


REPRESENTATIVE TO CHANGE OFFICIALLY OUR PARTY FROM KBL TO NATIONALISTA PARTY.

THANK YOU.

VERY TRULY YOURS,

ENGR. GELACIO I.
YASON
CANDIDATE FOR MAYOR
ROXAS OR MINDORO
Yason also sent a formal letter to COMELEC, copy furnished the Roxas Election Registrar, embodying the same protest.

After the canvass of election returns was completed on February 1, 1980, the respondent Board of Canvassers certified that
the number of votes obtained by the candidates were:

Yason . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933

Suarez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,568

thus indicating that Yason won by 365 votes over Suarez. Incidentally, only Yason and one councilor in his line-up won. The
winning candidate for vice-mayor, Oscar C. Sison, and seven of the eight councilors who won were in the ticket of respondent
Suarez. Councilor Venancio Yap, the sole candidate who won with petitioner Yason placed fifth among the elected councilors.

A day later, on February 2, 1980, Suarez filed with COMELEC a petition for disqualification of Yason as candidate for mayor.
Notice of the petition or a copy thereof was not furnished the petitioner. Two days later, on February 4, 1980, without the
petitioner having been given an opportunity to controvert, comment upon, or answer the petition, the COMELEC issued the
questioned resolution which denied due course to the candidacy of Yason. Having secured a copy of the resolution on his
own initiative, Yason filed on February 11, 1980 a motion for reconsideration followed by a motion to suspend proclamation of
the mayor of Roxas, Oriental Mindoro.

On February 13, 1980, the COMELEC ordered the citizens' election committee and the election registrar of Roxas to consider
all votes cast for Yason as stray and to declare Lucio T. Suarez as duly elected mayor.

The petitioner contends that respondent COMELEC acted without jurisdiction or with grave abuse of discretion in issuing the
questioned resolutions.

On February 26, 1980, this Court restrained the respondents from enforcing the questioned resolutions. The restraining order
was later modified to enjoin respondent Suarez from assuming the office of mayor and from discharging the duties of the
mayorship.

On March 18, 1980, respondent Suarez filed a comment and counter-petition with this Court. In this counter-petition, Suarez
stated that the municipal board of canvassers proclaimed Yason as mayor-elect on March 2, 1980. He also asks that this
proclamation be set aside.

In this petition, Yason raises the following issues for consideration:

I. THE COMELEC, AFTER THE ELECTION AND ALL THE VOTES WERE PROPERLY CANVASSED (AND
WINNER PROCLAIMED) HAVE NO MORE POWER OR JURISDICTION TO CANCEL A CERTIFICATE OF
CANDIDACY OR DISQUALIFY PETITIONER AS A CANDIDATE;

II. THE COMELEC HAS NO JURISDICTION TO ENTERTAIN THE PETITION FOR DISQUALIFICATION,
THE SAME HAVING BEEN FILED OUT OF TIME; and

III. PETITIONER, BEFORE THE COMELEC WAS DENIED DUE PROCESS OF LAW.

Under the facts of this case, may petitioner Yason be denied the mayorship of Roxas, Oriental Mindoro on the ground of
turncoatism?

There is no question from the records that Yason received 3,933 votes against the 3,568 votes cast for Suarez. The elections
were clean and orderly. As a matter of fact, only Yason and Councilor Venancio Yap managed to win. The vice-mayoral
candidate and seven out of eight candidates for councilor who emerged winners all belonged to the Suarez camp. There is no
indication of any frauds and malpractices as would indicate a tampering with the people's choice. The only issue raised
against the petitioner is "turncoatism."

The provision applicable to the case of petitioner Yason is Section 10, Article XII-C of the Constitution as it was worded during
the 1980 local elections. At that time, it read:
SEC. 10. No elective public officer may change his political party affiliation during his term of office, and no
candidate for any elective public office may change his political party affiliation within six months immediately
preceding or following an election.

On April 7, 1981, the above provision was amended by the addition of the phrase "unless otherwise provided by law" at its
end after the word "election."

In Luna v. Rodriguez (39 Phil. 208) decided on November 29, 1918, this Court stressed the basic principle which has
governed all elections in our country from the early years of democratic government up to the present. This Court stated:

... The purpose of an election is to give the voters a direct participation in the affairs of their government,
either in determining who shall be their public officials or in deciding some question of public interest; and for
this purpose, all of the legal voters should be permitted, unhampered and unmolested, to cast their ballots.
When that is done, and no frauds have been committed, the ballot should be counted and the election should
not be declared null Innocent voters should not be deprived of their participation in the affairs of their
government for mere irregularities on the part of election officers for which they are in no way responsible. A
different rule would make the manner and method of performing a public duty of greater importance than the
duty itself.

In elections, the first consideration of every democratic polity is to give effect to the expressed will of the majority. It is true that
constitutional and statutory provisions requiring compliance with measures intended to enhance the quality of our democratic
institutions must be obeyed. The restriction against turncoatism is one such measure. However, even as there should be
compliance with the provision on turncoatism, an interpretation in particular cases which respects the free and untrammelled
expression of the voters' choice must be followed in its enforcement.

The various and numerous provisions of the Election Law were adopted to assist the voters in their participation in the affairs
of the Government and not to defeat that object. (Villavert v. Former, 84 Phil. 756, 763). Election cases involve not only the
adjudication of the private interests of rival candidates but also the paramount need of dispelling the uncertainty which
beclouds the real choice of the electorate with respect to who shall discharge the prerogatives of the offices within their gift.
They are imbued with public interest. (Vda. de Mesa v. Mencias, 18 SCRA 533, 538) The disenfranchisement of electors is
not favored. (Lloren v. Court of Appeals, et al., 19 SCRA 110). This is especially true where the majority of voters are sought
to be disenfranchised.

Applying the above rules to the interpretation of the turncoatism provision in the light of the facts of this case, we find merit in
the petition.

The records are not precise and definite about petitioner Yason's being a turncoat as defined by the Constitution. Up to the
day he filed his certificate of candidacy, Yason's choice as to whether he would remain with the KBL as an independent KBL
candidate or move over to the welcoming Nationalista Party was marked by vacillation.

Yason's final decision was, however, clear and beyond doubt. Notwithstanding the unholy hour before midnight, on January 4,
1980, Yason withdrew the certificate of candidacy he had earlier filed that afternoon, erased "Nationalists (NP)" from the
space denoting party affiliation, typed "Kilusang Bagong Lipunan (KBL)" thereon and initialed the change. And to remove any
doubts about his choice, he erased the word "Yes" from the query whether he was nominated by a political party and instead
typed "Kilusang Bagong Lipunan (KBL)" followed by his initials.

There is no provision of law forbidding the withdrawal of candidacy at any time before election. As a matter of fact, the law
does not require that the withdrawal of a certificate so as to validate a second filing of another certificate of candidacy must be
made on or before the deadline for filing candidacies. (Montinola v. Commission on Elections, 98 Phil. 220). By the same
token, once entries in a certificate of candidacy are corrected, it is the corrected version which is considered filed and not the
earlier one.

The records do not show that Yason ever affiliated with the Nationalists Party or that he signed any NP membership form or
took his oath as an NP member. The only records available show him as still belonging to the KBL. The petitioner has
submitted campaign leaflets which indicate that he was running as a KBL candidate and that his campaign motto was
"Umunlad sa Bagong Lipunan — Boy Yason ang ating Kailangan."

The private respondent has introduced affidavits to show that the local Nacionalista Party of Roxas, Oriental Mindoro
campaigned for Yason as its own candidate for mayor. Apart from protesting his inclusion in the NP line-up of the provincial
chapter and formally disowning such support in a telegram and letter to COMELEC, the petitioner has not shown what other
measures he took. Nevertheless, we cannot categorically tag Yason as a "turncoat" under the law simply because he did not
reject more strongly the support which another party voluntarily gave to him.

There are other reasons for granting this petition.

A petition to disqualify a candidate, as would validly cancel any votes cast for him as "stray votes" if granted, should be filed
before the day of elections. This will enable a substitute candidacy to be filed thus giving the electorate a choice of alternative
candidates. (See Section 28, P.D. No. 1296, Election Code of 1978).

For the 1980 local elections, the COMELEC promulgated Resolution No. 8434 which mandated that the exact deadline for the
filing of petitions for disqualification was "5:00 o'clock P.M., Friday, January 25, 1980." The mandatory nature of the deadline
is explicit from the statement of an exact hour, day and date.

Respondent Suarez filed his petition for the disqualification of Yason on February 2, 1980 after the results of the elections
were already known. Suarez has submitted a copy of a letter he allegedly wrote to COMELEC dated January 25, 1980
protesting the turncoatism of Yason and stating that a formal petition would follow. The authenticity of this letter is doubtful
because it is dated January 25, 1980 and yet, it was supposed to have been received that same day in Manila. Suarez was
campaigning for the January 30 elections in the distant town of Roxas, Oriental Mindoro. It is not shown what he was doing in
Manila five days before a hotly contested election. To reach Roxas, one has to take a car or bus ride from Manila to Batangas
City, a ferry ride of several hours to Calapan, and at least six hours ride over rough roads to reach Roxas. At any rate, even if
filed on January 25, 1980, whoever initialed its receipt by the COMELEC Law Division was careful to extricate himself or
herself from a potentially difficult situation by pointedly entering "6:00 P.M." as the time of receipt or one hour after the official
deadline. Moreover, COMELEC was completely unaware of the letter because it acted only after the February 2, 1980 petition
was filed. There is absolutely no mention in the petition that an informal letter had earlier been filed.

We rule that the petition to disqualify the petitioner was filed long after the deadline for filing had lapsed. Moreover,
considering its lack of merit it may not be validated on equitable grounds.

The provision on turncoatism was incorporated in the 1973 Constitution to bring about disciplined political parties with
dedicated party followers. The shift to a parliamentary system at this time was clear. The President was a nominal Head of
State while executive power was exercised by the Prime Minister and his Cabinet. The Prime Minister under the 1973
Constitution, as Chief of State, was elected by the National Assembly, remained a member of the Parliament during Ms tenure
as Chief Executive, and could be removed by a no confidence majority vote of the legislature. The Constitution has since
been amended to have a President elected nationwide for a fixed term who can be removed by the legislature only through
impeachment. However, whether the government is pure parliamentary, modified parliamentary, pure presidential, or modified
presidential, it cannot be denied that the turncoatism provision represents an Ideal objective. The opposition party should be
strong, organized, and united in its challenge. It should be more or less permanent, not broken up into squabbling factions
after being defeated in an election. It should present a viable alternative program of government so that when elected to
political power, the people can exact strict compliance with its promises and platforms.

Unfortunately, the 1980 experience showed that perhaps disciplined political parties with faithful and dedicated members
cannot be organized through unduly strict and peremptory legislation. Perhaps, voluntary action through evolutionary
processes helped along by carefully crafted legislation would have been preferable. At any rate, the Constitution was
amended in 1981 such that the provision on "turncoatism" would be enforced, "unless otherwise provided by law."

Batas Pambansa Blg. 697 governing the 1984 elections for Batasan members provided otherwise — "any person, including
an elective official, may change his party affiliation for purposes of the election herein provided for." Thus, a candidate for the
Batasan may change his party affiliation even within the proscribed term or period.

True, the same Section 14 of Batas Pambansa Big. 697 provides that pending disqualification cases before the COMELEC or
the Supreme Court based on "turncoatism" shall not be affected by the provisions of the section. Nonetheless, the spirit
behind the enactment of Section 14, B.P. Blg. 697 as an exception to the turncoatism provision of the Constitution constrains
us to adopt a liberal view in applying the law to the facts of the case before us to insure that the win of the people of Roxas,
Negros Oriental expressed through their ballots shall be respected.

WHEREFORE, the petition is hereby GRANTED. The questioned resolutions of respondent Commission on Elections are
SET ASIDE. The proclamation of petitioner Gelacio I. Yason as duly elected Mayor of Roxas, Oriental Mindoro is AFFIRMED.
The temporary restraining order dated February 26, 1980 as subsequently modified is made PERMANENT.

SO ORDERED.
Concepcion Jr., Melencio-Herrera, Plana, Escolin, De la Fuente and Cuevas, JJ., concur.

Abad Santos and Alampay, JJ., took no part.

Makasiar, J., I reserve my vote.

Fernando, C.J., is on leave.

Separate Opinions

AQUINO, J., concurring:

I concur in the result. Yason's case is similar to Rodolfo C. Fariñas who on Jan. 4, 1980 filed his certificate of candidacy as a
Nacionalista but at 4 p.m. of the same day he filed another certificate as the official KBL candidate. He was elected (106
SCRA 202). Yason's certificate of candidacy in Nos. 4 and 5 clearly indicates that he was a KBL candidate like Suarez, his
opponent. Yason's election must be upheld.

RELOVA, J., concurring:

I concur on the ground that petitioner Yason won by a clear majority of 365 votes over private respondent Suarez, Jr.

TEEHANKEE, Acting CJ., concurring:

The Court's decision at bar rightfully reaffirms the basic and fundamental democratic principle that the people's will and
undeniable right as "particles of sovereignty" to elect officials of their unfettered choice should be respected and not defeated
or frustrated by material defects in the winning candidate's certificate of candidacy (such as in the case of Yra vs. Abaño 52
Phil. 380, where the winning candidate's election as president of Meycauayan was upheld despite his not being a registered
elector of that municipality).

It marks, I trust, a breakaway from the better-forgotten case of Ticzon vs. Comelec, 103 SCRA 671, (and other similar cases)
involving the mayoralty election for San Pablo City on January 30, 1980. In that case, despite three successive restraining
orders issued by this Court against the Comelec orders suspending the canvass, replacing the original canvassing board with
a new and more pliant board and transferring the venue of the canvassing to Manila and the last of which enjoined enforcing
of the Comelec's post-election 11th hour resolution disqualifying Ticzon as a "turncoat" (dated February 12, 1980 but released
only on February 14, 1980 when the canvassing showed Ticzon with an insurmountable margin of 2,994 votes with only 62
more precincts to be tallied), the Court upheld (by a vote of seven to four) the Comelec's post-election disqualification of
Ticzon as the winning candidate for alleged turncoatism, disenfranchised more than half of the city's electorate, 30,178 voters
for Ticzon (as against Dizon's 28,119 votes, 1,959 short of Ticzon's) by not counting them as "stray votes", and ordered the
proclamation of the loser Dizon as "the remaining winning candidate" — with "no opponent". Comelec had disqualified Ticzon
after the election as a 'turncoat" for having run as/an oppositionist Liberal in 1971 and nine years later as
an oppositionist Nacionalista (after first filing as an independent) in the 1980 election against the dominant KBL candidate,
Dizon, who had been elected in both the 1967 and 1971 elections as the then dominant Nacionalista official candidate.
Prescinding from the fact that Ticzon presented evidence that he had been expelled by the Liberal Party after the 1971
election for having run as a rebel Liberal candidate, the fact is that in Potencion vs. Comelec, 99 SCRA 595, the Comelec
"dismissed the disqualification case against respondent for switching from Liberal Party (under which he was elected) to the
KBL on the ground that 'the Liberal-Party may be deemed to have become inexistent as it did not nominate candidates both in
the elections of 1978 and 1980.' " But the Comelec in Ticzon's case, did not equally apply this reasoning and ruling in the case
of the winner Ticzon who became partyless and switched from the "inexistent" Liberal Party not to the dominant KBL (as the
loser Dizon did, switching from the former majority Nacionalista Party under which he was elected) but to the opposition
Nacionalista Party — violating, in my view, the very spirit of the cited constitutional provision against turncoatism, which is to
curtail opportunism and desertion of the opposition ranks. As noted in the Court's decision, the Constitution amendment in
1981 has now made enforcement of the said constitutional provision dependent upon the law, which may "provide otherwise,"
as in fact, B.P. Blg. 697 governing the 1984 elections did so provide otherwise and allowed changes of party affiliation.

Separate Opinions

AQUINO, J., concurring:

I concur in the result. Yason's case is similar to Rodolfo C. Fariñas who on Jan. 4, 1980 filed his certificate of candidacy as a
Nacionalista but at 4 p.m. of the same day he filed another certificate as the official KBL candidate. He was elected (106
SCRA 202). Yason's certificate of candidacy in Nos. 4 and 5 clearly indicates that he was a KBL candidate like Suarez, his
opponent. Yason's election must be upheld.

RELOVA, J., concurring:

I concur on the ground that petitioner Yason won by a clear majority of 365 votes over private respondent Suarez, Jr.

TEEHANKEE, Acting CJ., concurring:

The Court's decision at bar rightfully reaffirms the basic and fundamental democratic principle that the people's will and
undeniable right as "particles of sovereignty" to elect officials of their unfettered choice should be respected and not defeated
or frustrated by material defects in the winning candidate's certificate of candidacy (such as in the case of Yra vs. Abaño 52
Phil. 380, where the winning candidate's election as president of Meycauayan was upheld despite his not being a registered
elector of that municipality).

It marks, I trust, a breakaway from the better-forgotten case of Ticzon vs. Comelec, 103 SCRA 671, (and other similar cases)
involving the mayoralty election for San Pablo City on January 30, 1980. In that case, despite three successive restraining
orders issued by this Court against the Comelec orders suspending the canvass, replacing the original canvassing board with
a new and more pliant board and transferring the venue of the canvassing to Manila and the last of which enjoined enforcing
of the Comelec's post-election 11th hour resolution disqualifying Ticzon as a "turncoat" (dated February 12, 1980 but released
only on February 14, 1980 when the canvassing showed Ticzon with an insurmountable margin of 2,994 votes with only 62
more precincts to be tallied), the Court upheld (by a vote of seven to four) the Comelec's post-election disqualification of
Ticzon as the winning candidate for alleged turncoatism, disenfranchised more than half of the city's electorate, 30,178 voters
for Ticzon (as against Dizon's 28,119 votes, 1,959 short of Ticzon's) by not counting them as "stray votes", and ordered the
proclamation of the loser Dizon as "the remaining winning candidate" — with "no opponent". Comelec had disqualified Ticzon
after the election as a 'turncoat" for having run as/an oppositionist Liberal in 1971 and nine years later as
an oppositionist Nacionalista (after first filing as an independent) in the 1980 election against the dominant KBL candidate,
Dizon, who had been elected in both the 1967 and 1971 elections as the then dominant Nacionalista official candidate.
Prescinding from the fact that Ticzon presented evidence that he had been expelled by the Liberal Party after the 1971
election for having run as a rebel Liberal candidate, the fact is that in Potencion vs. Comelec, 99 SCRA 595, the Comelec
"dismissed the disqualification case against respondent for switching from Liberal Party (under which he was elected) to the
KBL on the ground that 'the Liberal-Party may be deemed to have become inexistent as it did not nominate candidates both in
the elections of 1978 and 1980.' " But the Comelec in Ticzon's case, did not equally apply this reasoning and ruling in the case
of the winner Ticzon who became partyless and switched from the "inexistent" Liberal Party not to the dominant KBL (as the
loser Dizon did, switching from the former majority Nacionalista Party under which he was elected) but to the opposition
Nacionalista Party — violating, in my view, the very spirit of the cited constitutional provision against turncoatism, which is to
curtail opportunism and desertion of the opposition ranks. As noted in the Court's decision, the Constitution amendment in
1981 has now made enforcement of the said constitutional provision dependent upon the law, which may "provide otherwise,"
as in fact, B.P. Blg. 697 governing the 1984 elections did so provide otherwise and allowed changes of party affiliation.
CASE #4

G.R. No. 84843-44 January 22, 1990

NURHUSSEIN A. UTUTALUM, petitioner,


vs.
COMMISSION ON ELECTIONS and ARDEN S. ANNI, respondents.

Pedro Q. Quadra for petitioner.


Brillantes, Nachura, Navarro & Arcilla Law Offices for private respondent.

MELENCIO-HERRERA, J.:

Petitioner, Nurhussein A. Ututalum, prays for the reversal, on the ground of grave abuse of discretion, of the 19 April and 31
August 1988 Resolutions of public respondent Commission on Elections (COMELEC), in Case Nos. SP 87-469 and 87-497,
which declined to reject the election returns from all the precincts of the Municipality of Siasi, Sulu, in the last 30 May 1987
Congressional elections and to annul respondent Arden S. Anni's proclamation.

The undisputed facts follow:

1. Petitioner Ututalum and private respondent, Arden S. Anni, were among the candidates in the last 30 May 1987
Congressional elections for the Second District of Sulu. 30 May was the date reset by the COMELEC from the 11 May 1987
elections.

2. The election returns from Siasi showed that Petitioner Ututalum obtained four hundred and eighty-two (482) votes while
respondent Anni received thirty-five thousand five hundred and eighty-one (35,581) votes out of the thirty-nine thousand eight
hundred and one (39,801) registered voters (pp. 13, 187, Rollo). If the returns of Siasi were excluded, Petitioner Ututalum
would have a lead of 5,301 votes.

3. On 4 June 1987, during the canvass of votes, Petitioner Ututalum, without availing of verbal objections, filed written
objections to the returns from Siasi on the ground that they "appear to be tampered with or falsified" owing to the "great
excess of votes" appearing in said returns. He then claimed that multiplying the 42 precincts of Siasi by 300 voters per
precinct, there should have been only 12,600 registered voters and not 36,663 voters who cast their votes, thereby exceeding
the actual authorized voters by 23,947 "ghost voters." (In his Petition, however, he admits that an error was committed since
"in the May 30,1987 elections, Siasi had 148 precincts" (p. 6, Rollo). He then prayed for the exclusion from the canvass of any
election returns from Siasi.

4. On the same day, 4 June, the Provincial Board of Canvassers of Sulu dismissed petitioner's objections because they had
been "filed out of time or only after the Certificate of Canvass had already been canvassed by the Board and because the
grounds for the objection were not one of those enumerated in Section 243 of the Election Code" (See Order, p. 155, Rollo).
Also on the same day, 4 June 1987, petitioner filed with the Board of Canvassers his Notice of Appeal from said Resolution to
the COMELEC.

5. On 5 June 1987, petitioner filed his first Petition with the COMELEC seeking a declaration of failure of elections in the
Municipality of Siasi and other mentioned municipalities; that the COMELEC annul the elections in Siasi and conduct another
election thereat; and order the Provincial Board of Canvassers to desist from proclaiming any candidate pending a final
determination of the Petition.

6. On 8 June 1987, the Provincial Board of Canvassers forwarded Petitioner's appeal as well as its Order dismissing the
written objections to the COMELEC, with the request for authority to proclaim Respondent Anni as the winning candidate.

7. On 11 June l987, in Case No. SPC 87-180, the COMELEC resolved that there was no failure of elections in the 1st and 2nd
Districts of Sulu except in specified precincts in the 1st District.

8. On 14 June 1987, the Sulu Provincial Board of Canvassers proclaimed respondent Anni as the winner. He subsequently
took his oath of office and entered upon the discharge of its functions in July 1987.
9. On 16 June 1987, petitioner filed a second Petition with the COMELEC praying for the annulment of Respondent Anni's
proclamation and for his own proclamation as Congressman for the Second District of Sulu.

10. While those two petitions were pending, one Lupay Loong, a candidate for Governor of Sulu, filed a verified Petition with
the COMELEC to annul the List of Voters of Siasi, for purposes of the election of local government officials (docketed as SPC
Case No. 87-624, p. 9, Rollo). This Petition was opposed by Respondent Anni. Petitioner Ututalum was not a party to this
proceeding.

On 16 January 1988, the COMELEC issued, in said SPC 87-624, a Resolution annulling the Siasi List of Voters "on the
ground of massive irregularities committed in the preparation thereof and being statistically improbable", and ordering a new
registration of voters for the local elections of 15 February 1988 (p. 41 Rollo).

Said Resolution was affirmed by this Court in Anni vs. COMELEC, G.R. No. 81398, 26 January 1988 (p. 43, Rollo). A new
Registry List was subsequently prepared yielding only 12,555 names (p. 228, Rollo).

11. Immediately after having been notified of the annulment of the previous Siasi List of Voters, Petitioner Ututalum filed a
supplemental pleading with the COMELEC entreating that such annulment be considered and applied by the Commission in
resolving his two Petitions against Respondent Anni (p. 319, Rollo).

12. On 19 April 1988, in a consolidated Per Curiam Resolution, the COMELEC (First Division) denied Petitioner Ututalum's
two Petitions "for lack of merit, with the advise (sic) that he may file an election contest before the proper forum, if so desired."
Declared the COMELEC inter alia:

While we believe that there was padding of the registry list of voters in Siasi, yet to annul all the votes in this
municipality for purposes of the May 30, 1987 elections would disenfranchise the good or valid votes. As held in
Espaldon vs. Comelec (G.R. No. L-78987, August 25, 1987), this Commission is not the proper forum nor is it a
proper ground in a pre-proclamation controversy, to wit:

Padded voter's list, massive fraud and terrorism is clearly not among the issues that may be raised in a pre-
proclamation controversy. They are proper grounds for an election protest.

Petitioner Ututalum is now before us assailing the foregoing Resolution.

Petitioner contends that the issue he raised before the COMELEC actually referred to "obviously manufactured returns," a
proper subject matter for a pre-proclamation controversy and, therefore, cognizable by the COMELEC, in accordance with
Section 243 of the Omnibus Election Code, which provides:

Sec 243. The following shall be the issues that may be raised in a pre-proclamation controversy:

xxx xxx xxx

c) The election returns were prepared under duress, threats, coercion or intimidation or they are obviously
manufactured or not authentic; (emphasis supplied)

xxx xxx xxx

Further, that the election returns from Siasi should be excluded from the canvass of the results since its original List of Voters
had already been finally annulled; and, lastly, that there is no need to re-litigate in an election protest the matter of annulment
of the Registry List, this being already a "fait accompli."

It is our considered view, however, that given the factual setting, it can not justifiably be contended that the Siasi returns, per
se, were "obviously manufactured" and, thereby, a legitimate issue in a pre-proclamation controversy. It is true that
in Lagumbay vs. COMELEC (L-2544, 31 January 1966, 16 SCRA 175), relied upon heavily by Petitioner Ututalum, this Court
ruled that the returns are obviously manufactured where they show a great excess of votes over what could have been legally
cast. The Siasi returns however, do not show prima facie that on the basis of the old List of Voters, there is actually a great
excess of votes over what could have been legally cast considering that only 36,000 persons actually voted out of the 39,801
voters. Moreover, the Lagumbay case dealt with the "manufacture" of returns by those charged with their preparation as
shown prima facie on the questioned returns themselves. Not so in this case which deals with the preparation of the registry
list of voters, a matter that is not reflected on the face of said returns.
Basically, therefore, petitioner's cause of action is the padding of the Siasi List of Voters, which, indeed, is not a listed ground
for a pre- proclamation controversy.

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

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

(b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified,
or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234,
235 and 236 of this Code;

(c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously
manufactured or not authentic; and

(d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which
materially affected the standing of the aggrieved candidate or candidates.

As pointed out in Espaldon vs. COMELEC, L-78987, 25 August 1987:

Padded voters' list, massive fraud, and terrorism are clearly not among the issues that may be raised in a pre-
proclamation controversy. They are proper grounds for an election protest.

And as held in the case of Bautista vs. COMELEC, G.R. No. 78994, March 10, 1988:

The scope of pre-proclamation controversy is limited to the issues enumerated under Section 243 of the Omnibus
Election Code. The enumeration therein of the issues that may be raised in a pre-proclamation controversy is
restrictive and exclusive (see also Sanchez vs. COMELEC, G.R. No. L-78461, 12 August 1987, 153 SCRA 67).

But petitioner insists that the new Registry List should be considered and applied by the COMELEC as the legal basis in
determining the number of votes which could be legally cast in Siasi. To allow the COMELEC to do so retroactively, however,
would be to empower it to annul a previous election because of the subsequent annulment of a questioned registry in a
proceeding where petitioner himself was not a party. This cannot be done. In the case of Bashier vs. COMELEC (L-33692, 24
February 1972, 43 SCRA 238), this Court categorically ruled:

The subsequent annulment of the voting list in a separate proceeding initiated motu proprio by the Commission and in
which the protagonists here were not parties, cannot retroactively and without due process result in nullifying
accepted election returns in a previous election simply because such returns came from municipalities where the
precinct books of voters were ordered annulled due to irregularities in their preparation.

Besides, the List of Voters used in the 1987 Congressional elections was then a validly existing and still unquestioned
permanent Registry List. Then, it was the only legitimate roster which could be used as basis for voting. There was no prior
petition to set it aside for having been effected with fraud, intimidation, force, or any other similar irregularity in consonance
with Section 145 of the Omnibus Election Code. 1 That list must then be considered conclusive evidence of persons who could
exercise the right of suffrage in a particular election (Abendante vs. Relato 94 Phil. 8; Medenilla vs. Kayanan, L-28448-49, 30
July 1971, 40 SCRA 154).

Moreover, the preparation of a voter's list is not a proceeding before the Board of Canvassers. A pre-proclamation controversy
is limited to challenges directed against the Board of Canvassers, not the Board of Election Inspectors (Sanchez vs.
COMELEC, ante), and such challenges should relate to specified election returns against which petitioner should have made
specific verbal objections (Sec. 245, Omnibus Election Code; Pausing vs. Yorac, et al., G.R. No. 82700, 4 August 1988,
Endique vs. COMELEC, G.R. Nos. 82020-21, 22 November 1988), but did not.

That the padding of the List of Voters may constitute fraud, or that the Board of Election Inspectors may have fraudulently
conspired in its preparation, would not be a valid basis for a pre-proclamation controversy either. For, whenever irregularities,
such as fraud, are asserted, the proper course of action is an election protest.

Such irregularities as fraud, vote-buying and terrorism are proper grounds in an election contest but may not as a rule
be invoked to declare a failure of election and to disenfranchise the greater number of the electorate through the
misdeeds, precisely, of only a relative few. Otherwise, elections will never be carried out with the resultant
disenfranchisement of the innocent voters, for the losers will always cry fraud and terrorism (GAD vs. COMELEC,
G.R. No. 78302, May 26, 1987, 150 SCRA 665).

Petitioner Ututalum's other submission is that the Siasi returns should be excluded since the List of Voters on which it was
based has been conclusively annulled. He thus asks for the application of the rule on res judicata. This is neither possible.
Aside from the fact that the indispensable requisites of res judicata, namely, identity of parties, of subject matter, and of cause
of action are not all present, the ruling desired would, as the COMELEC had opined, disenfranchise the good and valid votes
in the Congressional elections of 30 May 1987.

Finally, this Petition has to fail if only on the basis of the equally important doctrine enunciated in Padilla vs.COMELEC (L-
68351-52, 9 July 1985, 137 SCRA 424), reiterated in Baldo vs. COMELEC (G.R. No. 83205,14 July 1988) that:

Where the respondent had already been proclaimed as the elected representative of the contested congressional
district, and has long assumed office and has been exercising the powers, functions, and duties appurtenant to said
office, the remedy of the petitioner lies with the House of Representatives Electoral Tribunal. The pre-proclamation
controversy becomes moot and academic.

and in the more recent case of Antonio vs. COMELEC (G.R. No. 84678, 29 March 1989):

Where the winning candidates have been proclaimed, the pre-proclamation controversies cease. A pre-proclamation
controversy is no longer viable at this point in time and should be dismissed. The proper remedy thereafter is an
election protest before the proper forum. Recourse to such remedy would settle the matter in controversy conclusively
and once and for all.

Having arrived at the foregoing conclusions, a discussion of the other peripheral issues raised has been rendered
unnecessary.

WHEREFORE, this Petition for Certiorari is hereby DISMISSED and the assailed Resolutions are AFFIRMED. No costs.

SO ORDERED.

Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortés, Griño-Aquino,
Medialdea and Regalado, JJ., concur.

Footnotes

1 Sec. 145. Annulment of permanent lists of voters.—Any book of voters not prepared in accordance with the
provisions of this Code or the preparation of which has been effected with fraud, bribery, forgery,
impersonation, intimidation, force, or any other similar irregularity or which list is statistically improbable
may, upon verified petition of any voter or election registrar, or duly registered political party, and after notice
and hearing, be annulled by the Commission; Provided, That no order, ruling or decision annuling a book of
voters shall be executed within sixty days before an election.
CASE #5

[G.R. No. 128877. December 10, 1999]

ROLANDO ABAD, JR., petitioner, vs. COMMISSION ON ELECTIONS; HON. OCTAVIO A. FERNANDEZ, JR., Presiding
Judge, Second Metropolitan Circuit Trial Court, General Natividad, Nueva Ecija; and SUSANITO SARENAS,
JR., respondents.

RESOLUTION
QUISUMBING, J.:

This special civil action for certiorari seeks to annul the COMELEC En Banc Resolution in SPR No. 45-96, dated April 29,
1997. Petitioner ABAD had sought COMELECs review of respondent Judges orders issued in the election protest filed against
private respondent SARENAS. In said Resolution, the COMELEC denied review, decreeing thus:

WHEREFORE, considering that the June 3, 1996 Order of the Court a quo had already attained finality at the time of the filing
of this Petition, thus, must remain undisturbed, and there being no showing that the drawing of lots mandated by the Courts
Order dated October 3, 1996, was attended by fraud or irregularities, the Commission En Banc RESOLVED to DISMISS the
Petition for lack of merit.[1]

The factual antecedents are as follows:


Petitioner Abad and private respondent Sarenas were both candidates for Sangguniang Kabataan (SK) chairman of
Barangay Sta. Barbara, Llanera, Nueva Ecija, during the May 6, 1996, SK elections.
Petitioner emerged as winner with 66 votes as against private respondents 62 votes. Petitioner was thus proclaimed SK
chairman of Sta. Barbara.[2]
Private respondent soon thereafter filed an election protest alleging fraud on the part of petitioner through the registration
of four unqualified voters. Three voters were allegedly underaged while one lacked the required residency in the
barangay. Private respondent asked for a recount of the votes cast.[3]
The election protest was filed before the Second Municipal Circuit Trial Court (MCTC) of Gen. Natividad, Nueva Ecija,
presided over by respondent Judge.
In his answer, petitioner claimed that private respondent was barred from questioning the qualifications of the four voters
because he failed to ask for their exclusion from the voters list as provided for under Section 22 of COMELEC Resolution No.
2824, the Rules and Regulations Governing the May 6, 1996 Elections of the SK; and Section 2 of COMELEC Resolution No.
2832, the Instructions for the Registration of Voters in connection with the SK elections. Petitioner contended that the
permanent registry list of voters is conclusive on the question of who has the right to vote in an election under the Omnibus
Election Code. Petitioner also claimed that a recount is not justified under the provisions of the same Code.
In addition, petitioner charged private respondent with vote-buying. He further alleged error on the part of the Board of
Election Tellers in the appreciation of votes.
In an Order dated June 3, 1996, respondent MCTC Judge Fernandez ruled in favor of private respondent. According to
Judge Fernandez, while the registry list of voters is indeed conclusive as to who can vote, this must be disregarded if justice
were to prevail. Moreover, said Judge Fernandez, a recount of the votes would not be determinative of who actually won the
SK chairmanship. Instead, he ordered that four votes, representing the votes of those persons whose qualification as voters
were questioned, be deducted from petitioner.[4]
As this resulted in a 62-62 tie between petitioner and private respondent, Judge Fernandez ordered that the winner be
determined via drawing of lots or toss of a coin.[5]
Petitioner appealed to the Regional Trial Court of Cabanatuan City, Branch 26 which, however, dismissed his appeal,
since under COMELEC Resolution No. 2824, the decision of the MCTC insofar as the SK election is concerned can only be
elevated to the COMELEC en banc through a petition for review and only in meritorious cases. The RTC through Acting
Presiding Judge Johnson L. Ballutay ordered remand of the case to the court of origin. [6]
The drawing of lots ordered by the MCTC proceeded on October 3, 1996. Petitioner was absent although he was duly
notified of the proceeding.[7] Private respondent Sarenas emerged as winner in the drawing of lots. In an order issued on the
same day, the MCTC directed him to take his oath of office and to assume his duties as SK chairman.
Thus petitioner Abad then filed a petition for review with the COMELEC en banc.
In its Resolution dismissing the petition, the COMELEC said:

On the basis of the facts presented the Commission En Banc holds that the June 3, 1996 Order of the Municipal Trial Court
had, as of the filing of the Petition for Review already become final. In short, the Petition as regards said Order had
prescribed. Records show that the decision of the Trial Court annulling the proclamation of Abad and declaring a tie between
him and Sarenas, to be broken by a drawing of lots, was received by Abad on June 5, 1996. Though he appealed said Order
to the Regional Trial Court, the remedy availed of was not the one obtaining under COMELEC Resolution 2824, Section 49 of
which provides:

Finality of Proclamation. The proclamation of the winning candidates shall be final. However, the Metropolitan Trial
Courts/Municipal Trial Courts/Municipal Circuit Trial Courts shall have original jurisdiction over all election protest cases,
whose decision shall be final. The Commission En Banc in meritorious cases may entertain a petition for review of the
decision of the MeTC/MTC/MCTC in accordance with the COMELEC Rules of Procedure. An appeal bond of P2,000.00 shall
be required which shall be refundable if the appeal is found meritorious.

More properly, and conformably with said provision, Petitioner should have directed his Petition to the Commission En Banc
within thirty days from June 5, 1996, the date the decision was served upon him.Even if we assume that his procedural lapse
was justifiable thus permit his appeal to the RTC to stay the running of the prescriptive period, he should have rectified his
error upon receipt of the Order of the RTC dismissing his Appeal on July 10, 1996. Petitioner had several opportunities to
avail of the correct remedy. Yet, he procrastinated and acted only when he lost the drawing of lots to respondent.Considering
therefore that Petitioner failed to question the propriety of the Order of the Court a quo dated June 3, 1996, the same had
become final and executory.

The October 3, 1996 Order of the MTC, is issued in implementation of the June 3, 1996 Order, declaring a tie between
Petitioner and Respondent Sarenas and directing a drawing of lots to break it. Having become executory as of October 3,
1996, its implementation become mandatory. Records show that Petitioner was duly notified of the proceedings. He did not
appear despite notice. He can not invoke his non-appearance as an excuse for questioning the proceedings. The same was
conducted in public. No irregularity or anomaly attending the proceeding was proven by Petitioner. There is therefore no
cogent reason to warrant the setting aside of the result thereof. [8]

Hence, this petition. While petitioner raises principally the issue of grave abuse of discretion on the part of the COMELEC
for not declaring as null and void the challenged orders of the trial court, the more fundamental issue here, in our view,
involves the COMELECs own jurisdiction. The Court cannot proceed further in this case without resolving that issue.
Note that from the trial court, petitioner proceeded directly to the COMELEC en banc. Apparently, he was proceeding
pursuant to Section 49 of COMELEC Resolution No. 2824, which provides:

xxx The Commission en banc in meritorious cases may entertain a petition for review of the decision of the MetC/MTC/MCTC
in accordance with the Comelec Rules of Procedure. xxx

But we find this rule not in accord but in conflict with Article IX-C, Section 3 of the Constitution, which states that:

Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order
to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and
decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.
(Emphasis supplied.)

In Sarmiento v. Commission on Elections,[9] we ruled that the COMELEC, sitting en banc, does not have the requisite
authority to hear and decide election cases 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.
In the recent case of Zarate v. COMELEC,[10] this rule has been reiterated. We nullified the decision of the COMELEC en
banc in Zarate, which incidentally also concerns a 1996 SK election case appealed directly from the MTC. We remanded the
case and ordered it assigned to an appropriate division of the COMELEC.
Thus, consistent with the rulings in Zarate and Sarmiento cases, we are now constrained to declare as null and void the
questioned resolution of the COMELEC en banc in this case of Abad (SPR No. 45-96).
WHEREFORE, the instant petition is GRANTED. The decision of the COMELEC en banc in SPR No. 45-96 is SET
ASIDE and the Commission is ordered to assign the case to one of its Divisions for prompt resolution.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Purisima, Buena, Gonzaga-Reyes,
Ynares-Santiago and De Leon, Jr., JJ., concur.
Pardo J., no part.

[1] Rollo, p. 54.


[2] Id. at 26.
[3] Id. at 27-31.
[4] Id. at 45.
[5] Ibid.
[6] Rollo, pp. 47-48.
[7] Id. at 52.
[8] Id. at 52-54.
[9] 212 SCRA 307, 313 (1992).
[10] G.R. No. 129096, promulgated on November 19, 1999, p. 8.
CASE #6

[G.R. No. 122013. March 26, 1997]

JOSE C. RAMIREZ, petitioner, vs. COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF


GIPORLOS, EASTERN SAMAR and ALFREDO I. GO, respondents.

DECISION
MENDOZA, J.:

Petitioner Jose C. Ramirez and private respondent Alfredo I. Go were candidates for vice mayor of Giporlos, Eastern
Samar in the election of May 8, 1995. Petitioner was proclaimed winner by the Municipal Board of Canvassers (MBC) on the
basis of results showing that he obtained 1,367 votes against private respondents 1,235 votes.[1]
On May 16, 1995, private respondent filed in the COMELEC a petition for the correction of what he claimed was manifest
error in the Statement of Votes (SPC No. 95-198). He alleged that, based on the entries in the Statement of Votes, he
obtained 1,515 votes as against petitioners 1,367 votes but that because of error in addition, he was credited with 1,235 votes
as shown in the following recomputation:[2]

Precinct No. Go, Alfredo I. Ramirez, Jose C.

8-A 23 43

9 23 10

8 37 49

2-A 31 48

12 50 42

12-A 65 29

7-A 36 73

20 7 19

3 88 56

1-A 54 67

13-A 43 47

18 39 12

14 19 65

4 27 37

5-A 43 67

13 37 42

2 73 79
15 49 49

11 58 18

11-A 66 32

6 115 98

1 130 52

17 54 15

7 86 67

10 60 13

5 50 55

19 41 61

21 59 46

16 52 76

Total 29 Precincts 1,235 1,367

(Should be 1,515)

In his Answer with Counter-Protest,[3] petitioner Jose C. Ramirez disputed private respondents claim. He said that instead of
the total of the votes for private respondent Alfredo Go, it was actually the entries relating to the number of votes credited to
him in Precinct Nos. 11, 11-A, 6, 1, 17, 7, and 10 which were erroneously reflected in the Statement of Votes. According to
petitioner, the entries in the Statement of Votes actually referred to the number of votes obtained by Rodito Fabillar, a
mayoralty candidate, and not to the votes obtained by private respondent. Petitioner alleged that, as shown in the Certificate
of Votes prepared by the Board of Election Inspectors, the votes cast for Go in the precincts in question were as follows:

Precinct Nos. Per Statement Per Certificate

of Votes of Votes

11 58 32

11-A 66 18

6 115 65

1 130 61

17 54 48

7 86 37

10 60 28

The addition of the number of votes (reflected in the Certificate of Votes) to the number of votes from other precincts
confirms the MBCs certificate that the total number of votes cast was actually 1,367 for petitioner and 1,235 for private
respondent.
On August 1, 1995, the COMELEC en banc issued its first questioned resolution, directing the MBC to reconvene and
recompute the votes in the Statement of Votes and proclaim the winning candidate for vice mayor of Giporlos, Eastern Samar
accordingly.[4]
Petitioner Jose C. Ramirez and public respondent Municipal Board of Canvassers filed separate motions for
clarification. On September 26, 1995, the COMELEC en banc issued its second questioned resolution, reiterating its earlier
ruling. It rejected the MBCs recommendation to resort to election returns: [5]

The Municipal Board of Canvassers is reminded that pursuant to Section 231 of the Omnibus Election Code, it is the
Statement of Votes, duly prepared, accomplished during the canvass proceedings, and certified true and correct by said
Board which supports and form (sic) the basis of the Certificate of Canvass and Proclamation of winning candidates. In fact
and in deed, the Municipal Board of Canvassers/Movant had submitted to the Commission, attached to and forming part of
the Certificate of Canvass and Proclamation a Statement of Votes without any notice of any discrepancy or infirmity therein.
To claim now that the proclamation was not based on said Statement of Votes but on the Certificate of Votes because the
entries in the Statement of Votes are erroneous is too late a move, considering that by the Boards act of submitting said
Statement of Votes as attachment to the Certificate of Proclamation and Canvass, it had rendered regularity and authenticity
thereto.

Hence this petition for certiorari and mandamus seeking the annulment of the two resolutions, dated August 1, 1995 and
September 26, 1995, of the Commission on Elections, and the reinstatement instead of the May 10, 1995 proclamation of
petitioner Jose C. Ramirez as the duly elected vice mayor of Giporlos, Eastern Samar. Petitioner contends that (1) the
COMELEC acted without jurisdiction over SPC No. 95-198 because the case was resolved by it without having been first
acted upon by any of its divisions, and (2) the MBC had already made motu proprio a correction of manifest errors in the
Statement of Votes in its certification dated May 22, 1995, showing the actual number of votes garnered by the candidates
and it was a grave abuse of its discretion for the COMELEC to order a recomputation of votes based on the allegedly
uncorrected Statement of Votes.
With respect to the first ground of the petition, Art. IX, 3 of the Constitution provides:

3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to
expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and
decided in division, provided that motions for reconsideration of decisions shall be decided by the Comelec en
banc. (Emphasis added)

Although in Ong, Jr. v. COMELEC[6] it was said that By now it is settled that election cases which include pre-
proclamation controversies must first be heard and decided by a division of the Commission [7] and a petition for correction of
manifest error in the Statement of Votes, like SPC No. 95-198 is a pre-proclamation controversy in none of the cases[8] cited
to support this proposition was the issue the correction of a manifest error in the Statement of Votes under 231 of the
Omnibus Election Code (B.P. Blg. 881) or 15 of R.A. No. 7166. On the other hand, Rule 27, 5 of the 1993 Rules of the
COMELEC expressly provides that pre-proclamation controversies involving, inter alia, manifest errors in the tabulation or
tallying of the results may be filed directly with the COMELEC en banc, thus

5. Pre-proclamation Controversies Which May Be Filed Directly With the Commission. (a) The following pre-proclamation
controversies may be filed directly with the Commission:

....

2) When the issue involves the correction of manifest errors in the tabulation or tallying of the results during the canvassing as
where (1) a copy of the election returns or certificate of canvass was tabulated more than once, (2) two or more copies of the
election returns of one precinct, or two or more copies of certificate of canvass were tabulated separately, (3) there had been
a mistake in the copying of the figures into the statement of votes or into the certificate of canvass, or (4) so-called returns
from non-existent precincts were included in the canvass, and such errors could not have been discovered during the
canvassing despite the exercise of due diligence and proclamation of the winning candidates had already been made.

....

(e) The petition shall be heard and decided by the Commission en banc.

....
Accordingly in Castromayor v. Commission on Elections,[9] and Mentang v. Commission on Elections,[10] this Court
approved the assumption of jurisdiction by the COMELEC en bancover petitions for correction of manifest error directly filed
with it. Our decision today in Torres v.COMELEC[11] again gives imprimatur to the exercise by the COMELEC en banc of the
power to decide petition for correction of manifest error.
In any event, petitioner is estopped from raising the issue of jurisdiction of the COMELEC en banc. Not only did he
participate in the proceedings below but he also sought affirmative relief from the COMELEC en banc by filing a Counter-
Protest in which he asked that entr[ies] in the statement of votes for Precinct Nos. 11, 11-A, 6, 1, 17, 7 and 10, be properly
corrected for the petitioner, to reflect the correct mandate of the electorate of Giporlos, Eastern Samar. [12] It is certainly not
right for a party taking part in proceedings and submitting his case for decision to attack the decision later for lack of
jurisdiction of the tribunal because the decision turns out to be adverse to him. [13]
Petitioner next contends that motu proprio the MBC already made a correction of the errors in the Statement of Votes in
its certification dated May 22, 1995, which reads:[14]

CERTIFICATION

To whom It May Concern:

This is to certify that the hereunder candidates for Municipal Vice Mayor of Giporlos, Eastern Samar during the May 8, 1995
National and Local Elections got the number of Votes on the precincts listed hereunder in tabulation form based in our
Canvassing of Votes per Precincts.

Name of PRECINCT NUMBERS

candidate : 11 : 11-A : 6 : 1 : 17 : 7 : 10
GO, Alfredo I. : 32 : 18 : 65 : 61 : 48 : 37 : 28

RAMIREZ, Jose C. : 18 : 32 : 98 : 52 : 15 : 67 : 13

This certification is issued upon request of the interested party for whatever legal purpose this may serve him.

Giporlos, Eastern Samar.

May 22, 1995

To begin with, the corrections should be made either by inserting corrections in the Statement of Votes which was
originally prepared and submitted by the MBC, or by preparing an entirely new Statement of Votes incorporating therein the
corrections.[15] The certification issued by the MBC is thus not the proper way to correct manifest errors in the Statement of
Votes.More importantly, the corrections should be based on the election returns but here the corrections appear to have been
made by the MBC on the bases of the Certificates of Votes issued.Thus, in its motion for clarification, the MBC said:

a. The proclamation of Jose C. Ramirez was based on the results of the certificate of canvass and tally of votes garnered by
both petitioner and private respondent which showed Jose C. Ramirez garnering 1,367 as against 1,235 by Alfredo I. Go, or a
winning margin of 132 in favor of Jose C. Ramirez;

b. Based on the certificate of votes in Precinct Nos. 11, 11-A, 6, 1, 17, 7, and 10,, Alfredo I. Go garnered only 32,18,
65,61,48,37 and 28, respectively, and the votes ascribed to the latter shown in the statement of votes are clear typographical
errors and were erroneously copied from the votes garnered by mayoral candidate Rodito P. Fabillar from the same seven (7)
precincts in Giporlos;

c. Because of typographical errors in the statement of votes, Alfredo I. Go balooned (sic) by 280 votes, such that instead of
losing by 132 votes to Jose C. Ramirez, Alfredo I. Go acquired an unwarranted margin of 148 votes;

d. The recomputation based on the statement of votes alone without including the correct votes on the Election Returns on the
Seven (7) precincts aforesaid will frustrate the will of the people who unquestionably voted for Jose C. Ramirez by a clear
majority of 132 votes;
e. In the preparation of the certificate of canvass and proclamation, only the certificate of votes of each candidate were
considered by reason of the fact it was prepared and signed only on May 11,1995 or one after (sic) the proclamation of the
winning municipal candidates on May 10, 1995.

Certificates of Votes are issued by Boards of Election Inspectors (BEI) to watchers, pursuant to 215 of the Omnibus
Election Code (OEC). While such certificates are useful for showing tampering, alteration, falsification or any other irregularity
in the preparation of election returns,[16] there is no reason for their use in this case since the integrity of the election returns is
not in question. On the other hand, in the canvass of votes, the MBC is directed to use the election returns.[17] Accordingly, in
revising the Statement of Votes supporting the Certificate of Canvass, the MBC should have used the election returns from
the precincts in question although in fairness to MBC, it proposed the use of election returns but the COMELEC en
bancrejected the proposal. The Statement of Votes is a tabulation per precinct of votes garnered by the candidates as
reflected in the election returns.
The Statement of Votes is a vital component of the electoral process. It supports the Certificate of Canvass and is the
basis for proclamation.[18] But in this case the Statement of Votes was not even prepared until after the proclamation of the
winning candidate. This is contrary to the Omnibus Election Code, 231 of which provides in part:
....

The respective board of canvassers shall prepare a certificate of canvass duly signed and affixed with the imprint of
the thumb of the right hand of each member, supported by a statement of votes received by each candidate in each
polling place and, on the basis thereof, shall proclaim as elected the candidates who obtained the highest number of
votes cast in the province, city, municipality or barangay.

Indeed, it appears from the Comment of the MBC that the MBC prepared its Certificate of Canvass simply on the basis
of improvised tally sheets and that it was only after the termination of the canvass, the proclamation of petitioner Jose C.
Ramirez, and the accomplishment of the Certificate of Canvass of Votes and Proclamation, that its clerk, Rosalia Abenojar,
prepared the Statement of Votes (C.E. Form No. 20-A). In a sworn report, Ms. Abenojar herself stated that she was tired and
drowsy at the time she prepared the Statement of Votes for the mayoralty and vice mayoralty positions. Although this
circumstance may support petitioners claim that the number of votes credited to private respondent Alfredo I. Go are actually
those cast in Precinct Nos. 11, 11-A, 6, 1, 17, 7, and 10 for mayoralty candidate Rodito Fabillar, it is equally possible that Go
and Fabillar obtained the same number of votes in those precincts.That the clerk who prepared the Statement of Votes was
tired and drowsy does not necessarily mean the entries she made were erroneous. But what is clear is that the Statement of
Votes was not prepared with the care required by its importance. Accordingly, as the Solicitor General states, what the
COMELEC should have ordered the MBC to do was not merely to recompute the number of votes for the parties, but to revise
the Statement of Votes, using the election returns for this purpose.[19] As this Court ruled in Villaroya v. Commission on
Elections:[20]

[T]he COMELEC has ample power to see to it that the elections are held in clean and orderly manner and it may decide all
questions affecting the elections and has original jurisdiction on all matters relating to election returns, including the
verification of the number of votes received by opposing candidates in the election returns as compared to the statement of
votes in order to insure that the true will of the people is known. Such a clerical error in the statement of votes can be ordered
corrected by the COMELEC. (Emphasis added)

Petitioners final contention that in any event SPC No. 95-198 must be considered rendered moot and academic by
reason of his proclamation and assumption of office is untenable. The short answer to this is that petitioners proclamation was
null and void and therefore the COMELEC was not barred from inquiring into its nullity.[21]
WHEREFORE, the petition is partially GRANTED by annulling the resolutions dated August 1, 1995 and September 26,
1995 of the Commission on Elections. The COMELEC is instead DIRECTED to reconvene the Municipal Board of Canvassers
or, if this is not feasible, to constitute a new Municipal Board of Canvassers in Giporlos, Eastern Samar and to order it to
revise with deliberate speed the Statement of Votes on the basis of the election returns from all precincts of the Municipality of
Giporlos and thereafter proclaim the winning candidate on the basis thereof.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Belosillo, Melo, Puno, Vitug, Kapunan, Francisco, Hermosisima,
Jr., Panganiban, and Torres, Jr., JJ., concur.

[1] Rollo, p. 20.


[2] Id., pp. 46-47.
[3] Id., pp. 50-54.
[4] Id., p. 59.
[5] Id., p. 73.
[6] 216 SCRA 806 (1992).
[7] Id., at 812.
[8] Pascua v. COMELEC, G.R. No. 105913, November 16, 1992, En Banc Resolution; Sarmiento v. COMELEC, G.R. No.
105628, August 6, 1992, Typoco v. COMELEC, G.R. No. 105730, August 6, 1992; Genova Jr. v. COMELEC, G.R.
No. 105771, August 6, 1992; Manliclic v. COMELEC, G.R. No. 105797, August 6, 1992; Sinsuat v. COMELEC, G.R.
No. 105919, August 6, 1992.
[9] 250 SCRA 298 (1995).
[10] 229 SCRA 666 (1993).
[11] G.R. No. 121031, March 26, 1997.
[12] Rollo, p. 52.
[13] See Pangarungan v. COMELEC, 216 SCRA 522 (1992); Tijam v. Sibonghanoy, 23 SCRA 29 (1968); Ilocos Sur Electric
Cooperative, Inc. v. NLRC, 241 SCRA 36 (1995).
[14] Rollo, p. 76.
[15] Bince, Jr. v. COMELEC, 218 SCRA 782,795 (1993).
[16] R.A. No. 6646, 17.
[17] OEC, 12(1); COMELEC Resolution No. 2756, 38.
[18] OEC, 231; Duremdes v. Commission on Elections, 178 SCRA 746, 754 (1989)
[19] Rollo, p. 162.
[20] 155 SCRA 633, 643-644 (1987).
[21] Duremdes v. Commission on Elections, 178 SCRA at 757 (1989), citing Aguam v. COMELEC, 23 SCRA 833 (1968).
CASE #7

[G.R. No. 134047. December 15, 1999]

AMADO S. BAGATSING, ERNESTO M. MACEDA, and JAIME LOPEZ, petitioners, vs. COMMISSION ON ELECTIONS
and JOSE L. ATIENZA, respondents.

AMENDEDDECISION
KAPUNAN, J.:

In this petition for certiorari petitioners seek to annul and set aside the Resolution dated June 4, 1998 of the Commission
on Elections (COMELEC) First Division directing the proclamation of private respondent as Mayor of the City of Manila for
having been issued with grave abuse of discretion amounting to lack, or excess, of jurisdiction.
The backdrop of the instant case reveals the following antecedent facts:
Petitioners Amado S. Bagatsing, Ernesto M. Maceda and Jaime Lopez and herein private respondent Jose L. Atienza
were candidates for the position of Mayor of Manila in the May 11, 1998 elections.
On May 18, 1998, seven (7) days after the elections, petitioners filed with the COMELEC a complaint for disqualification
against private respondent, docketed as SPA No. 98-319, on the ground that the latter allegedly caused the disbursement of
public funds in the amount of Three Million Three Hundred Seventy-Five Thousand (P3,375,000.00) Pesos, more or less,
within the prohibited forty-five-day period before the elections in violation of Article 22, Section 261 (g) (2)[1] of Batas
Pambansa Blg. 881, otherwise known as the Omnibus Election Code of the Philippines. The alleged disbursement was
intended to be distributed in the form of financial assistance to the public school teachers of the City of Manila who manned
the precinct polls in that city during the elections.
On May 20, 1998, the COMELEC (First Division)* issued an order suspending the proclamation of private respondent, the
dispositive portion of which reads:

PREMISES CONSIDERED, it appearing that the evidence presented consisting of disbursement voucher and the general
payroll evidencing payment to the teachers in the form of financial assistance dated May 5, 1998, in violation of Section 68 of
the Omnibus Election Code, which provides:

SEC. 68 Disqualifications. - Any candidate who in an action or protest in which he is a party is declared by final decision of a
competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his
candidacy, (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or
made any contribution prohibited under Section 89, 95, 96, 97 and 104; or (e) violated any Section 80, 83, 85, 86 and 261,
paragraphs d, e, k, v and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected,
from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified
to run for any elective office under this Code, unless said person has waived hi (sic) statues (sic) as permanent resident or
immigrant of a foreign country in accordance with the residence requirement provided for in the election laws (Sec. 25, 1971
EC) (underscoring ours).

show a probable cause of commission of election offenses which are grounds for disqualification, and the evidence in support
of disqualification is strong, the City Board of Canvassers of Manila is hereby directed to complete the canvassing of election
returns of the City of Manila, but to suspend proclamation of respondent Jose L. Atienza, Jr. should he obtain the winning
number of votes for the position of City Mayor of Manila, until such time when the petition for disqualification against him shall
have been resolved.

The Executive Director of this Commission is directed to cause the immediate implementation of this Order.

SO ORDERED.[2]

On May 21, 1998, private respondent filed a Motion for Reconsideration and sought to set aside the afore-quoted order
directing the suspension of his proclamation as mayor.
On June 4, 1998, the COMELEC (First Division)* handed down a resolution granting the motion for reconsideration,
ratiocinating thusly:

The Commission En Banc finds correct respondent's reliance on COMELEC Resolution No. 2050 for his cause. The
Resolution, promulgated by the Commission in order to formulate the rules governing the disposition of cases of
disqualification filed by virtue of Section 68 of the Omnibus Election Code in relation to Section 6 of Republic Act 6646
otherwise known as the Electoral Reform Law of 1987, pertinently provides:

2. Any complaint for disqualification based on Section 68 of the Omnibus Election Code, filed after the elections against a
candidate who has already been proclaimed as winner shall be dismissed as a disqualification case. However, the complaint
shall be referred for preliminary investigation to the Law Department of the Commission.

Where a similar complaint is filed after the elections but before proclamation of the respondent candidate, the complaint shall
nevertheless, be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to
the Law Department. If, before proclamation, the Law Department makes a prima facie finding of guilt and the corresponding
information has been filed with the appropriate trial court, the complainant may file a petition for suspension of the
proclamation of the respondent with the Court before which the criminal case is pending and the said Court may order the
suspension of the proclamation, if the evidence of guilt is strong.

The applicability of COMELEC Resolution No. 2050 on cases of such nature as the one at bench, had been upheld by the
Supreme Court in Lozano vs. Commission on Elections, G.R. 94628, October 28, 1991, when it declared:

Resolution No. 2050 specifically mandates a definite policy and procedure for disqualification cases. The COMELEC Rules of
Procedure speak of special actions, which include disqualification cases, in general. Hence, as between a specific and a
general rule, the former shall necessarily prevail.

It is thus, a good law which could govern this case.

Considering therefore, that the petition for disqualification was filed after the election but before respondent's proclamation,
the Commission En Banc, conformably with Resolution No. 2050, hereby dismisses the same as a disqualification case but
refers Petitioners' charges of election offense against respondent to the Law Department for appropriate action. [3]

The decretal portion of the resolution reads:

WHEREFORE, in view of the foregoing, the Commission FIRST DIVISION hereby GRANTS the Motion to lift the order of
suspension of respondent's proclamation. The Order of the First Division suspending respondent's proclamation as City Mayor
of Manila is SET ASIDE. The City Board of Canvassers of Manila is hereby DIRECTED to CONVENE, COMPLETE the
CANVASS and PROCLAIM the candidate obtaining the highest number of votes for said position. Petitioners' complaints
against respondent for violation of the Omnibus Election Code is hereby referred to the Law Department for preliminary
investigation.

SO ORDERED.[4]

That same day at around eleven oclock in the morning, petitioners filed a Motion to Suspend Immediate Intended
Proclamation of Respondent. In the afternoon of the same day, petitioners likewise filed a Motion for Reconsideration and a
Second Motion to Suspend Immediate Intended Proclamation of Respondent before COMELEC en banc.
Meanwhile, the City Board of Canvassers of Manila reconvened at three oclock in the afternoon of the same day, June 4,
1998, and proclaimed private respondent as the duly elected Mayor of the City of Manila. [5]
On June 25, 1999, without waiting for the resolution of their motion for reconsideration pending before the COMELEC en
banc, petitioners filed the instant petition to set aside the June 4, 1998 resolution of the COMELEC's First Division.
Records reveal, however, that said motion for reconsideration pending before the COMELEC en banc was denied in its
Order of July 2, 1998 at the instance of herein petitioners themselves for the reason that they had already filed a petition
before this Court docketed as G.R. No. 134047.[6]
The instant petition seeks to strike down as having been issued with grave abuse of discretion COMELEC First Division
Resolution dated June 4, 1998 dismissing the petition for disqualification and referring the case to the COMELECs Law
Department for preliminary investigation, based on COMELEC Resolution No. 2050. Petitioners contend that Resolution No.
2050 had already been nullified by the decision of this Court in Sunga vs. Comelec. [7] Such being the case, petitioners argue
that the COMELEC should be compelled by mandamus to assume jurisdiction and continue to hear and decide the
disqualification case.
COMELEC Resolution No. 2050, adopted on November 3, 1988, reads:

WHEREAS, there remain pending before the Commission, a number of cases of disqualification filed by virtue of the
provisions of Section 68 of the Omnibus Election Code in relation to Section 6 of R.A. 6646, otherwise known as the Electoral
Reforms Law of 1987;

WHEREAS, opinions of the members of the Commission on matters of procedure in dealing with cases of this nature and the
manner of disposing of the same have not been uniform;

WHEREAS, in order to avoid conflicts of opinion in the disposition or disqualification cases contemplated under Section 68 of
the Omnibus Election Code in relation to Section 6 of Rep. Act 6646, there is a strongly felt need to lay down a definite policy
in the disposition of this specific class of disqualification cases;

NOW, THEREFORE, on motion duly seconded, the Commission en banc:

RESOLVED, as it hereby resolves, to formulate the following rules governing the disposition of cases of disqualification filed
by virtue of Section 68 of the Omnibus Election Code in relation to Section 6 of R.A. No. 6646, otherwise known as the
Electoral Reforms Law of 1987:

1. Any complaint for the disqualification of a duly registered candidate based upon any of the grounds specifically enumerated
under Section 68 of the Omnibus Election Code, filed directly with the Commission before an election in which the respondent
is a candidate, shall be inquired into by the Commission for the purpose of determining whether the acts complained of have
in fact been committed.Where the inquiry by the Commission results in a finding before election, that the respondent
candidate did in fact commit the acts complained, the Commission shall order the disqualification of the respondent candidate
from continuing as such candidate.

In case such complaint was not resolved before the election, the Commission may motu proprio, or an (sic) motion of any of
the parties, refer the complaint to the law Department of the Commission as the instrument of the latter in the exercise of its
exclusive power to conduct a preliminary investigation of all cases involving criminal infractions of the election laws. Such
recourse may be availed of irrespective of whether the respondent has been elected or has lost in the election.

2. Any complaint for disqualification based on Section 68 of the Omnibus Election Code in relation to Section 6 of Rep. Act
No. 6646 filed after the election against a candidate who has already been proclaimed as winner shall be dismissed as a
disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department of the
Commission.

Where a similar complaint is filed after election but before proclamation of the respondent candidate, the complaint shall,
nevertheless, be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to
the Law Department. If, before proclamation, the Law Department makes a prima facie finding of guilt and the corresponding
information has been filed with the appropriate trial court, the complainant may file a petition for suspension of the
proclamation of the respondent with the court before which the criminal case is pending and the said court may order the
suspension of the proclamation if the evidence of guilt is strong.

3. The Law Department shall terminate the preliminary investigation within thirty (30) days from receipt of the referral and shall
submit its study, report and recommendation to the Commission en bancwithin five (5) days from the conclusion of the
preliminary investigation. If it makes a prima facie finding of guilt, it shall submit with such study the Information for filing with
the appropriate court.

The above-quoted resolution covers two (2) different aspects:


First, as contemplated in paragraph 1, a complaint for disqualification filed before the election which must be inquired
into by the COMELEC for the purpose of determining whether the acts complained of have in fact been committed. Where the
inquiry results in a finding before the election, the COMELEC shall order the candidate's disqualification. In case the complaint
was not resolved before the election, the COMELEC may motu propio or on motion of any of the parties, refer the said
complaint to the Law Department of the COMELEC for preliminary investigation.
Second, as laid down in paragraph 2, a complaint for disqualification filed after the election against a candidate (a) who
has not yet been proclaimed as winner, or (b) who has already been proclaimed as winner. In both cases, the complaint shall
be dismissed as a disqualification case but shall be referred to the Law Department of the COMELEC for preliminary
investigation. However, if before proclamation,the Law Department makes a prima facie finding of guilt and the corresponding
information has been filed with the appropriate trial court, the complainant may file a petition for suspension of the
proclamation of the respondent with the court before which the criminal case is pending and the said court may order the
suspension of the proclamation if the evidence of guilt is strong.
Petitioners contend that Resolution No. 2050, upon which the COMELEC anchored its dismissal of the disqualification
case, is no longer a good law since it has been nullified in toto by this Court in Sunga v. COMELEC.[8]
Contrary to petitioners' contention, nowhere did the Court strike down COMELEC Resolution No. 2050 in Sunga. There,
we held that:

xxx We discern nothing in COMELEC Resolution No. 2050 declaring, ordering or directing the dismissal of a disqualification
case filed before the election but which remained unresolved after the election.What the Resolution mandates in such a case
is for the Commission to refer the complaint to its Law Department for investigation to determine whether the acts complained
of have in fact been committed by the candidate sought to be disqualified. The findings of the Law Department then become
the basis for disqualifying the erring candidate. This is totally different from the other two situations contemplated by
Resolution No. 2050, i.e., a disqualification case filed after the election but before the proclamation of winners and that filed
after the election and the proclamation of winners, wherein it was specifically directed by the same Resolution to be dismissed
as a disqualification case.

Moreover, Resolution No. 2050 as interpreted in Silvestre v. Duavit infringes on Sec. 6 of RA No. 6646, which provides:

SEC. 6. Effects of Disqualification Case.--Any candidate who has been declared by final judgment to be disqualified shall not
be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court
or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or
any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the
evidence of his guilt is strong (italics supplied).

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 word 'shall' signifies that this requirement of the law is mandatory,
operating to impose a positive duty which must be enforced. The implication is that the COMELEC is left with no discretion but
to proceed with the disqualification case even after the election. Thus, in providing for the outright dismissal of the
disqualification case which remains unresolved after the election, Silvestre v. Duavit in effect disallows what RA No. 6646
imperatively requires. xxx[9]

The ruling in Sunga is not applicable to the case at bar. There, the complaint for disqualification was filed prior to the May
8, 1995 elections. Under Section 6 of R.A. 6646, where the complaint was filed before the election but for any reason, a
candidate is not declared by final judgment before the election to be disqualified and he is voted for and receives the winning
number of votes in such election, the COMELEC shall continue with the trial and hearing of the case. Thus, the facts
in Sunga fall under the contemplation of Section 6, namely: (1) the complaint for disqualification was filed before the election;
(2) for any reason, the issue of disqualification was not finally resolved before the election; and (3) the candidate sought to be
disqualified is voted for and received the winning number of votes. Consequently, the COMELEC should have continued with
the hearing and decided the case on the merits. Instead, COMELEC erroneously dismissed the disqualification case and
referred the matter to the Law Department for preliminary investigation of the criminal aspect of the case. The deleterious
effect of the premature and precipitate dismissal was pointed out by this Court, thus:

xxx 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 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.[10]

In sharp contrast, the complaint for disqualification against private respondent in the case at bar was lodged on May 18,
1998 or seven (7) days after the 1998 elections. Pursuant to paragraph 2 of Resolution No. 2050, the complaint shall be
dismissed as a disqualification case and shall be referred for preliminary investigation to the Law Department of the
COMELEC. Under this scenario, the complaint for disqualification is filed after the election which may be either before or after
the proclamation of the respondent candidate.
The COMELEC in Sunga obviously misapplied Resolution No. 2050 in dismissing the disqualification case therein simply
because it remained unresolved before the election and, in lieu thereof, referring it to its Law Department for possible criminal
prosecution of the respondent for violation of the election laws. Notably, there is nothing in paragraph 1 of Resolution No.
2050 which directs the dismissal of the disqualification case not resolved before the election. It says the COMELEC may motu
propio or on motion of any of the parties, refer the complaint to the Law Department of the Commission as an instrument of
the latter in the exercise of its exclusive power to conduct a preliminary investigation of all cases involving criminal infractions
of the election laws. The referral to the Law Department is discretionary on the part of the COMELEC and in no way may it be
interpreted that the COMELEC will dismiss the disqualification case or will no longer continue with the hearing of the
same. The reason for this is that a disqualification case may have two (2) aspects, the administrative, which requires only a
preponderance of evidence to prove disqualification, and the criminal, which necessitates proof beyond reasonable doubt to
convict. Where in the opinion of the COMELEC, the acts which are grounds for disqualification also constitute a criminal
offense or offenses, referral of the case to the Law Department is proper.
Petitioners argue that the COMELEC should have proceeded and continued with the trial of SPA No. 98-319 and
rendered judgment as the law and evidence would warrant, invoking Section 6 of R.A. 6646.
We do not agree. Section 6 explicitly applies only to any candidate who has been declared by final judgment to be
disqualified before an election. The section provides further that if for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court
or Commission shall continue with the trial and hearing of the action, inquiry or protest xxx. There is no provision in R.A. 6646
that treats of a situation where the complaint for disqualification is filed after the election. If the intention of the law is for the
COMELEC to hear and decide disqualification cases filed after the election, it would not have made a distinction between
cases filed before and after the election. Section 6 would not have used the word before preceding an election. Thus, the
need for implementing rules as embodied in Comelec Resolution No. 2050 which provide that any complaint for
disqualification based on Section 6 of R.A. 6646 is filed after the election against a candidate who has already been
proclaimed as winner shall be dismissed as a disqualification case, but the complaint shall be referred for preliminary
investigation to the Law Department of COMELEC.
The applicability of Resolution No. 2050 on disqualification cases was in fact upheld by this Court in Lozano vs.
Yorac,[11] the Court said:

xxx Resolution No. 2050 was passed by reason of the variance in opinions of the members of respondent commission on
matters of procedure in dealing with cases of disqualification filed pursuant to Section 68 of the Omnibus Election code in
relation to Section 6 of Republic Act No. 6646, or the Electoral Reforms Law of 1987, and the manner of disposing of the
same had not been uniform. Hence, the COMELEC decided to lay down a definite policy in the disposition of these
disqualification cases. With this purpose in mind, the commission en banc adopted Resolution No. 2050. xxx

xxx

xxx Resolution No. 2050 specifically mandates a definite policy and procedure for disqualification cases. The COMELEC
Rules of Procedure speak of special actions, which include disqualification cases, in general. Hence, as between a specific
and a general rule, the former shall necessarily prevail.

xxx[12]
It bears stressing that the Court in Sunga recognized the difference between a disqualification case filed before and after
an election when, as earlier mentioned, it stated that the referral of the complaint for disqualification where the case is filed
before election is totally different from the other two situations contemplated by Resolution No. 2050, i.e., a disqualification
case filed after the election but before the proclamation of winners and that filed after the election and the proclamation
winners, wherein it was specifically directed by the same Resolution to be dismissed as a disqualification case.
Why there is a difference between a petition for disqualification filed before and after the election proceeds from the fact
that before the election, the question of disqualification is raised as an issue before the electorate and those who vote for the
candidate assume the risk that should said candidate be disqualified after the election, their votes would be declared stray or
invalid votes. Such would not be true in the case of one filed after the electorate has already voted. [13]
Petitioners further postulate that the proclamation of private respondent on June 4, 1998 is void because it was made
without awaiting for the lapse of the five-day period for the finality of decisions rendered by a division in special actions," citing
Sec. 13 (c) Rule 18 of the COMELEC Rules of procedure providing that unless a motion for reconsideration is seasonably
filed, a decision or resolution of a Division shall become final and executory after the lapse of five (5) days in Special actions
and Special cases. xxx
We find this contention without merit.
The mere filing of a petition for disqualification is not a ground to suspend the proclamation of the winning candidate. In
the absence of an order suspending proclamation, the winning candidate who is sought to be disqualified is entitled to be
proclaimed as a matter of law. This is clear from Section 6 of R.A. 6646 providing that the proclamation of the candidate
sought to be disqualified is suspended only if there is an order of the COMELEC suspending proclamation. Here, there was
no order suspending private respondents proclamation. Consequently, private respondent was legally proclaimed on June 4,
1998.
Neither did the COMELEC err in not ordering the suspension of private respondent's proclamation. The second
paragraph of paragraph 2 of Resolution No. 2050 provides that where a complaint is filed after the elections but before
proclamation, as in this case, the complaint must be dismissed as a disqualification case but shall be referred to the Law
Department for preliminary investigation. If before the proclamation, the Law Department makes a prima facie finding of guilt
and the corresponding information has been filed with the appropriate trial court, the complainant may file a petition for
suspension of the proclamation of respondent with the court before which the criminal case is pending and that court may
order the suspension of the proclamation if the evidence of guilt is strong. [14] It appearing that none of the foregoing
circumstances obtain herein as there is no prima facie finding of guilt yet, a suspension of private respondent's proclamation is
not warranted. The mere pendency of a disqualification case against a candidate, and a winning candidate at that, does not
justify the suspension of his proclamation after winning in the election. To hold otherwise would unduly encourage the filing of
baseless and malicious petitions for disqualification if only to effect the suspension of the proclamation of the winning
candidate, not only to his damage and prejudice but also to the defeat of the sovereign will of the electorate, and for the undue
benefit of undeserving third parties.[15]
Before we end, we take note that when petitioners filed the instant petition on June 25, 1999, they had before the
COMELEC en banc a pending motion for reconsideration of the June 4, 1998 resolution of the First Division. The Court does
not look with favor the practice of seeking remedy from this Court without waiting for the resolution of the pending action
before the tribunal below, absent extraordinary circumstances warranting appropriate action by this Court. This makes a short
shrift of established rules of procedure intended for orderly administration of justice.
The COMELEC (First Division) in its June 4, 1998 resolution correctly referred petitioners complaint for disqualification to
its Law Division for appropriate action. There being no temporary restraining order from this Court, that body as an instrument
of the COMELEC should have continued with its task of determining whether or not there exists probable cause to warrant the
criminal prosecution of those who may be liable for the alleged election offenses.
WHEREFORE, the instant petition is hereby DISMISSED. The respondent Commission on Elections is hereby directed to
RESOLVE with great dispatch the pending incident relative to the preliminary investigation being conducted by its Law
Department.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Purisima, Buena, Gonzaga-Reyes,
Ynares-Santiago, and De Leon, Jr., JJ., concur.
Pardo, J., no part.

[1] Sec. 261. Prohibited Acts. - The following shall be guilty of an election offense:
xxx
"(g) Appointment of new employees, creation of new positions, promotion, or giving salary increases. - During the period of
forty-five days before a regular election and thirty days before a special election (1) x x x.
"(2) Any government official who promotes or gives any increase of salary or remuneration or privilege to any government
official or employees, including those in government-owned or controlled corporations."
* Composed of Manolo B. Gorospe as Presiding Commissioner and Evalyn I. Fetalino and Teresita Dy-Liacco Flores as

Commissioners with the latter dissenting.


[2]
Rollo, pp. 44-45.
*Composed of then Chairman Bernardo P. Pardo, Presiding Commissioner Manolo B. Gorospe and Commissioner Teresita
Dy-Liacco Flores.
[3] Id., at 32-33.
[4] Id., at 34.
[5] Id., at 35.
[6] Id., at 87.
[7] 288 SCRA 76 (1998).
[8] 288 SCRA 76 (1998).
[9] Sunga v. COMELEC, supra, pp. 85-86.
[10] Id., at 87.
[11] 203 SCRA 256 (1991).
[12] Id., at 265-267.
[13] Comments on the Omnibus Election Code, Ruben E. Agpalo, 1998 Revised Edition, p. 126.
[14] See p. 8.
[15] Singco v. COMELEC, 101 SCRA 420, 429 (1980).
CASE #8

G.R. No. 120318 December 5, 1997

RICARDO "BOY" CANICOSA, petitioner,


vs.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF CALAMBA, LAGUNA and SEVERINO
LAJARA, respondents.

BELLOSILLO, J.:

RICARDO "BOY" CANICOSA and SEVERINO LAJARA were candidates for mayor in Calamba, Laguna, during the 8 May
1995 elections. After obtaining a majority of some 24,000 votes 1 Lajara was proclaimed winner by the Municipal Board of
Canvassers. On 15 May 1995 Canicosa filed with the Commission on Elections (COMELEC) a Petition to Declare Failure of
Election and to Declare Null and Void the Canvass and Proclamation because of alleged widespread frauds and anomalies in
casting and counting of votes, preparation of election returns, violence, threats, intimidation, vote buying, unregistered voters
voting, and delay in the delivery of election documents and paraphernalia from the precincts to the Office of the Municipal
Treasurer. Canicosa particularly averred that: (a) the names of the registered voters did not appear in the list of voters in their
precincts; (b) more than one-half of the legitimate registered voters were not able to vote with strangers voting in their stead;
(c) he was credited with less votes than he actually received; (d) control data of the election returns was not filed up in some
precincts; (e) ballot boxes brought to the Office of the Municipal Treasurer were unsecured, i.e., without padlocks nor self-
locking metal seals; and, (f) there was delay in the delivery of election returns. But the COMELEC en banc dismissed the
petition on the ground that the allegations therein did not justify a declaration of failure of election.

Indeed, the grounds cited by Canicosa do not warrant a declaration of failure of election. Section 6 of BP Blg. 881, otherwise
known as the Omnibus Election Code, reads:

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

Clearly, there are only three (3) instances where a failure of election may be declared, namely: (a) the election in any polling
place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes;
(b) the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account
of force majeure, violence, terrorism, fraud, or other analogous causes; or (c) after the voting and during the preparation and
transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account
of force majeure. violence, terrorism, fraud, or other analogous causes.

None of the grounds invoked by Canicosa falls under any of those enumerated.

Canicosa bewails that the names of the registered voters in the various precincts did not appear in their respective lists of
voters. But this is not a ground to declare a failure of election. The filing of a petition for declaration of failure of election
therefore is not the proper remedy. The day following the last day for registration of voters, the poll clerk delivers a certified list
of voters to the election registrar, election supervisor and the COMELEC, copies of which are open to public inspection. On
the same day, the poll clerk ports a copy of the list of registered voters in each polling place. Each member of the board of
election inspectors retains a copy of the list which may be inspected by the public in their residence or in their office during
office hours.2

Fifteen (15) days before the regular elections on 8 May 1995 the final list of voters was posted in each precinct pursuant to
Sec. 148 of R.A. No. 7166. Based on the lists thus posted Canicosa could have filed a petition for inclusion of registered
voters with the regular courts. The question of inclusion or exclusion from the list of voters involves the right to vote 3 which is
not within the power and authority of COMELEC to rule upon. The determination of whether one has the right to vote is a
justiciable issue properly cognizable by our regular courts. Section 138, Art. XII, of the Omnibus Election Code states;

Sec. 138. Jurisdiction in inclusion and exclusion cases. — The municipal and metropolitan trial courts shall have
original and exclusive jurisdiction over all matters of inclusion and exclusion of voters from the list in their respective
municipalities or cities. Decisions of the municipal or metropolitan trial courts may be appealed directly by the
aggrieved party to the proper regional trial court within five days from receipts of notice thereof, otherwise said
decision of the municipal or metropolitan trial court shall decide the appeal within ten days from the time the appeal
was received and its decision shall be immediately final and executory. No motion for reconsideration shall be
entertained by the courts (Sec. 37, PD 1896, as amended).

On the other hand, Canicosa could have also filed with the COMELEC a verified complaint seeking the annulment of the book
of voters pursuant to Sec. 10, of R.A. No. 7166:

Sec. 10. Annulment of the List of Voters. — Any book of voters the preparation of which has been affected with fraud,
bribery, forgery, impersonation, intimidation, force or any other similar irregularity or which is statistically improbable
may be annulled after due notice and hearing by the Commission motu propio or after the filing of a verified
complaint: Provided, that no order, ruling or decision annulling a book of voters shall be executed within sixty (60)
days before an election.

If indeed the situation herein described was common in almost all of the 557 precincts as alleged by Canicosa,4 then it was
more expedient on his part to avail of the remedies provided by law in order to maintain the integrity of the election. Since
Canicosa failed to resort to any of the above options, the permanent list of voters as finally corrected before the election
remains conclusive on the question as to who had the right to vote in that election, although not in subsequent elections. 5

Canicosa also avers that more than one-half (1/2) of the legitimate registered voters were not able to vote, instead, strangers
voted in their behalf. Again, this is not a ground which warrants a declaration of failure of election. Canicosa was allowed to
appoint a watcher in every precinct. The watcher is empowered by law to challenge any illegal voter. Thus, Secs. 199 and
202, Art. XVII, of the Omnibus Election Code, provide:

Sec. 199. Challenges of illegal voters. — (a) Any voter, or watcher may challenge any person offering to vote for not
being registered, for using the name of another or suffering from existing disqualification. In such case, the board of
election inspectors shall satisfy itself as to whether or not the ground for the challenge is true by requiring proof of
registration or identity of the voter . . .

Sec. 202. Record of challenges and oaths. — The poll clerk shall keep a prescribed record of challenges and oaths
taken in connection therewith and the resolution of the board of election inspectors in each case and, upon the
termination of the voting, shall certify that it contains all the challenges made . . .

The claim of Canicosa that he was credited with less votes than he actually received and that the control date of the election
returns was not filled up should have been raised in the first instance before the board of election inspectors or board of
canvassers. Section 179, Art. XV, of the Omnibus Election Code clearly provides for the rights and duties of watchers —

Sec. 179. Rights and duties of watchers. — . . . The watchers . . . shall have the right to witness and inform
themselves of the proceedings of the board of election inspectors . . . to file a protest against any irregularity or
violation of law which they believe may have been committed by the board of election inspectors or by any of its
members or by any persons, to obtain from the board of election inspectors
a certificates as to the filing of such protest and/or of the resolution thereon . . . and to be furnished with a certificate of
the number of votes in words and figures cast for each candidate, duly signed and thumbmarked by the chairman and
all the members of the board of election inspectors . . .

To safeguard and maintain the sanctity of election returns, Sec. 212, Art. XVIII, of the Omnibus Election Code states —

Sec. 212. Election returns. — . . . Immediately upon the accomplishment of the election returns, each copy thereof
shall be sealed in the presence of the watchers and the public, and placed in the proper envelope, which shall
likewise be sealed and distributed as herein provided.

Furthermore, it is provided in Sec. 215 of the Omnibus Election Code


that —
Sec. 215. Board of election inspectors to issue a certificate of the number of votes polled by the candidates for an
office to the watchers. — After the announcement of the results of the election and before leaving the polling place, it
shall be the duty of the board of election inspectors to issue a certificate of the number of votes received by a
candidate upon request of the watchers. All members of the board of election inspectors shall sign the certificate.

Supplementing the preceding provisions, Secs. 16 and 17 of RA No. 6646 also require —

Sec. 16. Certificate of votes. — After the counting of the votes cast in the precinct and announcement of the results of
the election, and before leaving the polling place, the board of election inspectors shall issue a certificate of votes
upon request of the duly accredited watchers . . .

Sec. 17. Certificate of Votes as Evidence. — The provisions of Secs. 235 and 236 of Batas Pambansa Blg. 881
notwithstanding, the certificate of votes shall be admissible in evidence to prove tampering, alteration, falsification or
anomaly committed in the election returns concerned . . .

From the foregoing provisions, it is clear that in case of inconsistency as to the number of votes written in the election returns
and the certificate of votes, a petition for correction of election returns must immediately be filed with COMELEC by all or a
majority of the members of the board of election inspectors or any candidate affected by the error or mistake. In order to make
out a case for correction of election returns, there must be an error and at least a majority of the members of the board of
election inspectors agrees that such error existed. Canicosa never mentioned that he petitioned for the correction of the
election returns before the COMELEC.

Canicosa complains that the election returns were delivered late and the ballot boxes brought to the Office of the Municipal
Treasurer unsecured, i.e., without padlocks nor self-locking metal seals. These bare allegations cannot impel us to declare
failure of election. Assuming that the election returns were delivered late, we still cannot see why we should declare a failure
to elect. The late deliveries did not convert the election held in Calamba into a mockery or farce to make us conclude that
there was indeed a failure of election.

In fine, the grounds cited by Canicosa in his petition do not fall under any of the instances enumerated in Sec. 6 of
the Omnibus Election Code. In Mitmug v. Commission on Elections6 we ruled that before COMELEC can act on a verified
petition seeking to declare a failure of election, at least two (2) conditions must concur: (a) no voting has taken place in the
precincts on the date fixed by law, or even if there was voting, the election nevertheless resulted in failure to elect; and, (b) the
votes that were not cast would affect the result of the election. From the face of the instant petition, it is readily apparent than
an election took place and that it did not result in a failure to elect.7

Canicosa finally insists that it was error on the part of COMELEC sitting en banc to rule on his petition. He maintains that his
petition should have first been heard by a division of COMELEC and later by the COMELEC en banc upon motion for
reconsideration, pursuant to Sec. 3, Art. IX-C, of the Constitution.8

But this provision applies only when the COMELEC acts in the exercise of its adjudicatory or quasi-judicial functions and not
when it merely exercises purely administrative functions. To reiterate, the grounds cited by Canicosa in his petition are that:
(a) the names of the registered voters did not appear in the list of voters in their respective precincts; (b) more than one-half of
the legitimate registered voters were not able to vote with strangers voting in their stead; (c) he was credited with less votes
than he actually received; (d) the control data of the election returns was not filled up in some precincts; (e) ballot boxes
brought to the Office of the Municipal Treasurer were unsecured, i.e., without padlocks nor self-locking metal seals; and, (f)
there was delay in the delivery of election returns.

Clearly, all these matters require the exercise by the COMELEC of its administrative functions. Section 2, Art. IX-C, of the
1987 Constitution grants extensive administrative powers to the COMELEC with regard to the enforcement and administration
of all laws and regulations relative to the conduct of elections. Likewise, Sec. 52 of BP Blg. 881, otherwise known as
the Omnibus Election Code, states:

Sec. 52. Powers and functions of the Commission on Elections. — In addition to the powers and functions conferred
upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administrative of all
laws relative to the conduct of elections of the purposes of ensuring free, orderly and honest elections . . .

Quite obviously, it is only in the exercise of its adjudicatory or quasi-judicial powers that the COMELEC is mandated to hear
and decide cases first by Division and then, upon motion for reconsideration, by the COMELEC en banc. This is when it is
jurisdictional. In the instant case, as aforestated, the issues presented demand only the exercise by the COMELEC of its
administrative functions.
The COMELEC exercises direct and immediate supervision and control over national and local officials or employees,
including members of any national or local law enforcement agency and instrumentality of the government required by law to
perform duties relative to the conduct of elections. Its power of direct supervision and control includes the power to review,
modify or set aside any act of such national and local officials. 9 It exercises immediate supervision and control over the
members of the boards of election inspectors and canvassers. Its statutory power of supervision and control includes the
power to revise, reverse or set aside the action of the boards, as well as to do what the boards should have done, even if
questions relative thereto have not been elevated to it by an aggrieved party, for such power includes the authority to
initiate motu proprio or by itself such steps or actions as may be required pursuant to law. 10

Specifically, Canicosa alleged that he was credited with less votes than the actually received. But he did not raise any
objection before the Municipal Board of Canvassers; instead, he went directly to the COMELEC. He now claims, after the
COMELEC en banc dismissed his petition, that it was error on the part of COMELEC to rule on his petition while sitting en
banc.

We have already disposed of this issue in Castromayor v. Commission on Elections11 thus —

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

Moreover, it is expressly provided in Rule 27, Sec. 7, of the Comelec Rules of Procedure that any party dissatisfied with the
ruling of the board of canvassers shall have a right to appeal to the COMELEC en banc:

Sec. 7. Correction of Errors in Tabulation or Tallying of Results by the Board of Canvassers. — (a) Where it is clearly
shown before proclamation that manifest errors were committed in the tabulation or tallying or election returns, or
certificates of canvass, during the canvassing as where (1) a copy of the election returns of one precinct or two or
more copies of a certificate of canvass were tabulated more than once, (2) two copies of the election returns or
certificate of canvass were tabulated separately, (3) there was a mistake in the adding or copying of the figures into
the certificate of canvass or into the statement of votes by precinct, or (4) so-called election returns from non-existent
precincts were included in the canvass, the board may motu proprio, or upon verified petition by any candidate,
political party, organization or coalition of political parties, after due notice and hearing, correct the errors committed . .
. (h) The appeal shall be heard and decided by the Commission en banc.

The Tatlonghari v. Commission on Elections12 it was made to appear in the Certificate of Canvass of Votes and Proclamation
of the Winning Candidates that respondent therein received 4,951 votes or more than what he actually obtained. In resolving
the case we ruled that the correction of the manifest mistake in mathematical addition calls for a mere clerical task of the
board of canvassers. The remedy invoked was purely administrative. In Feliciano vs.Lugay13 we categorized the issue
concerning registration of voters, which Canicosa cited as a ground in his petition for declaration of failure of election, as an
administrative question. Likewise, questions as to whether elections have been held or whether certain returns were falsified
or manufactured and therefore should be excluded from the canvass do not involve the right to vote. Such questions are
properly within the administrative jurisdiction of COMELEC,14 hence, may be acted upon directly by the COMELEC en
banc without having to pass through any of its divisions.

WHEREFORE, finding no grave abuse of discretion committed by public respondent Commission on Elections, the petition is
DISMISSED and its Resolution en banc of 23 May 1995 dismissing the petition before it on the ground that the allegations
therein did not justify a declaration of failure of election is AFFIRMED.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Romero, Melo, Puno, Vitug, Kapunan, Francisco, and Martinez, JJ., concur.

Panganiban, J., concurs in the result.

Mendoza, J., is on leave.

Footnotes
1 See Comment of private respondent Severino Lajara filed 29 November 1995.

2 Sec. 135, Art. XII, Omnibus Election Code.

3 Agpalo, Ruben E., Comments on the Election Code, 1992 Ed., p. 80.

4 See Petition, p. 5; Rollo, p. 6.

5 Sec. 13, Rule 20, COMELEC Rules of Procedure; Abendante v. Rebato, 94 Phil. 8 (1953).

6 G.R. Nos. 106270-73, 10 February 1994, 230 SCRA 54.

7 See Petition of Canicosa, p. 7; Rollo, p. 8.

8 The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of
procedure in order to expedite disposition of election cases including pre-proclamation controversies. All such
election cases shall be heard and decided in division, provided that motions for reconsideration of decisions
shall be decided by the Commission en banc.

9 See Note 3, p. 76.

10 Id., p. 77.

11 G.R. No. 120426, 23 November 1995, 250 SCRA 304.

12 G.R. No. 86645, 31 July 1991, 199 SCRA 849.

13 93 Phil. 744 (1953).

14 Pungutan v. Abubakar, No. L-33541, 20 January 1972, 43 SCRA 1.


CASE #9

G.R. No. 73155 July 11, 1986

PATRICIO TAN, FELIX FERRER, JUAN M. HAGAD, SERGIO HILADO, VIRGILIO GASTON, CONCHITA MINAYA,
TERESITA ESTACIO, DESIDERIO DEFERIA, ROMEO GAMBOA, ALBERTO LACSON, FE HOFILENA, EMILY JISON,
NIEVES LOPEZ AND CECILIA MAGSAYSAY, petitioners,
vs.
THE COMMISSION ON ELECTIONS and THE PROVINCIAL TREASURER OF NEGROS OCCIDENTAL, respondents.

Gamboa & Hofileña Law Office for petitioners.

ALAMPAY, J.:

Prompted by the enactment of Batas Pambansa Blg. 885-An Act Creating a New Province in the Island of Negros to be
known as the Province of Negros del Norte, which took effect on December 3, 1985, Petitioners herein, who are residents of
the Province of Negros Occidental, in the various cities and municipalities therein, on December 23, 1985, filed with this Court
a case for Prohibition for the purpose of stopping respondents Commission on Elections from conducting the plebiscite which,
pursuant to and in implementation of the aforesaid law, was scheduled for January 3, 1986. Said law provides:

SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of Calatrava, Taboso,
Escalante, Sagay, Manapla, Victorias, E.R. Magalona; and Salvador Benedicto, all in the northern portion of
the Island of Negros, are hereby separated from the province to be known as the Province of Negros del
Norte.

SEC. 2. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality
of Salvador Benedicto and the City of San Carlos on the south and the territorial limits of the northern portion
to the Island of Negros on the west, north and east, comprising a territory of 4,019.95 square kilometers more
or less.

SEC. 3. The seat of government of the new province shall be the City of Cadiz.

SEC. 4. A plebiscite shall be conducted in the proposed new province which are the areas affected within a
period of one hundred and twenty days from the approval of this Act. After the ratification of the creation of the
Province of Negros del Norte by a majority of the votes cast in such plebiscite, the President of the Philippines
shall appoint the first officials of the province.

SEC. 5. The Commission on Elections shall conduct and supervise the plebiscite herein provided, the
expenses for which shall be charged to local funds.

SEC. 6. This Act shall takeeffect upon its approval.(Rollo, pp. 23-24)

Petitioners contend that Batas Pambansa Blg. 885 is unconstitutional and it is not in complete accord with the
Local Government Code as in Article XI, Section 3 of our Constitution, it is expressly mandated that—

See. 3. No province, city, municipality or barrio may be created, divided, merged, abolished, or its boundary
substantially altered, except in accordance with the criteria established in the local government code, and
subject to the approval by a majority of the votes in a plebiscite in the unit or units affected.

Section 197 of the Local Government Code enumerates the conditions which must exist to provide the legal basis for the
creation of a provincial unit and these requisites are:

SEC. 197. Requisites for Creation. A province may be created if it has a territory of at least three thousand
five hundred square kilometers, a population of at least five hundred thousand persons, an average estimated
annual income, as certified by the Ministry of Finance, of not less than ten million pesos for the last three
consecutive years, and its creation shall not reduce the population and income of the mother province or
provinces at the time of said creation to less than the minimum requirements under this section. The territory
need not be contiguous if it comprises two or more islands.

The average estimated annual income shall include the income alloted for both the general and infrastructural
funds, exclusive of trust funds, transfers and nonrecurring income. (Rollo, p. 6)

Due to the constraints brought about by the supervening Christmas holidays during which the Court was in recess and unable
to timely consider the petition, a supplemental pleading was filed by petitioners on January 4, 1986, averring therein that the
plebiscite sought to be restrained by them was held on January 3, 1986 as scheduled but that there are still serious issues
raised in the instant case affecting the legality, constitutionality and validity of such exercise which should properly be passed
upon and resolved by this Court.

The plebiscite was confined only to the inhabitants of the territory of Negros del N•rte, namely: the Cities of Silay, Cadiz, and
San Carlos, and the municipalities of Calatrava, Taboso, Escalante, Sagay, Manapla, Victorias, E.B. Magalona and Don
Salvador Benedicto. Because of the exclusions of the voters from the rest of the province of Negros Occidental, petitioners
found need to change the prayer of their petition "to the end that the constitutional issues which they have raised in the action
will be ventilated and given final resolution.'"At the same time, they asked that the effects of the plebiscite which they sought
to stop be suspended until the Supreme Court shall have rendered its decision on the very fundamental and far-reaching
questions that petitioners have brought out.

Acknowledging in their supplemental petition that supervening events rendered moot the prayer in their initial petition that the
plebiscite scheduled for January 3, 1986, be enjoined, petitioners plead, nevertheless, that-

... a writ of Prohibition be issued, directed to Respondent Commission on Elections to desist from issuing
official proclamation of the results of the plebiscite held on January 3, 1986.

Finding that the exclusion and non-participation of the voters of the Province of Negros Occidental other than
those living within the territory of the new province of Negros del Norte to be not in accordance with the
Constitution, that a writ of mandamus be issued, directed to the respondent Commission on Elections, to
schedule the holding of another plebiscite at which all the qualified voters of the entire Province of Negros
Occidental as now existing shall participate, at the same time making pronouncement that the plebiscite held
on January 3, 1986 has no legal effect, being a patent legal nullity;

And that a similar writ of Prohibition be issued, directed to the respondent Provincial Treasurer, to desist from
ordering the release of any local funds to answer for expenses incurred in the holding of such plebiscite until
ordered by the Court. (Rollo pp. 9-10).

Petitioners further prayed that the respondent COMELEC hold in abeyance the issuance of any official
proclamation of the results of the aforestated plebiscite.

During the pendency of this case, a motion that he be allowed to appear as amicus curiae in this case (dated December 27,
1985 and filed with the Court on January 2, 1986) was submitted by former Senator Ambrosio Padilla. Said motion was
granted in Our resolution of January 2, 1986.

Acting on the petition, as well as on the supplemental petition for prohibition with preliminary injunction with prayer for
restraining order, the Court, on January 7, 1986 resolved, without giving due course to the same, to require respondents to
comment, not to file a motion to dismiss. Complying with said resolution, public respondents, represented by the Office of the
Solicitor General, on January 14, 1986, filed their Comment, arguing therein that the challenged statute.-Batas Pambansa
885, should be accorded the presumption of legality. They submit that the said law is not void on its face and that the petition
does not show a clear, categorical and undeniable demonstration of the supposed infringement of the Constitution.
Respondents state that the powers of the Batasang-Pambansa to enact the assailed law is beyond question. They claim that
Batas Pambansa Big. 885 does not infringe the Constitution because the requisites of the Local Government Code have been
complied with. Furthermore, they submit that this case has now become moot and academic with the proclamation of the new
Province of Negros del Norte.

Respondents argue that the remaining cities and municipalities of the Province of Negros Occidental not included in the area
of the new Province of Negros del Norte, de not fall within the meaning and scope of the term "unit or units affected", as
referred to in Section 3 of Art. XI of our Constitution. On this reasoning, respondents maintain that Batas Pambansa Blg. 885
does not violate the Constitution, invoking and citing the case of Governor Zosimo Paredes versus the Honorable Executive
Secretary to the President, et al. (G.R. No. 55628, March 2, 1984 (128 SCRA 61), particularly the pronouncements therein,
hereunder quoted:
1. Admittedly,this is one of those cases where the discretion of the Court is allowed considerable leeway.
There is indeed an element of ambiguity in the use of the expression 'unit or units affected'. It is plausible to
assert as petitioners do that when certain Barangays are separated from a parent municipality to form a new
one, all the voters therein are affected. It is much more persuasive, however, to contend as respondents do
that the acceptable construction is for those voters, who are not from the barangays to be separated, should
be excluded in the plebiscite.

2. For one thing, it is in accordance with the settled doctrine that between two possible constructions, one
avoiding a finding of unconstitutionality and the other yielding such a result, the former is to be preferred. That
which will save, not that which will destroy, commends itself for acceptance. After all, the basic presumption
all these years is one of validity. ...

3. ... Adherence to such philosophy compels the conclusion that when there are indications that the
inhabitants of several barangays are inclined to separate from a parent municipality they should be allowed to
do so. What is more logical than to ascertain their will in a plebiscite called for that purpose. It is they, and
they alone, who shall constitute the new unit. New responsibilities will be assumed. New burdens will be
imposed. A new municipal corporation will come into existence. Its birth will be a matter of choice-their choice.
They should be left alone then to decide for themselves. To allow other voters to participate will not yield a
true expression of their will. They may even frustrate it, That certainly will be so if they vote against it for
selfish reasons, and they constitute the majority. That is not to abide by the fundamental principle of the
Constitution to promote local autonomy, the preference being for smaller units. To rule as this Tribunal does is
to follow an accepted principle of constitutional construction, that in ascertaining the meaning of a particular
provision that may give rise to doubts, the intent of the framers and of the people may be gleaned from
provisions in pari materia.

Respondents submit that said ruling in the aforecited case applies equally with force in the case at bar. Respondents also
maintain that the requisites under the Local Government Code (P.D. 337) for the creation of the new province of Negros del
Norte have all been duly complied with, Respondents discredit petitioners' allegations that the requisite area of 3,500 square
kilometers as so prescribed in the Local Government Code for a new province to be created has not been satisfied.
Petitioners insist that the area which would comprise the new province of Negros del Norte, would only be about 2,856.56
square kilometers and which evidently would be lesser than the minimum area prescribed by the governing statute.
Respondents, in this regard, point out and stress that Section 2 of Batas Pambansa Blg. 885 creating said new province
plainly declares that the territorial boundaries of Negros del Norte comprise an area of 4,019.95 square kilometers, more or
less.

As a final argument, respondents insist that instant petition has been rendered moot and academic considering that a
plebiscite has been already conducted on January 3, 1986; that as a result thereof, the corresponding certificate of canvass
indicated that out of 195,134 total votes cast in said plebiscite, 164,734 were in favor of the creation of Negros del Norte and
30,400 were against it; and because "the affirmative votes cast represented a majority of the total votes cast in said plebiscite,
the Chairman of the Board of Canvassers proclaimed the new province which shall be known as "Negros del Norte". Thus,
respondents stress the fact that following the proclamation of Negros del Norte province, the appointments of the officials of
said province created were announced. On these considerations, respondents urge that this case should be dismissed for
having been rendered moot and academic as the creation of the new province is now a "fait accompli."

In resolving this case, it will be useful to note and emphasize the facts which appear to be agreed to by the parties herein or
stand unchallenged.

Firstly, there is no disagreement that the Provincial Treasurer of the Province of Negros Occidental has not disbursed, nor
was required to disburse any public funds in connection with the plebiscite held on January 3, 1986 as so disclosed in the
Comment to the Petition filed by the respondent Provincial Treasurer of Negros Occidental dated January 20, 1986 (Rollo, pp.
36-37). Thus, the prayer of the petitioners that said Provincial Treasurer be directed by this Court to desist from ordering the
release of any public funds on account of such plebiscite should not longer deserve further consideration.

Secondly, in Parliamentary Bill No. 3644 which led to the enactment of Batas Pambansa Blg. 885 and the creation of the new
Province of Negros del Norte, it expressly declared in Sec. 2 of the aforementioned Parliamentary Bill, the following:

SEC. 2. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality
of Salvador Benedicto and the City of San Carlos on the South and the natural boundaries of the northern
portion of the Island of Negros on the West, North and East, containing an area of 285,656 hectares more or
less. (Emphasis supplied).
However, when said Parliamentary Bill No. 3644 was very quickly enacted into Batas Pambansa Blg. 885, the boundaries of
the new Province of Negros del Norte were defined therein and its boundaries then stated to be as follows:

SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of Calatrava, Toboso,
Escalante, Sagay, Manapla, Victorias, E.R. Magalona; and Salvador Benedicto, all in the northern portion of
the Island of Negros, are hereby separated from the Province of Negros Occidental and constituted into a
new province to be known as the Province of Negros del Norte.

SEC. 1. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality
of Salvador Benedicto and the City of San Carlos on the south and the territorial limits of the northern portion
of the Island of Negros on the West, North and East, comprising a territory of 4,019.95 square kilometers
more or less.

Equally accepted by the parties is the fact that under the certification issued by Provincial Treasurer Julian L. Ramirez of the
Province of Negros Occidental, dated July 16, 1985, it was therein certified as follows:

xxx xxx xxx

This is to certify that the following cities and municipalities of Negros Occidental have the land area as
indicated hereunder based on the Special Report No. 3, Philippines 1980, Population, Land Area and Density:
1970, 1975 and 1980 by the National Census and Statistics Office, Manila.

Land Area

(Sq. Km.)

1. Silay City ...................................................................214.8

2. E.B. Magalona............................................................113.3

3. Victorias.....................................................................133.9

4. Manapla......................................................................112.9

5. Cadiz City ..................................................................516.5

6. Sagay .........................................................................389.6

7. Escalante ....................................................................124.0

8. Toboso.......................................................................123.4

9. Calatrava.....................................................................504.5

10. San Carlos City...........................................................451.3

11. Don Salvador Benedicto.................................... (not available)

This certification is issued upon the request of Dr. Patricio Y. Tan for whatever purpose it may serve him.

(SGD.) JULIAN L. RAMIREZ

Provincial Treasurer (Exh. "C" of Petition, Rollo, p. 90).

Although in the above certification it is stated that the land area of the relatively new municipality of Don Salvador Benedicto is
not available, it is an uncontradicted fact that the area comprising Don Salvador municipality, one of the component units of
the new province, was derived from the City of San Carlos and from the Municipality of Calatrava, Negros Occidental, and
added thereto was a portion of about one-fourth the land area of the town of Murcia, Negros Occidental. It is significant to note
the uncontroverted submission of petitioners that the total land area of the entire municipality of Murcia, Negros Occidental is
only 322.9 square kilometers (Exh. "D", Rollo, p. 91). One-fourth of this total land area of Murcia that was added to the
portions derived from the land area of Calatrava, Negros Occidental and San Carlos City (Negros Occidental) would
constitute, therefore, only 80.2 square kilometers. This area of 80.2 square kilometers if then added to 2,685.2 square
kilometers, representing the total land area of the Cities of Silay, San Carlos and Cadiz and the Municipalities of E.R.
Magalona, Victorias, Manapla, Sagay, Escalante, Taboso and Calatrava, will result in approximately an area of only 2,765.4
square kilometers using as basis the Special Report, Philippines 1980, Population, Land Area and Density: 1970, 1975 and
1980 of the National Census and Statistics Office, Manila (see Exhibit "C", Rollo, p. 90).

No controversion has been made by respondent with respect to the allegations of petitioners that the original provision in the
draft legislation, Parliamentary Bill No. 3644, reads:

SEC. 4. A plebiscite shall be conducted in the areas affected within a period of one hundred and twenty days
from the approval of this Act. After the ratification of the creation of the Province of Negros del Norte by a
majority of the votes cast in such plebiscite, the President shall appoint the first officials of the new province.

However, when Batas Pambansa Blg. 885 was enacted, there was a significant change in the above provision. The statute,
as modified, provides that the requisite plebiscite "shall be conducted in the proposed new province which are the areas
affected."

It is this legislative determination limiting the plebiscite exclusively to the cities and towns which would comprise the new
province that is assailed by the petitioners as violative of the provisions of our Constitution. Petitioners submit that Sec. 3,
ART XI thereof, contemplates a plebiscite that would be held in the unit or units affected by the creation of the new province
as a result of the consequent division of and substantial alteration of the boundaries of the existing province. In this instance,
the voters in the remaining areas of the province of Negros Occidental should have been allowed to participate in the
questioned plebiscite.

Considering that the legality of the plebiscite itself is challenged for non-compliance with constitutional requisites, the fact that
such plebiscite had been held and a new province proclaimed and its officials appointed, the case before Us cannot truly be
viewed as already moot and academic. Continuation of the existence of this newly proclaimed province which petitioners
strongly profess to have been illegally born, deserves to be inquired into by this Tribunal so that, if indeed, illegality attaches to
its creation, the commission of that error should not provide the very excuse for perpetuation of such wrong. For this Court to
yield to the respondents' urging that, as there has been fait accompli then this Court should passively accept and accede to
the prevailing situation is an unacceptable suggestion. Dismissal of the instant petition, as respondents so propose is a
proposition fraught with mischief. Respondents' submission will create a dangerous precedent. Should this Court decline now
to perform its duty of interpreting and indicating what the law is and should be, this might tempt again those who strut about in
the corridors of power to recklessly and with ulterior motives, create, merge, divide and/or alter the boundaries of political
subdivisions, either brazenly or stealthily, confident that this Court will abstain from entertaining future challenges to their acts
if they manage to bring about a fait accompli.

In the light of the facts and circumstances alluded to by petitioners as attending to the unusually rapid creation of the instant
province of Negros del Norte after a swiftly scheduled plebiscite, this Tribunal has the duty to repudiate and discourage the
commission of acts which run counter to the mandate of our fundamental law, done by whatever branch of our government.
This Court gives notice that it will not look with favor upon those who may be hereafter inclined to ram through all sorts of
legislative measures and then implement the same with indecent haste, even if such acts would violate the Constitution and
the prevailing statutes of our land. It is illogical to ask that this Tribunal be blind and deaf to protests on the ground that what is
already done is done. To such untenable argument the reply would be that, be this so, the Court, nevertheless, still has the
duty and right to correct and rectify the wrong brought to its attention.

On the merits of the case.

Aside from the simpler factual issue relative to the land area of the new province of Negros del Norte, the more significant and
pivotal issue in the present case revolves around in the interpretation and application in the case at bar of Article XI, Section 3
of the Constitution, which being brief and for convenience, We again quote:

SEC. 3. No province, city, municipality or barrio may be created, divided, merged abolished, or its boundary
substantially altered, except in accordance with the criteria established in the local government code, and
subject to the approval by a majority of the votes in a plebiscite in the unit or units affected.

It can be plainly seen that the aforecited constitutional provision makes it imperative that there be first obtained "the approval
of a majority of votes in the plebiscite in the unit or units affected" whenever a province is created, divided or merged and
there is substantial alteration of the boundaries. It is thus inescapable to conclude that the boundaries of the existing province
of Negros Occidental would necessarily be substantially altered by the division of its existing boundaries in order that there
can be created the proposed new province of Negros del Norte. Plain and simple logic will demonstrate than that two political
units would be affected. The first would be the parent province of Negros Occidental because its boundaries would be
substantially altered. The other affected entity would be composed of those in the area subtracted from the mother province to
constitute the proposed province of Negros del Norte.

We find no way to reconcile the holding of a plebiscite that should conform to said constitutional requirement but eliminates
the participation of either of these two component political units. No amount of rhetorical flourishes can justify exclusion of the
parent province in the plebiscite because of an alleged intent on the part of the authors and implementors of the challenged
statute to carry out what is claimed to be a mandate to guarantee and promote autonomy of local government units. The
alleged good intentions cannot prevail and overrule the cardinal precept that what our Constitution categorically directs to be
done or imposes as a requirement must first be observed, respected and complied with. No one should be allowed to pay
homage to a supposed fundamental policy intended to guarantee and promote autonomy of local government units but at the
same time transgress, ignore and disregard what the Constitution commands in Article XI Section 3 thereof. Respondents
would be no different from one who hurries to pray at the temple but then spits at the Idol therein.

We find no merit in the submission of the respondents that the petition should be dismissed because the motive and wisdom
in enacting the law may not be challenged by petitioners. The principal point raised by the petitioners is not the wisdom and
motive in enacting the law but the infringement of the Constitution which is a proper subject of judicial inquiry.

Petitioners' discussion regarding the motives behind the enactment of B.P. Blg. 885 to say the least, are most enlightening
and provoking but are factual issues the Court cannot properly pass upon in this case. Mention by petitioners of the
unexplained changes or differences in the proposed Parliamentary Bill No. 3644 and the enacted Batas Pambansa Blg. 885;
the swift and surreptitious manner of passage and approval of said law; the abrupt scheduling of the plebiscite; the reference
to news articles regarding the questionable conduct of the said plebiscite held on January 3, 1986; all serve as interesting
reading but are not the decisive matters which should be reckoned in the resolution of this case.

What the Court considers the only significant submissions lending a little support to respondents' case is their reliance on the
rulings and pronouncements made by this Court in the case of Governor Zosimo Paredes versus The Honorable Executive
Secretary to the President, et al., G.R. No. 55628, March 2, 1984 (128 SCRA 6). In said case relating to a plebiscite held to
ratify the creation of a new municipality from existing barangays, this Court upheld the legality of the plebiscite which was
participated in exclusively by the people of the barangay that would constitute the new municipality.

This Court is not unmindful of this solitary case alluded to by respondents. What is, however, highly significant are the
prefatory statements therein stating that said case is "one of those cases where the discretion of the Court is allowed
considerable leeway" and that "there is indeed an element of ambiguity in the use of the expression unit or units affected."
The ruling rendered in said case was based on a claimed prerogative of the Court then to exercise its discretion on the matter.
It did not resolve the question of how the pertinent provision of the Constitution should be correctly interpreted.

The ruling in the aforestated case of Paredes vs. The Honorable Executive Secretary, et al. (supra) should not be taken as a
doctrinal or compelling precedent when it is acknowledged therein that "it is plausible to assert, as petitioners do, that when
certain Barangays are separated from a parent municipality to form a new one, all the voters therein are affected."

It is relevant and most proper to mention that in the aforecited case of Paredes vs. Executive Secretary, invoked by
respondents, We find very lucidly expressed the strong dissenting view of Justice Vicente Abad Santos, a distinguished
member of this Court, as he therein voiced his opinion, which We hereunder quote:

2. ... when the Constitution speaks of "the unit or units affected" it means all of the people of the municipality if
the municipality is to be divided such as in the case at bar or an of the people of two or more municipalities if
there be a merger. I see no ambiguity in the Constitutional provision.

This dissenting opinion of Justice Vicente Abad Santos is the— forerunner of the ruling which We now consider applicable to
the case at bar, In the analogous case of Emilio C. Lopez, Jr., versus the Honorable Commission on Elections, L-56022, May
31, 1985, 136 SCRA 633, this dissent was reiterated by Justice Abad Santos as he therein assailed as suffering from a
constitutional infirmity a referendum which did not include all the people of Bulacan and Rizal, when such referendum was
intended to ascertain if the people of said provinces were willing to give up some of their towns to Metropolitan Manila. His
dissenting opinion served as a useful guideline in the instant case.
Opportunity to re-examine the views formerly held in said cases is now afforded the present Court. The reasons in the
mentioned cases invoked by respondents herein were formerly considered acceptable because of the views then taken that
local autonomy would be better promoted However, even this consideration no longer retains persuasive value.

The environmental facts in the case before Us readily disclose that the subject matter under consideration is of greater
magnitude with concomitant multifarious complicated problems. In the earlier case, what was involved was a division of a
barangay which is the smallest political unit in the Local Government Code. Understandably, few and lesser problems are
involved. In the case at bar, creation of a new province relates to the largest political unit contemplated in Section 3, Art. XI of
the Constitution. To form the new province of Negros del Norte no less than three cities and eight municipalities will be
subtracted from the parent province of Negros Occidental. This will result in the removal of approximately 2,768.4 square
kilometers from the land area of an existing province whose boundaries will be consequently substantially altered. It becomes
easy to realize that the consequent effects cf the division of the parent province necessarily will affect all the people living in
the separate areas of Negros Occidental and the proposed province of Negros del Norte. The economy of the parent province
as well as that of the new province will be inevitably affected, either for the better or for the worse. Whatever be the case,
either or both of these political groups will be affected and they are, therefore, the unit or units referred to in Section 3 of
Article XI of the Constitution which must be included in the plebiscite contemplated therein.

It is a well accepted rule that "in ascertaining the meaning of a particular provision that may give rise to doubts, the intent of
the framers and of the people, may be gleaned from the provisions in pari materia." Parliamentary Bill No. 3644 which
proposed the creation of the new province of Negros del Norte recites in Sec. 4 thereof that "the plebiscite shall be conducted
in the areas affected within a period of one hundred and twenty days from the approval of this Act." As this draft legislation
speaks of "areas," what was contemplated evidently are plurality of areas to participate in the plebiscite. Logically, those to be
included in such plebiscite would be the people living in the area of the proposed new province and those living in the parent
province. This assumption will be consistent with the requirements set forth in the Constitution.

We fail to find any legal basis for the unexplained change made when Parliamentary Bill No. 3644 was enacted into Batas
Pambansa Blg. 885 so that it is now provided in said enabling law that the plebiscite "shall be conducted in the proposed new
province which are the areas affected." We are not disposed to agree that by mere legislative fiat the unit or units affected
referred in the fundamental law can be diminished or restricted by the Batasang Pambansa to cities and municipalities
comprising the new province, thereby ignoring the evident reality that there are other people necessarily affected.

In the mind of the Court, the change made by those responsible for the enactment of Batas Pambansa Blg. 885 betrays their
own misgivings. They must have entertained apprehensions that by holding the plebiscite only in the areas of the new
proposed province, this tactic will be tainted with illegality. In anticipation of a possible strong challenge to the legality of such
a plebiscite there was, therefore, deliberately added in the enacted statute a self-serving phrase that the new province
constitutes the area affected. Such additional statement serves no useful purpose for the same is misleading, erroneous and
far from truth. The remaining portion of the parent province is as much an area affected. The substantial alteration of the
boundaries of the parent province, not to mention the other adverse economic effects it might suffer, eloquently argue the
points raised by the petitioners.

Petitioners have averred without contradiction that after the creation of Negros del Norte, the province of Negros Occidental
would be deprived of the long established Cities of Silay, Cadiz, and San Carlos, as well as the municipality of Victorias. No
controversion has been made regarding petitioners' assertion that the areas of the Province of Negros Occidental will be
diminished by about 285,656 hectares and it will lose seven of the fifteen sugar mills which contribute to the economy of the
whole province. In the language of petitioners, "to create Negros del Norte, the existing territory and political subdivision
known as Negros Occidental has to be partitioned and dismembered. What was involved was no 'birth' but "amputation." We
agree with the petitioners that in the case of Negros what was involved was a division, a separation; and consequently, as
Sec. 3 of Article XI of the Constitution anticipates, a substantial alteration of boundary.

As contended by petitioners,—

Indeed, the terms 'created', 'divided', 'merged', 'abolished' as used in the constitutional provision do not
contemplate distinct situation isolated from the mutually exclusive to each other. A Province
maybe created where an existing province is divided or two provinces merged. Such cases necessarily will
involve existing unit or units abolished and definitely the boundary being substantially altered.

It would thus be inaccurate to state that where an existing political unit is divided or its boundary substantially
altered, as the Constitution provides, only some and not all the voters in the whole unit which suffers
dismemberment or substantial alteration of its boundary are affected. Rather, the contrary is true.
It is also Our considered view that even hypothetically assuming that the merits of this case can depend on the mere
discretion that this Court may exercise, nevertheless, it is the petitioners' case that deserve to be favored.

It is now time for this Court to set aside the equivocations and the indecisive pronouncements in the adverted case of Paredes
vs. the Honorable Executive Secretary, et al. (supra). For the reasons already here express, We now state that the ruling in
the two mentioned cases sanctioning the exclusion of the voters belonging to an existing political unit from which the new
political unit will be derived, from participating in the plebiscite conducted for the purpose of determining the formation of
another new political unit, is hereby abandoned.

In their supplemental petition, dated January 4, 1986, it is prayed for by petitioners that a writ of mandamus be issued,
directing the respondent Commission on Elections, to schedule the holding of another plebiscite at which all the qualified
voters of the entire province of Negros Occidental as now existing shall participate and that this Court make a pronouncement
that the plebiscite held on January 3, 1986 has no legal effect for being a patent nullity.

The Court is prepared to declare the said plebiscite held on January 3, 1986 as null and void and violative of the provisions of
Sec. 3, Article XI of the Constitution. The Court is not, however, disposed to direct the conduct of a new plebiscite, because
We find no legal basis to do so. With constitutional infirmity attaching to the subject Batas Pambansa Big. 885 and also
because the creation of the new province of Negros del Norte is not in accordance with the criteria established in the Local
Government Code, the factual and legal basis for the creation of such new province which should justify the holding of another
plebiscite does not exist.

Whatever claim it has to validity and whatever recognition has been gained by the new province of Negros del Norte because
of the appointment of the officials thereof, must now be erased. That Negros del Norte is but a legal fiction should be
announced. Its existence should be put to an end as quickly as possible, if only to settle the complications currently attending
to its creation. As has been manifested, the parent province of Negros del Norte has been impleaded as the defendant in a
suit filed by the new Province of Negros del Norte, before the Regional Trial Court of Negros (del Norte), docketed as Civil
Case No. 169-C, for the immediate allocation, distribution and transfer of funds by the parent province to the new province, in
an amount claimed to be at least P10,000,000.00.

The final nail that puts to rest whatever pretension there is to the legality of the province of Negros del Norte is the significant
fact that this created province does not even satisfy the area requirement prescribed in Section 197 of the Local Government
Code, as earlier discussed.

It is of course claimed by the respondents in their Comment to the exhibits submitted by the petitioners (Exhs. C and D, Rollo,
pp. 19 and 91), that the new province has a territory of 4,019.95 square kilometers, more or less. This assertion is made to
negate the proofs submitted, disclosing that the land area of the new province cannot be more than 3,500 square kilometers
because its land area would, at most, be only about 2,856 square kilometers, taking into account government statistics
relative to the total area of the cities and municipalities constituting Negros del Norte. Respondents insist that when Section
197 of the Local Government Code speaks of the territory of the province to be created and requires that such territory be at
least 3,500 square kilometers, what is contemplated is not only the land area but also the land and water over which the said
province has jurisdiction and control. It is even the submission of the respondents that in this regard the marginal sea within
the three mile limit should be considered in determining the extent of the territory of the new province. Such an interpretation
is strained, incorrect, and fallacious.

The last sentence of the first paragraph of Section 197 is most revealing. As so stated therein the "territory need not be
contiguous if it comprises two or more islands." The use of the word territory in this particular provision of the Local
Government Code and in the very last sentence thereof, clearly reflects that "territory" as therein used, has reference only to
the mass of land area and excludes the waters over which the political unit exercises control.

Said sentence states that the "territory need not be contiguous." Contiguous means (a) in physical contact; (b) touching along
all or most of one side; (c) near, text, or adjacent (Webster's New World Dictionary, 1972 Ed., p. 307). "Contiguous", when
employed as an adjective, as in the above sentence, is only used when it describes physical contact, or a touching of sides of
two solid masses of matter. The meaning of particular terms in a statute may be ascertained by reference to words associated
with or related to them in the statute (Animal Rescue League vs. Assessors, 138 A.L.R. p. 110). Therefore, in the context of
the sentence above, what need not be "contiguous" is the "territory" the physical mass of land area. There would arise no
need for the legislators to use the word contiguous if they had intended that the term "territory" embrace not only land area but
also territorial waters. It can be safely concluded that the word territory in the first paragraph of Section 197 is meant to be
synonymous with "land area" only. The words and phrases used in a statute should be given the meaning intended by the
legislature (82 C.J.S., p. 636). The sense in which the words are used furnished the rule of construction (In re Winton Lumber
Co., 63 p. 2d., p. 664).
The distinction between "territory" and "land area" which respondents make is an artificial or strained construction of the
disputed provision whereby the words of the statute are arrested from their plain and obvious meaning and made to bear an
entirely different meaning to justify an absurd or unjust result. The plain meaning in the language in a statute is the safest
guide to follow in construing the statute. A construction based on a forced or artificial meaning of its words and out of harmony
of the statutory scheme is not to be favored (Helvering vs. Hutchings, 85 L. Ed., p. 909).

It would be rather preposterous to maintain that a province with a small land area but which has a long, narrow, extended
coast line, (such as La Union province) can be said to have a larger territory than a land-locked province (such as Ifugao or
Benguet) whose land area manifestly exceeds the province first mentioned.

Allegations have been made that the enactment of the questioned state was marred by "dirty tricks", in the introduction and
passing of Parliamentary Bill No. 3644 "in secret haste" pursuant to sinister designs to achieve "pure and simple
gerrymandering; "that recent happenings more than amply demonstrate that far from guaranteeing its autonomy it (Negros del
Norte) has become the fiefdom of a local strongman" (Rollo, p. 43; emphasis supplied).

It is not for this Court to affirm or reject such matters not only because the merits of this case can be resolved without need of
ascertaining the real motives and wisdom in the making of the questioned law. No proper challenge on those grounds can
also be made by petitioners in this proceeding. Neither may this Court venture to guess the motives or wisdom in the exercise
of legislative powers. Repudiation of improper or unwise actions taken by tools of a political machinery rests ultimately, as
recent events have shown, on the electorate and the power of a vigilant people.

Petitioners herein deserve and should receive the gratitude of the people of the Province of Negros Occidental and even by
our Nation. Commendable is the patriotism displayed by them in daring to institute this case in order to preserve the continued
existence of their historic province. They were inspired undoubtedly by their faithful commitment to our Constitution which they
wish to be respected and obeyed. Despite the setbacks and the hardships which petitioners aver confronted them, they
valiantly and unfalteringly pursued a worthy cause. A happy destiny for our Nation is assured as long as among our people
there would be exemplary citizens such as the petitioners herein.

WHEREFORE, Batas Pambansa Blg. 885 is hereby declared unconstitutional. The proclamation of the new province of
Negros del Norte, as well as the appointment of the officials thereof are also declared null and void.

SO ORDERED.

Abad Santos, Feria, Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz and Paras, JJ., concur.

Melencio-Herrera, J., concurs in the result.

Separate Opinions

TEEHANKEE, C.J., concurring:

I congratulate my brethren for the unanimous decision we issue today striking down an Act approved in "deep secrecy and
inordinate haste" apparently on the last day of session of the Batasang Pambansa on December 3, 1985 and signed on the
same day by the then President of the authoritarian regime. The Act provided for the partitioning of the province of Negros
Occidental and would substantially alter its boundaries by lopping off the progressive cities of Silay, Cadiz and San Carlos and
municipality of Victorias with seven other municipalities to constitute the proposed new province of Negros del Norte. Negros
Occidental would thereby lose 4,019.95 square kilometers in area and seven of fifteen sugar mills which contribute to the
economic progress and welfare of the whole province.

The discredited Commission on Elections of the time played its customary subservient role by setting the plebiscite with equal
"indecent haste" for January 3, 1986, notwithstanding that the Act itself provided for an ample period of 120 days from its
approval within which to inform the people of the proposed dismemberment and allow them to freely express and discuss the
momentous issue and cast their vote intelligently. This was learned by petitioners through an item in the printed media one
day before they filed the present rush petition on December 23, 1985 to seek a restraining order to atop the plebiscite, even
as no printed copies of the Act as finally enacted and approved were available to them and the Act had not been published, as
required by law, for its effectivity. As petitioners ruefully state: "it was in vain hope" for everything had apparently been timed
for the Christmas holidays; the Court was in Christmas recess and "there was no chance to have their plea for a restraining
order acted upon speedily enough." In fact, it was only on January 7, 1986 that the Court took cognizance of the petition and
required respondents' comment.

The scenario, as petitioners urgently asserted, was "to have the creation of the new Province a fait accompli by the time
elections are held on February 7, 1986. The transparent purpose is unmistakably so that the new Governor and other officials
shall by then have been installed in office, ready to function for purposes of the election for President and Vice-President."
Thus, the petitioners reported after the event: "With indecent haste, the plebiscite was held; Negros del Norte was set up and
proclaimed by President Marcos as in existence; a new set of government officials headed by Governor Armando Gustilo was
appointed; and, by the time the elections were held on February 7, 1986, the political machinery was in place to deliver the
'solid North' to ex-President Marcos. The rest is history. What happened in Negros del Norte during the elections-the
unashamed use of naked power and resources contributed in no small way to arousing 'people's power' and steel the ordinary
citizen to perform deeds of courage and patriotism that makes one proud to be a Filipino today. (Record, pp. 9, 41).

The challenged Act is manifestly void and unconstitutional. Consequently, all the implementing acts complained of, viz. the
plebiscite, the proclamation of a new province of Negros del Norte and the appointment of its officials are equally void. The
limited holding of the plebiscite only in the areas of the proposed new province (as provided by Section 4 of the Act) to the
exclusion of the voters of the remaining areas of the integral province of Negros Occidental (namely, the three cities of
Bacolod, Bago and La Carlota and the Municipalities of La Castellana, Isabela, Moises Padilla, Pontevedra, Hinigaran,
Himamaylan, Kabankalan, Murcia, Valladolid, San Enrique, Ilog, Cauayan ,Hinoba-an and Sipalay and Candoni), grossly
contravenes and disregards the mandate of Article XI, section 3 of the then prevailing 1973 Constitution that no province may
be created or divided or its boundary substantially altered without "the approval of a majority of the votes in a plebiscite in
the unit or units affected." It is plain that all the cities and municipalities of the province of Negros Occidental, not merely those
of the proposed new province, comprise the units affected. It follows that the voters of the whole and entire province of Negros
Occidental have to participate and give their approval in the plebiscite, because the whole province is affected by its proposed
division and substantial alteration of its boundary. To limit the plebiscite to only the voters of the areas to be partitioned and
seceded from the province is as absurd and illogical as allowing only the secessionists to vote for the secession that they
demanded against the wishes of the majority and to nullify the basic principle of majority rule.

The argument of fait accompli viz. that the railroaded plebiscite of January 3, 1986 was held and can no longer be enjoined
and that the new province of Negros del Norte has been constituted, begs the issue of invalidity of the challenged Act. This
Court has always held that it "does not look with favor upon parties 'racing to beat an injunction or restraining order' which
they have reason to believe might be forthcoming from the Court by virtue of the filing and pendency of the appropriate
petition therefor. Where the restraining order or preliminary injunction are found to have been properly issued, as in the case
at bar, mandatory writs shall be issued by the Court to restore matters to the status quo ante." (Banzon v. Cruz, 45 SCRA
475, 506 [1972]). Where, as in this case, there was somehow a failure to properly issue the restraining order stopping the
holding of the illegal plebiscite, the Court will issue the mandatory writ or judgment to restore matters to the status quo
ante and restore the territorial integrity of the province of Negros Occidental by declaring the unconstitutionality of the
challenged Act and nullifying the invalid proclamation of the proposed new province of Negros del Norte and the equally
invalid appointment of its officials.

Separate Opinions

TEEHANKEE, C.J., concurring:

I congratulate my brethren for the unanimous decision we issue today striking down an Act approved in "deep secrecy and
inordinate haste" apparently on the last day of session of the Batasang Pambansa on December 3, 1985 and signed on the
same day by the then President of the authoritarian regime. The Act provided for the partitioning of the province of Negros
Occidental and would substantially alter its boundaries by lopping off the progressive cities of Silay, Cadiz and San Carlos and
municipality of Victorias with seven other municipalities to constitute the proposed new province of Negros del Norte. Negros
Occidental would thereby lose 4,019.95 square kilometers in area and seven of fifteen sugar mills which contribute to the
economic progress and welfare of the whole province.

The discredited Commission on Elections of the time played its customary subservient role by setting the plebiscite with equal
"indecent haste" for January 3, 1986, notwithstanding that the Act itself provided for an ample period of 120 days from its
approval within which to inform the people of the proposed dismemberment and allow them to freely express and discuss the
momentous issue and cast their vote intelligently. This was learned by petitioners through an item in the printed media one
day before they filed the present rush petition on December 23, 1985 to seek a restraining order to atop the plebiscite, even
as no printed copies of the Act as finally enacted and approved were available to them and the Act had not been published, as
required by law, for its effectivity. As petitioners ruefully state: "it was in vain hope" for everything had apparently been timed
for the Christmas holidays; the Court was in Christmas recess and "there was no chance to have their plea for a restraining
order acted upon speedily enough." In fact, it was only on January 7, 1986 that the Court took cognizance of the petition and
required respondents' comment.

The scenario, as petitioners urgently asserted, was "to have the creation of the new Province a fait accompli by the time
elections are held on February 7, 1986. The transparent purpose is unmistakably so that the new Governor and other officials
shall by then have been installed in office, ready to function for purposes of the election for President and Vice-President."
Thus, the petitioners reported after the event: "With indecent haste, the plebiscite was held; Negros del Norte was set up and
proclaimed by President Marcos as in existence; a new set of government officials headed by Governor Armando Gustilo was
appointed; and, by the time the elections were held on February 7, 1986, the political machinery was in place to deliver the
'solid North' to ex-President Marcos. The rest is history. What happened in Negros del Norte during the elections-the
unashamed use of naked power and resources contributed in no small way to arousing 'people's power' and steel the ordinary
citizen to perform deeds of courage and patriotism that makes one proud to be a Filipino today. (Record, pp. 9, 41).

The challenged Act is manifestly void and unconstitutional. Consequently, all the implementing acts complained of, viz. the
plebiscite, the proclamation of a new province of Negros del Norte and the appointment of its officials are equally void. The
limited holding of the plebiscite only in the areas of the proposed new province (as provided by Section 4 of the Act) to the
exclusion of the voters of the remaining areas of the integral province of Negros Occidental (namely, the three cities of
Bacolod, Bago and La Carlota and the Municipalities of La Castellana, Isabela, Moises Padilla, Pontevedra, Hinigaran,
Himamaylan, Kabankalan, Murcia, Valladolid, San Enrique, Ilog, Cauayan ,Hinoba-an and Sipalay and Candoni), grossly
contravenes and disregards the mandate of Article XI, section 3 of the then prevailing 1973 Constitution that no province may
be created or divided or its boundary substantially altered without "the approval of a majority of the votes in a plebiscite in
the unit or units affected." It is plain that all the cities and municipalities of the province of Negros Occidental, not merely those
of the proposed new province, comprise the units affected. It follows that the voters of the whole and entire province of Negros
Occidental have to participate and give their approval in the plebiscite, because the whole province is affected by its proposed
division and substantial alteration of its boundary. To limit the plebiscite to only the voters of the areas to be partitioned and
seceded from the province is as absurd and illogical as allowing only the secessionists to vote for the secession that they
demanded against the wishes of the majority and to nullify the basic principle of majority rule.

The argument of fait accompli viz. that the railroaded plebiscite of January 3, 1986 was held and can no longer be enjoined
and that the new province of Negros del Norte has been constituted, begs the issue of invalidity of the challenged Act. This
Court has always held that it "does not look with favor upon parties 'racing to beat an injunction or restraining order' which
they have reason to believe might be forthcoming from the Court by virtue of the filing and pendency of the appropriate
petition therefor. Where the restraining order or preliminary injunction are found to have been properly issued, as in the case
at bar, mandatory writs shall be issued by the Court to restore matters to the status quo ante." (Banzon v. Cruz, 45 SCRA
475, 506 [1972]). Where, as in this case, there was somehow a failure to properly issue the restraining order stopping the
holding of the illegal plebiscite, the Court will issue the mandatory writ or judgment to restore matters to the status quo
ante and restore the territorial integrity of the province of Negros Occidental by declaring the unconstitutionality of the
challenged Act and nullifying the invalid proclamation of the proposed new province of Negros del Norte and the equally
invalid appointment of its officials.
CASE #10

[G.R. No. 124893. April 18, 1997]

LYNETTE G. GARVIDA, petitioner, vs. FLORENCIO G. SALES, JR., THE HONORABLE COMMISSION ON ELECTIONS,
ELECTION OFFICER DIONISIO F. RIOS and PROVINCIAL SUPERVISOR NOLI PIPO, respondents.

DECISION
PUNO, J.:

Petitioner Lynette G. Garvida seeks to annul and set aside the order dated May 2, 1996 of respondent Commission on
Elections (COMELEC) en banc suspending her proclamation as the duly elected Chairman of the Sangguniang Kabataan of
Barangay San Lorenzo, Municipality of Bangui, Ilocos Norte.
The facts are undisputed. The Sangguniang Kabataan (SK) elections nationwide was scheduled to be held on May 6,
1996. On March 16, 1996, petitioner applied for registration as member and voter of the Katipunan ng Kabataan of Barangay
San Lorenzo, Bangui, Ilocos Norte. The Board of Election Tellers, however, denied her application on the ground that
petitioner, who was then twenty-one years and ten (10) months old, exceeded the age limit for membership in the Katipunan
ng Kabataan as laid down in Section 3 [b] of COMELEC Resolution No. 2824.
On April 2, 1996, petitioner filed a "Petition for Inclusion as Registered Kabataang Member and Voter" with the Municipal
Circuit Trial Court, Bangui-Pagudpud-Adams-Damalneg, Ilocos Norte. In a decision dated April 18, 1996, the said court found
petitioner qualified and ordered her registration as member and voter in the Katipunan ng Kabataan. [1] The Board of Election
Tellers appealed to the Regional Trial Court, Bangui, Ilocos Norte. [2] The presiding judge of the Regional Trial Court, however,
inhibited himself from acting on the appeal due to his close association with petitioner. [3]
On April 23, 1996, petitioner filed her certificate of candidacy for the position of Chairman, Sangguniang Kabataan,
Barangay San Lorenzo, Municipality of Bangui, Province of Ilocos Norte. In a letter dated April 23, 1996, respondent Election
Officer Dionisio F. Rios, per advice of Provincial Election Supervisor Noli Pipo, [4] disapproved petitioner's certificate of
candidacy again due to her age.[5] Petitioner, however, appealed to COMELEC Regional Director Filemon A. Asperin who set
aside the order of respondents and allowed petitioner to run.[6]
On May 2, 1996, respondent Rios issued a memorandum to petitioner informing her of her ineligibility and giving her 24
hours to explain why her certificate of candidacy should not be disapproved. [7] Earlier and without the knowledge of the
COMELEC officials, private respondent Florencio G. Sales, Jr., a rival candidate for Chairman of the Sangguniang Kabataan,
filed with the COMELEC en banc a "Petition of Denial and/or Cancellation of Certificate of Candidacy" against petitioner
Garvida for falsely representing her age qualification in her certificate of candidacy. The petition was sent by facsimile[8] and
registered mail on April 29, 1996 to the Commission on Elections National Office, Manila.
On May 2, 1996, the same day respondent Rios issued the memorandum to petitioner, the COMELEC en banc issued an
order directing the Board of Election Tellers and Board of Canvassers of Barangay San Lorenzo to suspend the proclamation
of petitioner in the event she won in the election. The order reads as follows:
"Acting on the Fax "Petition for Denial And/Or Cancellation of Certificate of Candidacy" by petitioner Florencio G.
Sales, Jr. against Lynette G. Garvida, received on April 29, 1996, the pertinent allegations of which reads:
xxx

5. That the said respondent is disqualified to become a voter and a candidate for the SK for the reason that she will be more
than twenty-one (21) years of age on May 6, 1996; that she was born on June 11, 1974 as can be gleaned from her birth
certificate, a copy of which is hereto attached and marked as Annex "A";

6. That in filing her certificate of candidacy as candidate for SK of Bgy. San Lorenzo, Bangui, Ilocos Norte, she made material
representation which is false and as such, she is disqualified; that her certificate of candidacy should not be given due course
and that said candidacy must be cancelled;

x x x."
the Commission, it appearing that the petition is meritorious, hereby DIRECTS the Board of Election Tellers/Board of
Canvassers of Barangay San Lorenzo, Bangui, Ilocos Norte, to suspend the proclamation of Lynette G. Garvida in
the event she garners the highest number of votes for the position of Sangguniang Kabataan [sic].
Meantime, petitioner is hereby required to submit immediately ten (10) copies of his petition and to pay the filing and
legal research fees in the amount of P510.00.
SO ORDERED."[9]
On May 6, 1996, election day, petitioner garnered 78 votes as against private respondent's votes of 76. [10] In accordance
with the May 2, 1996 order of the COMELEC en banc, the Board of Election Tellers did not proclaim petitioner as the
winner. Hence, the instant petition for certiorari was filed on May 27, 1996.
On June 2, 1996, however, the Board of Election Tellers proclaimed petitioner the winner for the position of SK chairman,
Barangay San Lorenzo, Bangui, Ilocos Norte.[11] The proclamation was "without prejudice to any further action by the
Commission on Elections or any other interested party."[12] On July 5, 1996, petitioner ran in the Pambayang Pederasyon ng
mga Sangguniang Kabataan for the municipality of Bangui, Ilocos Norte. She won as Auditor and was proclaimed one of the
elected officials of the Pederasyon.[13]
Petitioner raises two (2) significant issues: the first concerns the jurisdiction of the COMELEC en banc to act on the
petition to deny or cancel her certificate of candidacy; the second, the cancellation of her certificate of candidacy on the
ground that she has exceeded the age requirement to run as an elective official of the SK.
I
Section 532 (a) of the Local Government Code of 1991 provides that the conduct of the SK elections is under the
supervision of the COMELEC and shall be governed by the Omnibus Election Code.[14] The Omnibus Election Code, in
Section 78, Article IX, governs the procedure to deny due course to or cancel a certificate of candidacy, viz:
"Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. -- A verified petition seeking to deny
due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any
material representation contained therein as required under Section 74 hereof is false. The petition may be filed at
any time not later than twenty-five days from the time of filing of the certificate of candidacy and shall be decided,
after due notice and hearing, not later than fifteen days before election."
In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition to deny due course to or cancel a
certificate of candidacy for an elective office may be filed with the Law Department of the COMELEC on the ground that the
candidate has made a false material representation in his certificate. The petition may be heard and evidence received by any
official designated by the COMELEC after which the case shall be decided by the COMELEC itself. [15]
Under the same Rules of Procedure, jurisdiction over a petition to cancel a certificate of candidacy lies with the
COMELEC sitting in Division, not en banc. Cases before a Division may only be entertained by the COMELEC en banc when
the required number of votes to reach a decision, resolution, order or ruling is not obtained in the Division. Moreover, only
motions to reconsider decisions, resolutions, orders or rulings of the COMELEC in Division are resolved by the COMELEC en
banc.[16] It is therefore the COMELEC sitting in Divisions that can hear and decide election cases. This is clear from Section 3
of the said Rules thus:
"Sec. 3. The Commission Sitting in Divisions. -- The Commission shall sit in two (2) Divisions to hear and decide
protests or petitions in ordinary actions, special actions, special cases, provisional remedies, contempt and special
proceedings except in accreditation of citizens' arms of the Commission." [17]
In the instant case, the COMELEC en banc did not refer the case to any of its Divisions upon receipt of the petition. It
therefore acted without jurisdiction or with grave abuse of discretion when it entertained the petition and issued the order of
May 2, 1996.[18]
II
The COMELEC en banc also erred when it failed to note that the petition itself did not comply with the formal
requirements of pleadings under the COMELEC Rules of Procedure.These requirements are:
"Sec. 1. Filing of Pleadings. -- Every pleading, motion and other papers must be filed in ten (10) legible
copies. However, when there is more than one respondent or protestee, the petitioner or protestant must file
additional number of copies of the petition or protest as there are additional respondents or protestees.
Sec. 2. How Filed. -- The documents referred to in the immediately preceding section must be filed directly with the
proper Clerk of Court of the Commission personally, or, unless otherwise provided in these Rules, by registered
mail. In the latter case, the date of mailing is the date of filing and the requirement as to the number of copies must
be complied with.
Sec. 3. Form of Pleadings, etc. -- (a) All pleadings allowed by these Rules shall be printed, mimeographed or
typewritten on legal size bond paper and shall be in English or Filipino.
x x x."
Every pleading before the COMELEC must be printed, mimeographed or typewritten in legal size bond paper and filed in at
least ten (10) legible copies. Pleadings must be filed directly with the proper Clerk of Court of the COMELEC personally, or, by
registered mail.
In the instant case, the subject petition was not in proper form. Only two (2) copies of the petition were filed with the
COMELEC.[19] Also, the COMELEC en banc issued its Resolution on the basis of the petition transmitted by facsimile, not by
registered mail.
A facsimile or fax transmission is a process involving the transmission and reproduction of printed and graphic matter by
scanning an original copy, one elemental area at a time, and representing the shade or tone of each area by a specified
amount of electric current.[20] The current is transmitted as a signal over regular telephone lines or via microwave relay and is
used by the receiver to reproduce an image of the elemental area in the proper position and the correct shade. [21] The receiver
is equipped with a stylus or other device that produces a printed record on paper referred to as a facsimile.[22]
Filing a pleading by facsimile transmission is not sanctioned by the COMELEC Rules of Procedure, much less by the
Rules of Court. A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy preserving all the marks of an
original.[23]
Without the original, there is no way of determining on its face whether the facsimile pleading is genuine and authentic
and was originally signed by the party and his counsel. It may, in fact, be a sham pleading. The uncertainty of the authenticity
of a facsimile pleading should have restrained the COMELEC en banc from acting on the petition and issuing the questioned
order. The COMELEC en banc should have waited until it received the petition filed by registered mail.
III
To write finis to the case at bar, we shall now resolve the issue of petitioner's age.
The Katipunan ng Kabataan was originally created by Presidential Decree No. 684 in 1975 as the Kabataang Barangay,
a barangay youth organization composed of all residents of the barangay who were at least 15 years but less than 18 years of
age.[24]
The Kabataang Barangay sought to provide its members a medium to express their views and opinions and participate in
issues of transcendental importance.[25] Its affairs were administered by a barangay youth chairman together with six
barangay youth leaders who were actual residents of the barangay and were at least 15 years but less than 18 years of
age.[26]In 1983, Batas Pambansa Blg. 337, then the Local Government Code, raised the maximum age of the Kabataang
Barangay members from "less than 18 years of age" to "not more than 21 years of age."
The Local Government Code of 1991 changed the Kabataang Barangay into the Katipunan ng Kabataan. It, however,
retained the age limit of the members laid down in B.P. 337 at 15 but not more than 21 years old. [27] The affairs of the
Katipunan ng Kabataan are administered by the Sangguniang Kabataan (SK) composed of a chairman and seven (7)
members who are elected by the Katipunan ng Kabataan.[28]
The chairman automatically becomes ex-officio member of the Sangguniang Barangay.[29] A member of the SK
holds office for a term of three (3) years, unless sooner removed for cause, or becomes permanently incapacitated, dies or
resigns from office.[30]
Membership in the Katipunan ng Kabataan is subject to specific qualifications laid down by the Local Government Code
of 1991, viz:
"Sec. 424. Katipunan ng Kabataan. -- The katipunan ng kabataan shall be composed of all citizens of the Philippines
actually residing in the barangay for at least six (6) months, who are fifteen (15) but not more than twenty-one (21)
years of age, and who are duly registered in the list of the sangguniang kabataan or in the official barangay list in the
custody of the barangay secretary."
A member of the Katipunan ng Kabataan may become a candidate for the Sangguniang Kabataan if he possesses the
following qualifications:
"Sec. 428. Qualifications. -- An elective official of the sangguniang kabataan must be a citizen of the Philippines, a
qualified voter of the katipunan ng kabataan, a resident of the barangay for at least one (1) year immediately prior to
election, at least fifteen (15) years but not more than twenty-one (21) years of age on the day of his election, able to
read and write Filipino, English, or the local dialect, and must not have been convicted of any crime involving moral
turpitude."
Under Section 424 of the Local Government Code, a member of the Katipunan ng Kabataan must be: (a) a Filipino
citizen; (b) an actual resident of the barangay for at least six months; (c) 15 but not more than 21 years of age; and (d) duly
registered in the list of the Sangguniang Kabataan or in the official barangay list. Section 428 of the Code requires that an
elective official of the Sangguniang Kabataan must be: (a) a Filipino citizen; (b) a qualified voter in the Katipunan ng
Kabataan; (c) a resident of the barangay at least one (1) year immediately preceding the election; (d) at least 15 years but not
more than 21 years of age on the day of his election; (e) able to read and write; and (f) must not have been convicted of any
crime involving moral turpitude.
For the May 6, 1996 SK elections, the COMELEC interpreted Sections 424 and 428 of the Local Government Code of
1991 in Resolution No. 2824 and defined how a member of the Katipunan ng Kabataan becomes a qualified voter and an
elective official. Thus:
"Sec. 3. Qualifications of a voter. -- To be qualified to register as a voter in the SK elections, a person must be:

a) a citizen of the Philippines;

b) fifteen (15) but not more than twenty-one (21) years of age on election day, that is, he must have been born between May
6, 1975 and May 6, 1981, inclusive; and

c) a resident of the Philippines for at least one (1) year and actually residing in the barangay wherein he proposes to vote for
at least six (6) months immediately preceding the elections."

xxx
"Sec. 6. Qualifications of elective members. -- An elective official of the SK must be:

a) a qualified voter;

b) a resident in the barangay for at least one (1) year immediately prior to the elections; and

c) able to read and write Filipino or any Philippine language or dialect or English.

Cases involving the eligibility or qualification of candidates shall be decided by the city/municipal Election Officer
(EO) whose decision shall be final."
A member of the Katipunan ng Kabataan may be a qualified voter in the May 6, 1996 SK elections if he is: (a) a Filipino
citizen; (b) 15 but not more than 21 years of age on election day, i.e., the voter must be born between May 6, 1975 and May
6, 1981, inclusive; and (c) a resident of the Philippines for at least one (1) year and an actual resident of the barangay at least
six (6) months immediately preceding the elections. A candidate for the SK must: (a) possess the foregoing qualifications of a
voter; (b) be a resident in the barangay at least one (1) year immediately preceding the elections; and (c) able to read and
write.
Except for the question of age, petitioner has all the qualifications of a member and voter in the Katipunan ng Kabataan
and a candidate for the Sangguniang Kabataan. Petitioner's age is admittedly beyond the limit set in Section 3 [b] of
COMELEC Resolution No. 2824. Petitioner, however, argues that Section 3 [b] of Resolution No. 2824 is unlawful, ultra vires
and beyond the scope of Sections 424 and 428 of the Local Government Code of 1991. She contends that the Code itself
does not provide that the voter must be exactly 21 years of age on election day. She urges that so long as she did not turn
twenty-two (22) years old, she was still twenty-one years of age on election day and therefore qualified as a member and
voter in the Katipunan ng Kabataan and as candidate for the SK elections.
A closer look at the Local Government Code will reveal a distinction between the maximum age of a member in the
Katipunan ng Kabataan and the maximum age of an elective SK official. Section 424 of the Code sets a member's maximum
age at 21 years only. There is no further provision as to when the member shall have turned 21 years of age. On the other
hand, Section 428 provides that the maximum age of an elective SK official is 21 years old "on the day of his election." The
addition of the phrase "on the day of his election" is an additional qualification. The member may be more than 21 years of
age on election day or on the day he registers as member of the Katipunan ng Kabataan. The elective official, however, must
not be more than 21 years old on the day of election. The distinction is understandable considering that the Code itself
provides more qualifications for an elective SK official than for a member of the Katipunan ng Kabataan. Dissimilum dissimilis
est ratio.[31] The courts may distinguish when there are facts and circumstances showing that the legislature intended a
distinction or qualification.[32]
The qualification that a voter in the SK elections must not be more than 21 years of age on the day of the election is not
provided in Section 424 of the Local Government Code of 1991.In fact the term "qualified voter" appears only in COMELEC
Resolution No. 2824.[33] Since a "qualified voter" is not necessarily an elective official, then it may be assumed that a "qualified
voter" is a "member of the Katipunan ng Kabataan." Section 424 of the Code does not provide that the maximum age of a
member of the Katipunan ng Kabataan is determined on the day of the election. Section 3 [b] of COMELEC Resolution No.
2824 is therefore ultra vires insofar as it sets the age limit of a voter for the SK elections at exactly 21 years on the day of the
election.
The provision that an elective official of the SK should not be more than 21 years of age on the day of his election is very
clear. The Local Government Code speaks of years, not months nor days. When the law speaks of years, it is understood that
years are of 365 days each.[34] One born on the first day of the year is consequently deemed to be one year old on the 365th
day after his birth -- the last day of the year.[35] In computing years, the first year is reached after completing the first 365
days. After the first 365th day, the first day of the second 365-day cycle begins. On the 365th day of the second cycle, the
person turns two years old. This cycle goes on and on in a lifetime. A person turns 21 years old on the 365th day of his 21st
365-day cycle. This means on his 21st birthday, he has completed the entire span of 21 365-day cycles. After this birthday,
the 365-day cycle for his 22nd year begins. The day after the 365th day is the first day of the next 365-day cycle and he turns
22 years old on the 365th day.
The phrase "not more than 21 years of age" means not over 21 years, not beyond 21 years. It means 21 365-day
cycles. It does not mean 21 years and one or some days or a fraction of a year because that would be more than 21 365-day
cycles. "Not more than 21 years old" is not equivalent to "less than 22 years old," contrary to petitioner's claims. The law does
not state that the candidate be less than 22 years on election day.
In P.D. 684, the law that created the Kabataang Barangay, the age qualification of a barangay youth official was
expressly stated as "x x x at least fifteen years of age or over but less than eighteen x x x."[36] This provision clearly states that
the youth official must be at least 15 years old and may be 17 years and a fraction of a year but should not reach the age of
eighteen years. When the Local Government Code increased the age limit of members of the youth organization to 21 years,
it did not reenact the provision in such a way as to make the youth "at least 15 but less than 22 years old." If the intention of
the Code's framers was to include citizens less than 22 years old, they should have stated so expressly instead of leaving the
matter open to confusion and doubt.[37]
Former Senator Aquilino Q. Pimentel, the sponsor and principal author of the Local Government Code of 1991 declared
that one of the reasons why the Katipunan ng Kabataan was created and the Kabataang Barangay discontinued was because
most, if not all, Kabataang Barangay leaders were already over 21 years of age by the time President Aquino assumed
power.[38] They were not the "youth" anymore. The Local Government Code of 1991 fixed the maximum age limit at not more
than 21 years[39] and the only exception is in the second paragraph of Section 423 which reads:

"Sec. 423. Creation and Election. -- a) x x x;

b) A sangguniang kabataan official who, during his term of office, shall have passed the age of twenty-one (21)
years shall be allowed to serve the remaining portion of the term for which he was elected."
The general rule is that an elective official of the Sangguniang Kabataan must not be more than 21 years of age on
the day of his election. The only exception is when the official reaches the age of 21 years during his incumbency. Section
423 [b] of the Code allows him to serve the remaining portion of the term for which he was elected. According to Senator
Pimentel, the youth leader must have "been elected prior to his 21st birthday." [40] Conversely, the SK official must not have
turned 21 years old before his election. Reading Section 423 [b] together with Section 428 of the Code, the latest date at
which an SK elective official turns 21 years old is on the day of his election. The maximum age of a youth official must
therefore be exactly 21 years on election day. Section 3 [b] in relation to Section 6 [a] of COMELEC Resolution No. 2824 is
not ultra vires insofar as it fixes the maximum age of an elective SK official on the day of his election.
In the case at bar, petitioner was born on June 11, 1974. On March 16, 1996, the day she registered as voter for the May
6, 1996 SK elections, petitioner was twenty-one (21) years and nine (9) months old. On the day of the elections, she was 21
years, 11 months and 5 days old. When she assumed office on June 1, 1996, she was 21 years, 11 months and 20 days old
and was merely ten (10) days away from turning 22 years old. Petitioner may have qualified as a member of the Katipunan ng
Kabataan but definitely, petitioner was over the age limit for elective SK officials set by Section 428 of the Local Government
Code and Sections 3 [b] and 6 of Comelec Resolution No. 2824. She was ineligible to run as candidate for the May 6, 1996
Sangguniang Kabataan elections.
The requirement that a candidate possess the age qualification is founded on public policy and if he lacks the age on the
day of the election, he can be declared ineligible.[41]
In the same vein, if the candidate is over the maximum age limit on the day of the election, he is ineligible. The fact that
the candidate was elected will not make the age requirement directory, nor will it validate his election. [42] The will of the people
as expressed through the ballot cannot cure the vice of ineligibility.[43]
The ineligibility of petitioner does not entitle private respondent, the candidate who obtained the highest number of votes
in the May 6, 1996 elections, to be declared elected. [44] A defeated candidate cannot be deemed elected to the
office.[45] Moreover, despite his claims,[46] private respondent has failed to prove that the electorate themselves actually knew
of petitioner's ineligibility and that they maliciously voted for her with the intention of misapplying their franchises and throwing
away their votes for the benefit of her rival candidate. [47]
Neither can this Court order that pursuant to Section 435 of the Local Government Code petitioner should be succeeded
by the Sangguniang Kabataan member who obtained the next highest number of votes in the May 6, 1996
elections.[48] Section 435 applies when a Sangguniang Kabataan Chairman "refuses to assume office, fails to qualify, [49] is
convicted of a felony, voluntarily resigns, dies, is permanently incapacitated, is removed from office, or has been absent
without leave for more than three (3) consecutive months."
The question of the age qualification is a question of eligibility. [50]
Being "eligible" means being "legally qualified; capable of being legally chosen."[51]
Ineligibility, on the other hand, refers to the lack of the qualifications prescribed in the Constitution or the statutes for
holding public office.[52] Ineligibility is not one of the grounds enumerated in Section 435 for succession of the SK Chairman.
To avoid a hiatus in the office of SK Chairman, the Court deems it necessary to order that the vacancy be filled by the SK
member chosen by the incumbent SK members of Barangay San Lorenzo, Bangui, Ilocos Norte by simple majority from
among themselves. The member chosen shall assume the office of SK Chairman for the unexpired portion of the term, and
shall discharge the powers and duties, and enjoy the rights and privileges appurtenant to said office.
IN VIEW WHEREOF, the petition is dismissed and petitioner Lynette G. Garvida is declared ineligible for being over the
age qualification for candidacy in the May 6, 1996 elections of the Sangguniang Kabataan, and is ordered to vacate her
position as Chairman of the Sangguniang Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Sangguniang
Kabataan member voted by simple majority by and from among the incumbent Sangguniang Kabataan members of Barangay
San Lorenzo, Bangui, Ilocos Norte shall assume the office ofSangguniang Kabataan Chairman of Barangay San Lorenzo,
Bangui, Ilocos Norte for the unexpired portion of the term.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Francisco,
Panganiban, and Torres, Jr., JJ., concur.
Hermosisima, J., on leave.

[1] Annex "D" to Comment of Provincial Election Supervisor Noli Pipo, Rollo, pp. 57-58; Annex "A" to Petition, Rollo, pp. 15-16
[2] Annex "3" to the Comment for the Private Respondent, Rollo, pp. 109-112.2
[3] The judge was then boarding in the house of petitioner (Comment for the Private Respondent, p. 2, Rollo, p. 89).
[4] Annex "F" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, pp. 61-62.
[5] Annex "C" to the Petition, Rollo p. 18; Annex "G" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, p. 63.5
[6] Annex "D" to the Petition, Rollo, p. 19; Annex "H" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, p. 64.
[7] Annex "I" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, p. 66.
[8] Through the PT & T.
[9] Annex "L" to the Petition, Rollo, pp. 71-73
[10] Comment of Private Respondent Florencio Sales, Jr., p. 14, Rollo, p. 101.
[11] Comment of Provincial Election Supervisor Noli Pipo, par. 18, Rollo, p. 41.
[12] Annex "R" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, p. 82.
[13] Annex "S" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, p. 83.
[14] Section 532 (a) of the Code (B.P. 881) was amended by R.A. 7808 which in pertinent part reads:
"Sec. 1. x x x
The conduct of the sangguniang kabataan elections shall be under the supervision of the Commission on Elections.
The Omnibus Election Code shall govern the elections of the sangguniang kabataan."
[15] Rule 23 provides:
"Section 1. Ground for Denial of Certificate of Candidacy. -- A petition to deny due course to or cancel a certificate of
candidacy for any elective office may be filed with the Law Department of the Commission by any citizen of voting age or a
duly registered political party, organization, or coalition of political parties on the exclusive ground that any material
representation contained therein as required by law is false.
Section 2. Period to File Petition. -- The petition must be filed within five (5) days following the last day for the filing of
certificates of candidacy.
Section 3. Summary Procedure. -- The petition shall be heard summarily after due notice.
Section 4. Delegation of Reception of Evidence. -- The Commission may designate any of its officials who are members of the
Philippine Bar to hear the case and to receive evidence."
[16] Section 5 [b] and [c], Rule 3, COMELEC Rules of Procedure provides:
"Sec. 5. x x x
(b)When sitting in Divisions, two (2) Members of a Division shall constitute a quorum to transact business. The concurrence of
at least two (2) Members of a Division shall be necessary to reach a decision, resolution, order or ruling. If this required
number is not obtained, the case shall be automatically elevated to the Commission en banc for decision or resolution.
(c)Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the Commission en banc
except motions on interlocutory orders of the Division which shall be resolved by the Division which issued the order."
[17] See also Section 3, Article IX [C] of the Constitution.
[18] Sarmiento v. Commission On Elections, 212 SCRA 307, 131-134 [1992].
[19]
One copy was filed by registered mail and the other by facsimile. Third and fourth copies were sent by registered mail to
petitioner Garvida and the COMELEC officer (Annex 5-B to the Comment of Private Respondent, Rollo, p. 116).
[20] Facsimile Transmission," The New Encyclopaedia Britannica, p. 651, vol. 4, 15th ed. [1992].
[21] Id.
[22]
Facsimile," The New Webster's International Encyclopedia, p. 375 [1996]; "Facsimile," Webster's Third New International
Dictionary, p. 813 [1971].
[23] Black's Law Dictionary, p. 531, 5th ed. [1979].
[24] Sections 1 and 4, P.D. 684.
[25]
Whereas clauses, Sec. 1, P.D. 684; Mercado v. Board of Elections Supervisors of Ibaan, Batangas, 243 SCRA 422, 426
[1995].
[26] Section 2, P.D. 684.
[27] Section 423, Chapter 8, Title I, Bk. III, R.A. 7160.
[28] Sections 423, 428, Chapter 8, Title I, Bk. III, R.A. 7160.
[29] Section 430, Id.
[30] Section 429, Id.
[31] Of things dissimilar, the rule is dissimilar.
[32] Agpalo, Statutory Construction, pp. 142-143 [1990].
[33]
The Local Government Code speaks of the requirements for membership in the Katipunan ng Kabataan, not the
qualifications of a voter.
[34] Civil Code, Article 13; National Marketing Corporation v. Tecson, 29 SCRA 70, 74 [1969].
[35] Erwin v. Benton, 87 S.W. 291, 294; 120 Ky. 536 [1905].
[36] Section 2, P.D. 684.
[37] Feliciano v. Aquino, 102 Phil. 1159-1160 [1957].
[38] Pimentel, A.Q., The Local Government Code of 1991, The Key to National Development, p. 440 [1993].
[39]
It is worth noting that it is only in the case of SK candidates that the Local Government Code sets a maximum age limit. It
sets a minimum age for the rest of the elective officials, e.g., members of the sangguniang barangay, sangguniang
panglungsod or bayan, sangguniang panlalawigan, mayor and governor (Sec. 39, Chapter I, Title II, Bk. I, Local Government
Code of 1991).
[40] Pimentel, supra, at 440.
[41] Castaneda v. Yap, 48 O.G. 3364, 3366 [1952].
[42] Sanchez v. del Rosario, 1 SCRA 1102, 1106 [1961]; Feliciano v. Aquino, Jr., 102 Phil. 1159, 1160 [1957].
[43] Frivaldo v. Commission on Elections, 174 SCRA 245, 255 [1989].
[44]
Aquino v. Commission on Elections, 248 SCRA 400, 423, 429 [1995]; Labo, Jr. v. Commission on elections, 211 SCRA
297, 311 [1992]; Sanchez v. del Rosario, supra, at 1105.
[45] Id.
[46] Comment of Private Respondent Florencio Sales, Jr., pp. 14-15, Rollo, 101-102.
[47] cf. Labo, Jr. v. Commission on Elections, supra, at 311.
[48] Section 435 of the Local Government Code provides:
"Sec. 435. Succession and Filling of Vacancies. -- (a) In case a sangguniang kabataan chairman refuses to assume office,
fails to qualify, is convicted of a felony, voluntarily resigns, dies, is permanently incapacitated, is removed from office, or has
been absent without leave for more than three (3) consecutive months, the sangguniang kabataan member who obtained the
next highest number of votes in the election immediately preceding shall assume the office of the chairman for the unexpired
portion of the term, and shall discharge the powers and duties, and enjoy the rights and privileges appurtenant to the office. In
case the said member refuses to assume the position or fails to qualify, the sangguniang kabataan member obtaining the next
highest number of votes shall assume the position of the chairman for the unexpired portion of the term.
x x x."
[49]
"Failure to qualify" means a public officer's or employee's failure to take the oath and/or give the bond required by law to
signify his acceptance of the office and the undertaking to execute the trust confided in him (Martin and Martin, Administrative
Law, Law of Public Officers and Election Law, p. 140 [1983]; Mechem, A Treatise on the Law of Public Offices and Officers,
Sec. 253, p. 162; Words and Phrases, "Failure to Qualify," citing State v. Boyd, 48 N.W. 739, 751, 31 Neb. 682).
[50] Gaerlan v. Catubig, 17 SCRA 376, 378 [1966]; Feliciano v. Aquino, Jr., supra.
[51] People v. Yanza, 107 Phil. 888, 890 [1960].
[52]
Separate Opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on Elections, 248 SCRA 300, 398
[1995].