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[ GR No.

93867, Dec 18, 1990 ]

SIXTO S. BRILLANTES v. HAYDEE B. YORAC +

DECISION

270 Phil. 466

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.
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.
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 Commissions 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 Commissions 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.
SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Gancayco, Padilla, Bidin, Griño-Aquino,
Medialdea,and Regalado, JJ., concur.
Feliciano, J., on leave.
Sarmiento, J., no part.
[G.R. No. 133486. January 28, 2000]

ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON ELECTIONS, respondent.

DECISION

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. 98-1419[1] 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 x x x and to
make [an] exit survey of the x x x 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 x x x 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 Petition[5] 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 Pano, the Court had occasion to reiterate that it "also has the duty to formulate
guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of
educating bench and bar on the extent of protection given by constitutional guarantees."[7] Since the fundamental
freedoms of speech and of the press are being invoked here, we have resolved to settle, for the guidance of posterity,
whether they likewise protect the holding of exit polls and the dissemination of data derived therefrom.

The solicitor general further contends that the Petition should be dismissed for petitioner's failure to exhaust available
remedies before the issuing forum, 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 for the May 11, 1998 elections. Moreover, not only is time of the essence; the Petition involves transcendental
constitutional issues. Direct resort to this Court through a special civil action for certiorari is therefore justified.

Main Issue: Validity of Conducting Exit Polls

An exit poll is a species of electoral survey conducted by 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 of 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. x x x [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 matter 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.[20] They
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. Fernandez[22] this Court had occasion to discuss two theoretical tests 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. x x x"[23]

"The 'dangerous tendency' rule, on the other hand, x x x 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. Fugoso[25] 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. Comelec[30] and, more recently, in Iglesia
ni Cristo v. MTRCB.[31] In 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.[33] The 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] x x x 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 x x x 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' answers to the survey questions
will forever remain unknown and unexplored. Unless the ban is restrained, candidates, researchers, social scientists
and the electorate in general would be deprived of studies on the impact of current events and of election-day and
other factors on voters' choices.

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 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 to be 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.
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.
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.
[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.
[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.
[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.
[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.

DECISION
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 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. 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 posts 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 RA 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 RA 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. Challenge 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 x x x x

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 x x x x

The claim of Canicosa that he was credited with less votes than he actually received and that the control
data 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. - x x x x The watchers x x x shall have the right to witness and inform
themselves of the proceedings of the board of election inspectors x x x 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 certificate as to the filing of such protest
and/or of the resolution thereon x x x 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 x x x x

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

Sec. 212. Election returns. - x x x x 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. Certification 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 x x x x

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 x x x x

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 Elections [6]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 tothe 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 administration of all
laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections x x x x
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 questionsrelative 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 he 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 Elections [11] thus 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 thestatement 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 x x x x (h) The appeal shall be heard and decided by the Commission en banc.

In Tatlonghari v. Commission on Elections [12] 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 v. Lugay [13] 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.
G.R. No. 112093 October 4, 1994

ANTONIO V.A. TAN, petitioner,


vs.
COMMISSION ON ELECTIONS, RUSTICO T. ILAGAN, Regional Election Director, Commission on
Elections, Region XI, Davao City, and SENFORIANO B. ALTERADO, respondents.

Leonido C. Delante for petitioner.

Eduardo C. de Vera for Atty. S.B. Alterado.

VITUG, J.:

On 10 May 1992, petitioner, as incumbent city Prosecutor of Davao City, was designated by the Commission on
Elections ("COMELEC") as
Vice-Chairman of the City Board of Canvassers of Davao City for the 11th May 1992 synchronized national and
local elections conformably with the provisions of Section 20(a) of Republic Act No. 6646 and Section 221(b) of
the Omnibus Election Code (B.P. Blg. 881).

On the basis of the votes canvassed by the Board of Canvassers, Manuel Garcia was proclaimed the winning
candidate for a congressional seat to represent the Second District of Davao City in the House of
Representatives.

Private respondent Alterado, himself a candidate for the position, filed a number of cases questioning the validity
of the proclamation of Manuel Garcia and accusing the members of the City Board of Canvassers of "unlawful,
erroneous, incomplete and irregular canvass." Meanwhile, the electoral protest of private respondent Alterado
was dismissed by the House of Representatives Electoral Tribunal ("HRET"). The criminal complaint for
"Falsification of Public Documents and Violation of the Anti-Graft and Corrupt Practices Act" before the Office of
the Ombudsman was likewise dismissed on the ground of lack of criminal intent on the part of therein
respondents. Still pending is an administrative charge, the case now before us, instituted in the COMELEC
against the City Board of Canvassers, including herein petitioner, for "Misconduct, Neglect of Duty, Gross
Incompetence and Acts Inimical to the Service."

Petitioner moved to dismiss the administrative complaint against him for alleged lack of jurisdiction of the
COMELEC thereover, he being under the Executive Department of the government. The COMELEC denied
petitioner's motion to dismiss.

Hence, the instant petition.

Petitioner contends that the COMELEC has committed grave abuse of discretion and acted without jurisdiction in
continuing to take action on the administrative case. He argues that —

1) Petitioner is the City Prosecutor of Davao City. His office belongs to the executive branch of
the government, more particularly to the Department of Justice. As such, he is under the
administrative jurisdiction of the said department and not of respondent COMELEC.

2) The Civil Service Law provides that department heads "shall have jurisdiction to investigate
and decide matters involving disciplinary action against officers under their jurisdiction" (Section
47[b], P.D. 807).

3) Section 2, Article IX of the 1987 Constitution which authorizes respondent COMELEC to


deputize public officers belonging to the executive department is for the purpose of insuring free,
orderly and honest elections. It does not include and comprehend administrative disciplinary
jurisdiction over officials belonging to the executive branch of government. That jurisdiction over
deputized executive officers cannot be deemed to include such powers as would allow
encroachment into the domain of the executive branch under guise of administering laws relative
to elections.
4) Section 38 of P.D. 807 cited by respondents COMELEC and Ilagan as basis for their authority
to investigate petitioner (Annex G) offers no help to said respondents. The said provision merely
lays down the procedure for administrative cases against non-presidential appointees. Petitioner
here, the city prosecutor for Davao City is a presidential appointee.1

We find ourselves being unable to sustain the petition.

The COMELEC's authority under Section 2(6-8), Article IX, of the Constitution is virtually all-encompassing when
it comes to election matters. In respect particularly to sanctions against election offenses, we quote:

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

xxx xxx xxx

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

xxx xxx xxx

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

Additionally, Section 52, Article VII, of the Omnibus Election Code, provides:

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 administration of all laws relative to the conduct of elections for the purpose
of insuring free, orderly and honest elections, and shall:

a. Exercise 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. In addition, it may authorize CMP Cadets eighteen years of age and above to act as its
deputies for the purpose of enforcing its orders.

The Commission may relieve any officer or employee referred to in the preceding paragraph from
the performance of his duties relating to electoral processes who violates the election law or fails
to comply with its instructions, orders, decisions or rulings, and appoint his substitute. Upon
recommendation of the Commission, the corresponding proper authority shall suspend or
remove from office any or all of such officers or employees who may, after due process, be found
guilty of such violation or failure.

It should be stressed that the administrative case against petitioner, taken cognizance of by, and still pending
with, the COMELEC, is in relation to the performance of his duties as an election canvasser and not as a city
prosecutor. The COMELEC's mandate includes its authority to exercise 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. In order to help ensure that such duly deputized officials and employees of government
carry out their respective assigned tasks, the law has also provided than upon the COMELEC's
recommendation, the corresponding proper authority (the Secretary of the Department of Justice in the case at
bar) shall take appropriate action, either to suspend or remove from office the officer or employee who may, after
due process, be found guilty of violation of election laws or failure to comply with instructions, orders, decision or
rulings of the COMELEC.

Unavoidably, the COMELEC, prior to making its recommendation, must first satisfy itself that there indeed has
been an infraction of the law, or of its directives issued conformably therewith, by the person administratively
charged. It also stands to reason that it is the COMELEC, being in the best position to assess how its deputized
officials and employees perform or have performed in their duties, that should conduct the administrative inquiry.
To say that the COMELEC is without jurisdiction to look into charges of election offenses committed by officials
and employees of government outside the regular employ of the COMELEC would be to unduly deny to it the
proper and sound exercise of such recommendatory power and, perhaps more than that, even a possible denial
of due process to the official or employee concerned.

Observe, nevertheless, that the COMELEC merely may issue a recommendation for disciplinary action but that it
is the executive department to which the charged official or employee belongs which has the ultimate authority to
impose the disciplinary penalty. The law then does not detract from, but is congruent with, the general
administrative authority of the department of government concerned over its own personnel.

Petitioner's assertion that private respondent Alterado has resorted to forum-shopping is unacceptable. The
investigation then being conducted by the Ombudsman on the criminal case for falsification and violation of the
Anti-Graft and Corrupt Practices Act, on the one hand, and the inquiry into the administrative charges by the
COMELEC, on the other hand, are entirely independent proceedings. Neither would the results in one conclude
the other. Thus, an absolution from a criminal charge is not a bar to an administrative prosecution (Office of the
Court Administrator vs. Enriquez, 218
SCRA 1), or vice versa. So, also, the dismissal by the COMELEC of SPC Case No. 92-232 on the ground that
the case constituted an electoral protest within the jurisdiction of the HRET and not of the COMELEC (affirmed
by this Court in G.R. No. 106452) does not necessarily foreclosure the matter of possible liability, if warranted, of
those who might have improperly acted in the canvass of votes.

There are other issues, mainly factual, that are raised and averred to show petitioner's innocence from the
administrative charges. Petitioner's allegations may well be true but this petition at bench may not preempt the
determination of those factual matters yet to be passed upon in the pending administrative proceedings.

WHEREFORE, the instant petition is DISMISSED. No costs.

SO ORDERED.
[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.
[G.R. No. 135083. May 26, 1999]

ERNESTO S. MERCADO, petitioner, vs. EDUARDO BARRIOS MANZANO and the COMMISSION ON
ELECTIONS, respondents.

DECISION
MENDOZA, J.:

Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for vice mayor of the
City of Makati in the May 11, 1998 elections. The other one was Gabriel V. Daza III.The results of the election were as
follows:

Eduardo B. Manzano 103,853


Ernesto S. Mercado 100,894
Gabriel V. Daza III 54,275[1]

The proclamation of private respondent was suspended in view of a pending petition for disqualification filed by a
certain Ernesto Mamaril who alleged that private respondent was not a citizen of the Philippines but of the United States.
In its resolution, dated May 7, 1998,[2] the Second Division of the COMELEC granted the petition of Mamaril and
ordered the cancellation of the certificate of candidacy of private respondent on the ground that he is a dual citizen and,
under 40(d) of the Local Government Code, persons with dual citizenship are disqualified from running for any elective
position. The COMELECs Second Division said:

What is presented before the Commission is a petition for disqualification of Eduardo Barrios Manzano as candidate
for the office of Vice-Mayor of Makati City in the May 11, 1998 elections. The petition is based on the ground that the
respondent is an American citizen based on the record of the Bureau of Immigration and misrepresented himself as a
natural-born Filipino citizen.

In his answer to the petition filed on April 27, 1998, the respondent admitted that he is registered as a foreigner with
the Bureau of Immigration under Alien Certificate of Registration No. B-31632 and alleged that he is a Filipino citizen
because he was born in 1955 of a Filipino father and a Filipino mother. He was born in the United States, San
Francisco, California, on September 14, 1955, and is considered an American citizen under US Laws. But
notwithstanding his registration as an American citizen, he did not lose his Filipino citizenship.

Judging from the foregoing facts, it would appear that respondent Manzano is both a Filipino and a US citizen. In
other words, he holds dual citizenship.

The question presented is whether under our laws, he is disqualified from the position for which he filed his certificate
of candidacy. Is he eligible for the office he seeks to be elected?

Under Section 40(d) of the Local Government Code, those holding dual citizenship are disqualified from running for
any elective local position.

WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios Manzano DISQUALIFIED as
candidate for Vice-Mayor of Makati City.

On May 8, 1998, private respondent filed a motion for reconsideration.[3] The motion remained pending even until
after the election held on May 11, 1998.
Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the COMELEC, the board of
canvassers tabulated the votes cast for vice mayor of Makati City but suspended the proclamation of the winner.
On May 19, 1998, petitioner sought to intervene in the case for disqualification.[4] Petitioners motion was opposed
by private respondent.
The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc rendered its resolution. Voting
4 to 1, with one commissioner abstaining, the COMELEC en banc reversed the ruling of its Second Division and
declared private respondent qualified to run for vice mayor of the City of Makati in the May 11, 1998 elections. [5] The
pertinent portions of the resolution of the COMELEC en banc read:

As aforesaid, respondent Eduardo Barrios Manzano was born in San Francisco, California, U.S.A. He acquired US
citizenship by operation of the United States Constitution and laws under the principle of jus soli.

He was also a natural born Filipino citizen by operation of the 1935 Philippine Constitution, as his father and mother
were Filipinos at the time of his birth. At the age of six (6), his parents brought him to the Philippines using an
American passport as travel document. His parents also registered him as an alien with the Philippine Bureau of
Immigration. He was issued an alien certificate of registration. This, however, did not result in the loss of his
Philippine citizenship, as he did not renounce Philippine citizenship and did not take an oath of allegiance to the
United States.

It is an undisputed fact that when respondent attained the age of majority, he registered himself as a voter, and voted in
the elections of 1992, 1995 and 1998, which effectively renounced his US citizenship under American law. Under
Philippine law, he no longer had U.S. citizenship.

At the time of the May 11, 1998 elections, the resolution of the Second Division, adopted on May 7, 1998, was not yet
final. Respondent Manzano obtained the highest number of votes among the candidates for vice-mayor of Makati
City, garnering one hundred three thousand eight hundred fifty three (103,853) votes over his closest rival, Ernesto S.
Mercado, who obtained one hundred thousand eight hundred ninety four (100,894) votes, or a margin of two thousand
nine hundred fifty nine (2,959) votes. Gabriel Daza III obtained third place with fifty four thousand two hundred
seventy five (54,275) votes. In applying election laws, it would be far better to err in favor of the popular choice than
be embroiled in complex legal issues involving private international law which may well be settled before the highest
court (Cf. Frivaldo vs. Commission on Elections, 257 SCRA 727).

WHEREFORE, the Commission en banc hereby REVERSES the resolution of the Second Division, adopted on May
7, 1998, ordering the cancellation of the respondents certificate of candidacy.

We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a candidate for the position of vice-
mayor of Makati City in the May 11, 1998, elections.

ACCORDINGLY, the Commission directs the Makati City Board of Canvassers, upon proper notice to the parties, to
reconvene and proclaim the respondent Eduardo Luis Barrios Manzano as the winning candidate for vice-mayor of
Makati City.

Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on the evening of August 31, 1998,
proclaimed private respondent as vice mayor of the City of Makati.
This is a petition for certiorari seeking to set aside the aforesaid resolution of the COMELEC en banc and to declare
private respondent disqualified to hold the office of vice mayor of Makati City.Petitioner contends that

[T]he COMELEC en banc ERRED in holding that:

A. Under Philippine law, Manzano was no longer a U.S. citizen when he:

1. He renounced his U.S. citizenship when he attained the age of majority when he was already 37 years old; and,

2. He renounced his U.S. citizenship when he (merely) registered himself as a voter and voted in the elections of 1992,
1995 and 1998.

B. Manzano is qualified to run for and or hold the elective office of Vice-Mayor of the City of Makati;

C. At the time of the May 11, 1998 elections, the resolution of the Second Division adopted on 7 May 1998 was not
yet final so that, effectively, petitioner may not be declared the winner even assuming that Manzano is disqualified to
run for and hold the elective office of Vice-Mayor of the City of Makati.
We first consider the threshold procedural issue raised by private respondent Manzano whether petitioner Mercado
has personality to bring this suit considering that he was not an original party in the case for disqualification filed by
Ernesto Mamaril nor was petitioners motion for leave to intervene granted.

I. PETITIONER'S RIGHT TO BRING THIS SUIT

Private respondent cites the following provisions of Rule 8 of the Rules of Procedure of the COMELEC in support
of his claim that petitioner has no right to intervene and, therefore, cannot bring this suit to set aside the ruling denying
his motion for intervention:

Section 1. When proper and when may be permitted to intervene. Any person allowed to initiate an action or
proceeding may, before or during the trial of an action or proceeding, be permitted by the Commission, in its
discretion to intervene in such action or proceeding, if he has legal interest in the matter in litigation, or in the success
of either of the parties, or an interest against both, or when he is so situated as to be adversely affected by such action
or proceeding.

....

Section 3. Discretion of Commission. In allowing or disallowing a motion for intervention, the Commission or the
Division, in the exercise of its discretion, shall consider whether or not the intervention will unduly delay or prejudice
the adjudication of the rights of the original parties and whether or not the intervenors rights may be fully protected in
a separate action or proceeding.

Private respondent argues that petitioner has neither legal interest in the matter in litigation nor an interest to protect
because he is a defeated candidate for the vice-mayoralty post of Makati City [who] cannot be proclaimed as the Vice-
Mayor of Makati City even if the private respondent be ultimately disqualified by final and executory judgment.
The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the proceedings before the
COMELEC, there had already been a proclamation of the results of the election for the vice mayoralty contest for Makati
City, on the basis of which petitioner came out only second to private respondent. The fact, however, is that there had
been no proclamation at that time. Certainly, petitioner had, and still has, an interest in ousting private respondent from
the race at the time he sought to intervene. The rule in Labo v. COMELEC,[6] reiterated in several cases,[7] only applies
to cases in which the election of the respondent is contested, and the question is whether one who placed second to the
disqualified candidate may be declared the winner. In the present case, at the time petitioner filed a Motion for Leave to
File Intervention on May 20, 1998, there had been no proclamation of the winner, and petitioners purpose was precisely
to have private respondent disqualified from running for [an] elective local position under 40(d) of R.A. No. 7160. If
Ernesto Mamaril (who originally instituted the disqualification proceedings), a registered voter of Makati City, was
competent to bring the action, so was petitioner since the latter was a rival candidate for vice mayor of Makati City.
Nor is petitioners interest in the matter in litigation any less because he filed a motion for intervention only on May
20, 1998, after private respondent had been shown to have garnered the highest number of votes among the candidates
for vice mayor. That petitioner had a right to intervene at that stage of the proceedings for the disqualification against
private respondent is clear from 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, which
provides:

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 guilt is strong.

Under this provision, intervention may be allowed in proceedings for disqualification even after election if there
has yet been no final judgment rendered.
The failure of the COMELEC en banc to resolve petitioners motion for intervention was tantamount to a denial of
the motion, justifying petitioner in filing the instant petition for certiorari. As the COMELEC en banc instead decided
the merits of the case, the present petition properly deals not only with the denial of petitioners motion for intervention
but also with the substantive issues respecting private respondents alleged disqualification on the ground of dual
citizenship.
This brings us to the next question, namely, whether private respondent Manzano possesses dual citizenship and,
if so, whether he is disqualified from being a candidate for vice mayor of Makati City.

II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION

The disqualification of private respondent Manzano is being sought under 40 of the Local Government Code of
1991 (R.A. No. 7160), which declares as disqualified from running for any elective local position: . . . (d) Those with
dual citizenship. This provision is incorporated in the Charter of the City of Makati.[8]
Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides with him in this case,
contends that through 40(d) of the Local Government Code, Congress has command[ed] in explicit terms the ineligibility
of persons possessing dual allegiance to hold local elective office.
To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the
concurrent application of the different laws of two or more states, a person is simultaneously considered a national by
the said states.[9] For instance, such a situation may arise when a person whose parents are citizens of a state which
adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso
facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the
citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to
possess dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers country such
children are citizens of that country;
(3) Those who marry aliens if by the laws of the latters country the former are considered citizens, unless by their
act or omission they are deemed to have renounced Philippine citizenship.
There may be other situations in which a citizen of the Philippines may, without performing any act, be also a
citizen of another state; but the above cases are clearly possible given the constitutional provisions on citizenship.
Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive
act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individuals
volition.
With respect to dual allegiance, Article IV, 5 of the Constitution provides: Dual allegiance of citizens is inimical
to the national interest and shall be dealt with by law. This provision was included in the 1987 Constitution at the
instance of Commissioner Blas F. Ople who explained its necessity as follows:[10]

. . . I want to draw attention to the fact that dual allegiance is not dual citizenship. I have circulated a memorandum to
the Bernas Committee according to which a dual allegiance  and I reiterate a dual allegiance  is larger and more
threatening than that of mere double citizenship which is seldom intentional and, perhaps, never insidious. That is
often a function of the accident of mixed marriages or of birth on foreign soil. And so, I do not question double
citizenship at all.

What we would like the Committee to consider is to take constitutional cognizance of the problem of dual
allegiance. For example, we all know what happens in the triennial elections of the Federation of Filipino-Chinese
Chambers of Commerce which consists of about 600 chapters all over the country. There is a Peking ticket, as well as
a Taipei ticket. Not widely known is the fact that the Filipino-Chinese community is represented in the Legislative
Yuan of the Republic of China in Taiwan. And until recently, the sponsor might recall, in Mainland China in the
Peoples Republic of China, they have the Associated Legislative Council for overseas Chinese wherein all of
Southeast Asia including some European and Latin countries were represented, which was dissolved after several
years because of diplomatic friction. At that time, the Filipino-Chinese were also represented in that Overseas Council.

When I speak of double allegiance, therefore, I speak of this unsettled kind of allegiance of Filipinos, of citizens who
are already Filipinos but who, by their acts, may be said to be bound by a second allegiance, either to Peking or
Taiwan. I also took close note of the concern expressed by some Commissioners yesterday, including Commissioner
Villacorta, who were concerned about the lack of guarantees of thorough assimilation, and especially Commissioner
Concepcion who has always been worried about minority claims on our natural resources.

Dual allegiance can actually siphon scarce national capital to Taiwan, Singapore, China or Malaysia, and this is
already happening. Some of the great commercial places in downtown Taipei are Filipino-owned, owned by Filipino-
Chinese it is of common knowledge in Manila. It can mean a tragic capital outflow when we have to endure a capital
famine which also means economic stagnation, worsening unemployment and social unrest.

And so, this is exactly what we ask that the Committee kindly consider incorporating a new section, probably Section
5, in the article on Citizenship which will read as follows: DUAL ALLEGIANCE IS INIMICAL TO CITIZENSHIP
AND SHALL BE DEALT WITH ACCORDING TO LAW.

In another session of the Commission, Ople spoke on the problem of these citizens with dual allegiance, thus:[11]

. . . A significant number of Commissioners expressed their concern about dual citizenship in the sense that it implies
a double allegiance under a double sovereignty which some of us who spoke then in a freewheeling debate thought
would be repugnant to the sovereignty which pervades the Constitution and to citizenship itself which implies a
uniqueness and which elsewhere in the Constitution is defined in terms of rights and obligations exclusive to that
citizenship including, of course, the obligation to rise to the defense of the State when it is threatened, and back of this,
Commissioner Bernas, is, of course, the concern for national security. In the course of those debates, I think some
noted the fact that as a result of the wave of naturalizations since the decision to establish diplomatic relations with the
Peoples Republic of China was made in 1975, a good number of these naturalized Filipinos still routinely go to Taipei
every October 10; and it is asserted that some of them do renew their oath of allegiance to a foreign government
maybe just to enter into the spirit of the occasion when the anniversary of the Sun Yat-Sen Republic is
commemorated. And so, I have detected a genuine and deep concern about double citizenship, with its attendant risk
of double allegiance which is repugnant to our sovereignty and national security. I appreciate what the Committee said
that this could be left to the determination of a future legislature. But considering the scale of the problem, the real
impact on the security of this country, arising from, let us say, potentially great numbers of double citizens professing
double allegiance, will the Committee entertain a proposed amendment at the proper time that will prohibit, in effect,
or regulate double citizenship?

Clearly, in including 5 in Article IV on citizenship, the concern of the Constitutional Commission was not with
dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after
their naturalization. Hence, the phrase dual citizenship in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be
understood as referring to dual allegiance. Consequently, persons with mere dual citizenship do not fall under this
disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the
termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates
of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that
their condition is the unavoidable consequence of conflicting laws of different states. As Joaquin G. Bernas, one of the
most perceptive members of the Constitutional Commission, pointed out: [D]ual citizenship is just a reality imposed on
us because we have no control of the laws on citizenship of other countries. We recognize a child of a Filipino
mother. But whether or not she is considered a citizen of another country is something completely beyond our control.[12]
By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of
which they are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of
the foreign state and of its laws, such an individual has not effectively renounced his foreign citizenship. That is of no
moment as the following discussion on 40(d) between Senators Enrile and Pimentel clearly shows: [13]
SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: Any person with dual
citizenship is disqualified to run for any elective local position. Under the present Constitution, Mr. President,
someone whose mother is a citizen of the Philippines but his father is a foreigner is a natural-born citizen of the
Republic. There is no requirement that such a natural born citizen, upon reaching the age of majority, must elect
or give up Philippine citizenship.
On the assumption that this person would carry two passports, one belonging to the country of his or her father and
one belonging to the Republic of the Philippines, may such a situation disqualify the person to run for a local
government position?
SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment when he would want to run
for public office, he has to repudiate one of his citizenships.
SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of origin or the country of the
father claims that person, nevertheless, as a citizen? No one can renounce. There are such countries in the world.
SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in effect, be an election for
him of his desire to be considered as a Filipino citizen.
SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require an election. Under the
Constitution, a person whose mother is a citizen of the Philippines is, at birth, a citizen without any overt act to
claim the citizenship.
SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the Gentlemans example, if he does not
renounce his other citizenship, then he is opening himself to question. So, if he is really interested to run, the
first thing he should do is to say in the Certificate of Candidacy that: I am a Filipino citizen, and I have only one
citizenship.
SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr. President. He will always have
one citizenship, and that is the citizenship invested upon him or her in the Constitution of the Republic.
SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will prove that he also
acknowledges other citizenships, then he will probably fall under this disqualification.
This is similar to the requirement that an applicant for naturalization must renounce all allegiance and fidelity to
any foreign prince, potentate, state, or sovereignty[14] of which at the time he is a subject or citizen before he can be
issued a certificate of naturalization as a citizen of the Philippines. In Parado v. Republic,[15] it was held:

[W]hen a person applying for citizenship by naturalization takes an oath that he renounces his loyalty to any other
country or government and solemnly declares that he owes his allegiance to the Republic of the Philippines, the
condition imposed by law is satisfied and complied with. The determination whether such renunciation is valid or
fully complies with the provisions of our Naturalization Law lies within the province and is an exclusive prerogative
of our courts. The latter should apply the law duly enacted by the legislative department of the Republic. No foreign
law may or should interfere with its operation and application. If the requirement of the Chinese Law of Nationality
were to be read into our Naturalization Law, we would be applying not what our legislative department has deemed it
wise to require, but what a foreign government has thought or intended to exact. That, of course, is absurd. It must be
resisted by all means and at all cost. It would be a brazen encroachment upon the sovereign will and power of the
people of this Republic.

III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP

The record shows that private respondent was born in San Francisco, California on September 4, 1955, of Filipino
parents. Since the Philippines adheres to the principle of jus sanguinis, while the United States follows the doctrine
of jus soli, the parties agree that, at birth at least, he was a national both of the Philippines and of the United
States. However, the COMELEC en banc held that, by participating in Philippine elections in 1992, 1995, and 1998,
private respondent effectively renounced his U.S. citizenship under American law, so that now he is solely a Philippine
national.
Petitioner challenges this ruling. He argues that merely taking part in Philippine elections is not sufficient evidence
of renunciation and that, in any event, as the alleged renunciation was made when private respondent was already 37
years old, it was ineffective as it should have been made when he reached the age of majority.
In holding that by voting in Philippine elections private respondent renounced his American citizenship, the
COMELEC must have in mind 349 of the Immigration and Nationality Act of the United States, which provided that A
person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: . . . (e)
Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty
over foreign territory. To be sure this provision was declared unconstitutional by the U.S. Supreme Court in Afroyim v.
Rusk[16] as beyond the power given to the U.S. Congress to regulate foreign relations. However, by filing a certificate of
candidacy when he ran for his present post, private respondent elected Philippine citizenship and in effect renounced
his American citizenship. Private respondents certificate of candidacy, filed on March 27, 1998, contained the following
statements made under oath:
6. I AM A FILIPINO CITIZEN (STATE IF NATURAL-BORN OR NATURALIZED) NATURAL-BORN
....
10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN LORENZO,
CITY/MUNICIPALITY OF MAKATI, PROVINCE OF NCR .
11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY.
12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL SUPPORT AND DEFEND
THE CONSTITUTION OF THE PHILIPPINES AND WILL MAINTAIN TRUE FAITH AND
ALLEGIANCE THERETO; THAT I WILL OBEY THE LAWS, LEGAL ORDERS AND DECREES
PROMULGATED BY THE DULY CONSTITUTED AUTHORITIES OF THE REPUBLIC OF THE
PHILIPPINES; AND THAT I IMPOSE THIS OBLIGATION UPON MYSELF VOLUNTARILY,
WITHOUT MENTAL RESERVATION OR PURPOSE OF EVASION. I HEREBY CERTIFY THAT
THE FACTS STATED HEREIN ARE TRUE AND CORRECT OF MY OWN PERSONAL
KNOWLEDGE.
The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively removing any
disqualification he might have as a dual citizen. Thus, in Frivaldo v. COMELEC it was held:[17]

It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation
not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him
from running for any elective local position? We answer this question in the negative, as there is cogent reason to hold
that Frivaldo was really STATELESS at the time he took said oath of allegiance and even before that, when he ran for
governor in 1988. In his Comment, Frivaldo wrote that he had long renounced and had long abandoned his American
citizenshiplong before May 8, 1995. At best, Frivaldo was stateless in the interimwhen he abandoned and
renounced his US citizenship but before he was repatriated to his Filipino citizenship.

On this point, we quote from the assailed Resolution dated December 19, 1995:

By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath of allegiance
to the Philippine Government when he ran for Governor in 1988, in 1992, and in 1995.Every certificate of candidacy
contains an oath of allegiance to the Philippine Government.

These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not been
effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are conclusive upon this
Court, absent any showing of capriciousness or arbitrariness or abuse.

There is, therefore, no merit in petitioners contention that the oath of allegiance contained in private respondents
certificate of candidacy is insufficient to constitute renunciation of his American citizenship. Equally without merit is
petitioners contention that, to be effective, such renunciation should have been made upon private respondent reaching
the age of majority since no law requires the election of Philippine citizenship to be made upon majority age.
Finally, much is made of the fact that private respondent admitted that he is registered as an American citizen in
the Bureau of Immigration and Deportation and that he holds an American passport which he used in his last travel to
the United States on April 22, 1997. There is no merit in this. Until the filing of his certificate of candidacy on March
21, 1998, he had dual citizenship. The acts attributed to him can be considered simply as the assertion of his American
nationality before the termination of his American citizenship. What this Court said in Aznar v.
COMELEC[18] applies mutatis mutandis to private respondent in the case at bar:

. . . Considering the fact that admittedly Osmea was both a Filipino and an American, the mere fact that he has a
Certificate stating he is an American does not mean that he is not still a Filipino. . . . [T]he Certification that he is an
American does not mean that he is not still a Filipino, possessed as he is, of both nationalities or citizenships. Indeed,
there is no express renunciation here of Philippine citizenship; truth to tell, there is even no implied renunciation of
said citizenship. When We consider that the renunciation needed to lose Philippine citizenship must be express, it
stands to reason that there can be no such loss of Philippine citizenship when there is no renunciation, either express
or implied.

To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent
resident or immigrant of another country; that he will defend and support the Constitution of the Philippines and bear
true faith and allegiance thereto and that he does so without mental reservation, private respondent has, as far as the
laws of this country are concerned, effectively repudiated his American citizenship and anything which he may have
said before as a dual citizen.
On the other hand, private respondents oath of allegiance to the Philippines, when considered with the fact that he
has spent his youth and adulthood, received his education, practiced his profession as an artist, and taken part in past
elections in this country, leaves no doubt of his election of Philippine citizenship.
His declarations will be taken upon the faith that he will fulfill his undertaking made under oath. Should he betray
that trust, there are enough sanctions for declaring the loss of his Philippine citizenship through expatriation in
appropriate proceedings. In Yu v. Defensor-Santiago,[19] we sustained the denial of entry into the country of petitioner
on the ground that, after taking his oath as a naturalized citizen, he applied for the renewal of his Portuguese passport
and declared in commercial documents executed abroad that he was a Portuguese national. A similar sanction can be
taken against any one who, in electing Philippine citizenship, renounces his foreign nationality, but subsequently does
some act constituting renunciation of his Philippine citizenship.
WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.
G.R. No. 119976 September 18, 1995

IMELDA ROMUALDEZ-MARCOS, petitioner,


vs.
COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, respondents.

KAPUNAN, J.:

A constitutional provision should be construed as to give it effective operation and suppress the mischief at
which it is aimed.1 The 1987 Constitution mandates that an aspirant for election to the House of Representatives
be "a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less
than one year immediately preceding the election."2 The mischief which this provision — reproduced verbatim
from the 1973 Constitution — seeks to prevent is the possibility of a "stranger or newcomer unacquainted with
the conditions and needs of a community and not identified with the latter, from an elective office to serve that
community."3

Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the position of Representative of the
First District of Leyte with the Provincial Election Supervisor on March 8, 1995, providing the following
information in item no. 8:4

RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY


PRECEDING THE ELECTION: __________ Years and seven Months.

On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent Representative of the First District of
Leyte and a candidate for the same position, filed a "Petition for Cancellation and Disqualification"5 with the
Commission on Elections alleging that petitioner did not meet the constitutional requirement for residency. In his
petition, private respondent contended that Mrs. Marcos lacked the Constitution's one year residency
requirement for candidates for the House of Representatives on the evidence of declarations made by her in
Voter Registration Record 94-No. 33497726 and in her Certificate of Candidacy. He prayed that "an order be
issued declaring (petitioner) disqualified and canceling the certificate of candidacy."7

On March 29, 1995, petitioner filed an Amended/Corrected Certificate of Candidacy, changing the entry "seven"
months to "since childhood" in item no. 8 of the amended certificate.8 On the same day, the Provincial Election
Supervisor of Leyte informed petitioner that:

[T]his office cannot receive or accept the aforementioned Certificate of Candidacy on the ground
that it is filed out of time, the deadline for the filing of the same having already lapsed on March
20, 1995. The Corrected/Amended Certificate of Candidacy should have been filed on or before
the March 20, 1995 deadline.9

Consequently, petitioner filed the Amended/Corrected Certificate of Candidacy with the COMELEC's Head
Office in Intramuros, Manila on
March 31, 1995. Her Answer to private respondent's petition in SPA No. 95-009 was likewise filed with the head
office on the same day. In said Answer, petitioner averred that the entry of the word "seven" in her original
Certificate of Candidacy was the result of an "honest misinterpretation" 10 which she sought to rectify by adding
the words "since childhood" in her Amended/Corrected Certificate of Candidacy and that "she has always
maintained Tacloban City as her domicile or residence. 11 Impugning respondent's motive in filing the petition
seeking her disqualification, she noted that:

When respondent (petitioner herein) announced that she was intending to register as a voter in
Tacloban City and run for Congress in the First District of Leyte, petitioner immediately opposed
her intended registration by writing a letter stating that "she is not a resident of said city but of
Barangay Olot, Tolosa, Leyte. After respondent had registered as a voter in Tolosa following
completion of her six month actual residence therein, petitioner filed a petition with the
COMELEC to transfer the town of Tolosa from the First District to the Second District and
pursued such a move up to the Supreme Court, his purpose being to remove respondent as
petitioner's opponent in the congressional election in the First District. He also filed a bill, along
with other Leyte Congressmen, seeking the creation of another legislative district to remove the
town of Tolosa out of the First District, to achieve his purpose. However, such bill did not pass
the Senate. Having failed on such moves, petitioner now filed the instant petition for the same
objective, as it is obvious that he is afraid to submit along with respondent for the judgment and
verdict of the electorate of the First District of Leyte in an honest, orderly, peaceful, free and
clean elections on May 8, 1995. 12

On April 24, 1995, the Second Division of the Commission on Elections (COMELEC), by a vote of 2 to 1, 13 came
up with a Resolution 1) finding private respondent's Petition for Disqualification in SPA 95-009 meritorious; 2)
striking off petitioner's Corrected/Amended Certificate of Candidacy of March 31, 1995; and 3) canceling her
original Certificate of Candidacy. 14 Dealing with two primary issues, namely, the validity of amending the original
Certificate of Candidacy after the lapse of the deadline for filing certificates of candidacy, and petitioner's
compliance with the one year residency requirement, the Second Division held:

Respondent raised the affirmative defense in her Answer that the printed word "Seven" (months)
was a result of an "honest misinterpretation or honest mistake" on her part and, therefore, an
amendment should subsequently be allowed. She averred that she thought that what was asked
was her "actual and physical" presence in Tolosa and not residence of origin or domicile in the
First Legislative District, to which she could have responded "since childhood." In an
accompanying affidavit, she stated that her domicile is Tacloban City, a component of the First
District, to which she always intended to return whenever absent and which she has never
abandoned. Furthermore, in her memorandum, she tried to discredit petitioner's theory of
disqualification by alleging that she has been a resident of the First Legislative District of Leyte
since childhood, although she only became a resident of the Municipality of Tolosa for seven
months. She asserts that she has always been a resident of Tacloban City, a component of the
First District, before coming to the Municipality of Tolosa.

Along this point, it is interesting to note that prior to her registration in Tolosa, respondent
announced that she would be registering in Tacloban City so that she can be a candidate for the
District. However, this intention was rebuffed when petitioner wrote the Election Officer of
Tacloban not to allow respondent since she is a resident of Tolosa and not Tacloban. She never
disputed this claim and instead implicitly acceded to it by registering in Tolosa.

This incident belies respondent's claim of "honest misinterpretation or honest mistake." Besides,
the Certificate of Candidacy only asks for RESIDENCE. Since on the basis of her Answer, she
was quite aware of "residence of origin" which she interprets to be Tacloban City, it is curious
why she did not cite Tacloban City in her Certificate of Candidacy. Her explanation that she
thought what was asked was her actual and physical presence in Tolosa is not easy to believe
because there is none in the question that insinuates about Tolosa. In fact, item no. 8 in the
Certificate of Candidacy speaks clearly of "Residency in the CONSTITUENCY where I seek to be
elected immediately preceding the election." Thus, the explanation of respondent fails to be
persuasive.

From the foregoing, respondent's defense of an honest mistake or misinterpretation, therefore, is


devoid of merit.

To further buttress respondent's contention that an amendment may be made, she cited the case
of Alialy v. COMELEC (2 SCRA 957). The reliance of respondent on the case of Alialy is
misplaced. The case only applies to the "inconsequential deviations which cannot affect the
result of the election, or deviations from provisions intended primarily to secure timely and orderly
conduct of elections." The Supreme Court in that case considered the amendment only as a
matter of form. But in the instant case, the amendment cannot be considered as a matter of form
or an inconsequential deviation. The change in the number of years of residence in the place
where respondent seeks to be elected is a substantial matter which determines her qualification
as a candidacy, specially those intended to suppress, accurate material representation in the
original certificate which adversely affects the filer. To admit the amended certificate is to
condone the evils brought by the shifting minds of manipulating candidate, of the detriment of the
integrity of the election.

Moreover, to allow respondent to change the seven (7) month period of her residency in order to
prolong it by claiming it was "since childhood" is to allow an untruthfulness to be committed
before this Commission. The arithmetical accuracy of the 7 months residency the respondent
indicated in her certificate of candidacy can be gleaned from her entry in her Voter's Registration
Record accomplished on January 28, 1995 which reflects that she is a resident of Brgy. Olot,
Tolosa, Leyte for 6 months at the time of the said registration (Annex A, Petition). Said accuracy
is further buttressed by her letter to the election officer of San Juan, Metro Manila, dated August
24, 1994, requesting for the cancellation of her registration in the Permanent List of Voters
thereat so that she can be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. The dates of
these three (3) different documents show the respondent's consistent conviction that she has
transferred her residence to Olot, Tolosa, Leyte from Metro Manila only for such limited period of
time, starting in the last week of August 1994 which on March 8, 1995 will only sum up to 7
months. The Commission, therefore, cannot be persuaded to believe in the respondent's
contention that it was an error.

xxx xxx xxx

Based on these reasons the Amended/Corrected Certificate of Candidacy cannot be admitted by


this Commission.

xxx xxx xxx

Anent the second issue, and based on the foregoing discussion, it is clear that respondent has
not complied with the one year residency requirement of the Constitution.

In election cases, the term "residence" has always been considered as synonymous with
"domicile" which imports not only the intention to reside in a fixed place but also personal
presence in-that place, coupled with conduct indicative of such intention. Domicile denotes a
fixed permanent residence to which when absent for business or pleasure, or for like reasons,
one intends to return. (Perfecto Faypon vs. Eliseo Quirino, 96 Phil 294; Romualdez vs. RTC-
Tacloban, 226 SCRA 408). In respondent's case, when she returned to the Philippines in 1991,
the residence she chose was not Tacloban but San Juan, Metro Manila. Thus, her animus
revertendi is pointed to Metro Manila and not Tacloban.

This Division is aware that her claim that she has been a resident of the First District since
childhood is nothing more than to give her a color of qualification where she is otherwise
constitutionally disqualified. It cannot hold ground in the face of the facts admitted by the
respondent in her affidavit. Except for the time that she studied and worked for some years after
graduation in Tacloban City, she continuously lived in Manila. In 1959, after her husband was
elected Senator, she lived and resided in San Juan, Metro Manila where she was a registered
voter. In 1965, she lived in San Miguel, Manila where she was again a registered voter. In 1978,
she served as member of the Batasang Pambansa as the representative of the City of Manila
and later on served as the Governor of Metro Manila. She could not have served these positions
if she had not been a resident of the City of Manila. Furthermore, when she filed her certificate of
candidacy for the office of the President in 1992, she claimed to be a resident of San Juan, Metro
Manila. As a matter of fact on August 24, 1994, respondent wrote a letter with the election officer
of San Juan, Metro Manila requesting for the cancellation of her registration in the permanent list
of voters that she may be re-registered or transferred to Barangay Olot, Tolosa, Leyte. These
facts manifest that she could not have been a resident of Tacloban City since childhood up to the
time she filed her certificate of candidacy because she became a resident of many places,
including Metro Manila. This debunks her claim that prior to her residence in Tolosa, Leyte, she
was a resident of the First Legislative District of Leyte since childhood.

In this case, respondent's conduct reveals her lack of intention to make Tacloban her domicile.
She registered as a voter in different places and on several occasions declared that she was a
resident of Manila. Although she spent her school days in Tacloban, she is considered to have
abandoned such place when she chose to stay and reside in other different places. In the case
of Romualdez vs. RTC (226 SCRA 408) the Court explained how one acquires a new domicile by
choice. There must concur: (1) residence or bodily presence in the new locality; (2) intention to
remain there; and (3) intention to abandon the old domicile. In other words there must basically
be animus manendi with animus non revertendi. When respondent chose to stay in Ilocos and
later on in Manila, coupled with her intention to stay there by registering as a voter there and
expressly declaring that she is a resident of that place, she is deemed to have abandoned
Tacloban City, where she spent her childhood and school days, as her place of domicile.

Pure intention to reside in that place is not sufficient, there must likewise be conduct indicative of
such intention. Respondent's statements to the effect that she has always intended to return to
Tacloban, without the accompanying conduct to prove that intention, is not conclusive of her
choice of residence. Respondent has not presented any evidence to show that her conduct, one
year prior the election, showed intention to reside in Tacloban. Worse, what was evident was that
prior to her residence in Tolosa, she had been a resident of Manila.

It is evident from these circumstances that she was not a resident of the First District of Leyte
"since childhood."

To further support the assertion that she could have not been a resident of the First District of
Leyte for more than one year, petitioner correctly pointed out that on January 28, 1995
respondent registered as a voter at precinct No. 18-A of Olot, Tolosa, Leyte. In doing so, she
placed in her Voter Registration Record that she resided in the municipality of Tolosa for a period
of six months. This may be inconsequential as argued by the respondent since it refers only to
her residence in Tolosa, Leyte. But her failure to prove that she was a resident of the First District
of Leyte prior to her residence in Tolosa leaves nothing but a convincing proof that she had been
a resident of the district for six months only. 15

In a Resolution promulgated a day before the May 8, 1995 elections, the COMELEC en banc denied petitioner's
Motion for Reconsideration 16 of the April 24, 1995 Resolution declaring her not qualified to run for the position of
Member of the House of Representatives for the First Legislative District of Leyte. 17 The Resolution tersely
stated:

After deliberating on the Motion for Reconsideration, the Commission RESOLVED to DENY it, no
new substantial matters having been raised therein to warrant re-examination of the resolution
granting the petition for disqualification. 18

On May 11, 1995, the COMELEC issued a Resolution allowing petitioner's proclamation should the results of the
canvass show that she obtained the highest number of votes in the congressional elections in the First District of
Leyte. On the same day, however, the COMELEC reversed itself and issued a second Resolution directing that
the proclamation of petitioner be suspended in the event that she obtains the highest number of votes. 19

In a Supplemental Petition dated 25 May 1995, petitioner averred that she was the overwhelming winner of the
elections for the congressional seat in the First District of Leyte held May 8, 1995 based on the canvass
completed by the Provincial Board of Canvassers on May 14, 1995. Petitioner alleged that the canvass showed
that she obtained a total of 70,471 votes compared to the 36,833 votes received by Respondent Montejo. A copy
of said Certificate of Canvass was annexed to the Supplemental Petition.

On account of the Resolutions disqualifying petitioner from running for the congressional seat of the First District
of Leyte and the public respondent's Resolution suspending her proclamation, petitioner comes to this court for
relief.

Petitioner raises several issues in her Original and Supplemental Petitions. The principal issues may be
classified into two general areas:

I. The issue of Petitioner's qualifications

Whether or not petitioner was a resident, for election purposes, of the First District of Leyte for a
period of one year at the time of the May 9, 1995 elections.

II. The Jurisdictional Issue

a) Prior to the elections

Whether or not the COMELEC properly exercised its jurisdiction in disqualifying petitioner outside
the period mandated by the Omnibus Election Code for disqualification cases under Article 78 of
the said Code.

b) After the Elections

Whether or not the House of Representatives Electoral Tribunal assumed exclusive jurisdiction
over the question of petitioner's qualifications after the May 8, 1995 elections.
I. Petitioner's qualification

A perusal of the Resolution of the COMELEC's Second Division reveals a startling confusion in the application of
settled concepts of "Domicile" and "Residence" in election law. While the COMELEC seems to be in agreement
with the general proposition that for the purposes of election law, residence is synonymous with domicile, the
Resolution reveals a tendency to substitute or mistake the concept of domicile for actual residence, a conception
not intended for the purpose of determining a candidate's qualifications for election to the House of
Representatives as required by the 1987 Constitution. As it were, residence, for the purpose of meeting the
qualification for an elective position, has a settled meaning in our jurisdiction.

Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the fulfillment of civil obligations, the
domicile of natural persons is their place of habitual residence." In Ong vs. Republic 20 this court took the concept
of domicile to mean an individual's "permanent home", "a place to which, whenever absent for business or for
pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose
intent." 21Based on the foregoing, domicile includes the twin elements of "the fact of residing or physical presence
in a fixed place" and animus manendi, or the intention of returning there permanently.

Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the
physical presence of a person in a given area, community or country. The essential distinction between
residence and domicile in law is that residence involves the intent to leave when the purpose for which the
resident has taken up his abode ends. One may seek a place for purposes such as pleasure, business, or
health. If a person's intent be to remain, it becomes his domicile; if his intent is to leave as soon as his purpose is
established it is residence. 22 It is thus, quite perfectly normal for an individual to have different residences in
various places. However, a person can only have a single domicile, unless, for various reasons, he successfully
abandons his domicile in favor of another domicile of choice. In Uytengsu vs. Republic, 23 we laid this distinction
quite clearly:

There is a difference between domicile and residence. "Residence" is used to indicate a place of
abode, whether permanent or temporary; "domicile" denotes a fixed permanent residence to
which, when absent, one has the intention of returning. A man may have a residence in one
place and a domicile in another. Residence is not domicile, but domicile is residence coupled
with the intention to remain for an unlimited time. A man can have but one domicile for the same
purpose at any time, but he may have numerous places of residence. His place of residence is
generally his place of domicile, but it is not by any means necessarily so since no length of
residence without intention of remaining will constitute domicile.

For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political
laws. As these concepts have evolved in our election law, what has clearly and unequivocally emerged is the
fact that residence for election purposes is used synonymously with domicile.

In Nuval vs. Guray, 24 the Court held that "the term residence. . . is synonymous with domicile which imports not
only intention to reside in a fixed place, but also personal presence in that place, coupled with conduct indicative
of such intention." 25 Larena vs. Teves 26 reiterated the same doctrine in a case involving the qualifications of the
respondent therein to the post of Municipal President of Dumaguete, Negros Oriental. Faypon vs. Quirino, 27 held
that the absence from residence to pursue studies or practice a profession or registration as a voter other than in
the place where one is elected does not constitute loss of residence. 28 So settled is the concept (of domicile) in
our election law that in these and other election law cases, this Court has stated that the mere absence of an
individual from his permanent residence without the intention to abandon it does not result in a loss or change of
domicile.

The deliberations of the 1987 Constitution on the residence qualification for certain elective positions have
placed beyond doubt the principle that when the Constitution speaks of "residence" in election law, it actually
means only "domicile" to wit:

Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention,
there was an attempt to require residence in the place not less than one year immediately
preceding the day of the elections. So my question is: What is the Committee's concept of
residence of a candidate for the legislature? Is it actual residence or is it the concept of domicile
or constructive residence?

Mr. Davide: Madame President, insofar as the regular members of the National Assembly are
concerned, the proposed section merely provides, among others, "and a resident thereof", that
is, in the district for a period of not less than one year preceding the day of the election. This was
in effect lifted from the 1973 Constitution, the interpretation given to it was domicile. 29

xxx xxx xxx

Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner Nolledo has
raised the same point that "resident" has been interpreted at times as a matter of intention rather
than actual residence.

Mr. De los Reyes: Domicile.

Ms. Rosario Braid: Yes, So, would the gentleman consider at the proper time to go back to actual
residence rather than mere intention to reside?

Mr. De los Reyes: But we might encounter some difficulty especially considering that a provision
in the Constitution in the Article on Suffrage says that Filipinos living abroad may vote as enacted
by law. So, we have to stick to the original concept that it should be by domicile and not physical
residence. 30

In Co vs. Electoral Tribunal of the House of Representatives, 31 this Court concluded that the framers of the 1987
Constitution obviously adhered to the definition given to the term residence in election law, regarding it as having
the same meaning as domicile. 32

In the light of the principles just discussed, has petitioner Imelda Romualdez Marcos satisfied the residency
requirement mandated by Article VI, Sec. 6 of the 1987 Constitution? Of what significance is the questioned
entry in petitioner's Certificate of Candidacy stating her residence in the First Legislative District of Leyte as
seven (7) months?

It is the fact of residence, not a statement in a certificate of candidacy which ought to be decisive in determining
whether or not and individual has satisfied the constitution's residency qualification requirement. The said
statement becomes material only when there is or appears to be a deliberate attempt to mislead, misinform, or
hide a fact which would otherwise render a candidate ineligible. It would be plainly ridiculous for a candidate to
deliberately and knowingly make a statement in a certificate of candidacy which would lead to his or her
disqualification.

It stands to reason therefore, that petitioner merely committed an honest mistake in jotting the word "seven" in
the space provided for the residency qualification requirement. The circumstances leading to her filing the
questioned entry obviously resulted in the subsequent confusion which prompted petitioner to write down the
period of her actual stay in Tolosa, Leyte instead of her period of residence in the First district, which was "since
childhood" in the space provided. These circumstances and events are amply detailed in the COMELEC's
Second Division's questioned resolution, albeit with a different interpretation. For instance, when herein
petitioner announced that she would be registering in Tacloban City to make her eligible to run in the First
District, private respondent Montejo opposed the same, claiming that petitioner was a resident of Tolosa, not
Tacloban City. Petitioner then registered in her place of actual residence in the First District, which is Tolosa,
Leyte, a fact which she subsequently noted down in her Certificate of Candidacy. A close look at said certificate
would reveal the possible source of the confusion: the entry for residence (Item No. 7) is followed immediately by
the entry for residence in the constituency where a candidate seeks election thus:

7. RESIDENCE (complete Address): Brgy. Olot, Tolosa, Leyte

POST OFFICE ADDRESS FOR ELECTION PURPOSES: Brgy. Olot, Tolosa, Leyte

8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO


BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:_________ Years
and Seven Months.

Having been forced by private respondent to register in her place of actual residence in Leyte instead of
petitioner's claimed domicile, it appears that petitioner had jotted down her period of stay in her legal residence
or domicile. The juxtaposition of entries in Item 7 and Item 8 — the first requiring actual residence and the
second requiring domicile — coupled with the circumstances surrounding petitioner's registration as a voter in
Tolosa obviously led to her writing down an unintended entry for which she could be disqualified. This honest
mistake should not, however, be allowed to negate the fact of residence in the First District if such fact were
established by means more convincing than a mere entry on a piece of paper.

We now proceed to the matter of petitioner's domicile.

In support of its asseveration that petitioner's domicile could not possibly be in the First District of Leyte, the
Second Division of the COMELEC, in its assailed Resolution of April 24,1995 maintains that "except for the time
when (petitioner) studied and worked for some years after graduation in Tacloban City, she continuously lived in
Manila." The Resolution additionally cites certain facts as indicative of the fact that petitioner's domicile ought to
be any place where she lived in the last few decades except Tacloban, Leyte. First, according to the Resolution,
petitioner, in 1959, resided in San Juan, Metro Manila where she was also registered voter. Then, in 1965,
following the election of her husband to the Philippine presidency, she lived in San Miguel, Manila where she as
a voter. In 1978 and thereafter, she served as a member of the Batasang Pambansa and Governor of Metro
Manila. "She could not, have served these positions if she had not been a resident of Metro Manila," the
COMELEC stressed. Here is where the confusion lies.

We have stated, many times in the past, that an individual does not lose his domicile even if he has lived and
maintained residences in different places. Residence, it bears repeating, implies a factual relationship to a given
place for various purposes. The absence from legal residence or domicile to pursue a profession, to study or to
do other things of a temporary or semi-permanent nature does not constitute loss of residence. Thus, the
assertion by the COMELEC that "she could not have been a resident of Tacloban City since childhood up to the
time she filed her certificate of candidacy because she became a resident of many places" flies in the face of
settled jurisprudence in which this Court carefully made distinctions between (actual) residence and domicile for
election law purposes. In Larena vs. Teves, 33 supra, we stressed:

[T]his court is of the opinion and so holds that a person who has his own house wherein he lives
with his family in a municipality without having ever had the intention of abandoning it, and
without having lived either alone or with his family in another municipality, has his residence in
the former municipality, notwithstanding his having registered as an elector in the other
municipality in question and having been a candidate for various insular and provincial positions,
stating every time that he is a resident of the latter municipality.

More significantly, in Faypon vs. Quirino, 34 We explained that:

A citizen may leave the place of his birth to look for "greener pastures," as the saying goes, to
improve his lot, and that, of course includes study in other places, practice of his avocation, or
engaging in business. When an election is to be held, the citizen who left his birthplace to
improve his lot may desire to return to his native town to cast his ballot but for professional or
business reasons, or for any other reason, he may not absent himself from his professional or
business activities; so there he registers himself as voter as he has the qualifications to be one
and is not willing to give up or lose the opportunity to choose the officials who are to run the
government especially in national elections. Despite such registration, the animus revertendi to
his home, to his domicile or residence of origin has not forsaken him. This may be the
explanation why the registration of a voter in a place other than his residence of origin has not
been deemed sufficient to constitute abandonment or loss of such residence. It finds justification
in the natural desire and longing of every person to return to his place of birth. This strong feeling
of attachment to the place of one's birth must be overcome by positive proof of abandonment for
another.

From the foregoing, it can be concluded that in its above-cited statements supporting its proposition that
petitioner was ineligible to run for the position of Representative of the First District of Leyte, the COMELEC was
obviously referring to petitioner's various places of (actual) residence, not her domicile. In doing so, it not only
ignored settled jurisprudence on residence in election law and the deliberations of the constitutional commission
but also the provisions of the Omnibus Election Code (B.P. 881). 35

What is undeniable, however, are the following set of facts which establish the fact of petitioner's domicile, which
we lift verbatim from the COMELEC's Second Division's assailed Resolution: 36

In or about 1938 when respondent was a little over 8 years old, she established her domicile in
Tacloban, Leyte (Tacloban City). She studied in the Holy Infant Academy in Tacloban from 1938
to 1949 when she graduated from high school. She pursued her college studies in St. Paul's
College, now Divine Word University in Tacloban, where she earned her degree in Education.
Thereafter, she taught in the Leyte Chinese School, still in Tacloban City. In 1952 she went to
Manila to work with her cousin, the late speaker Daniel Z. Romualdez in his office in the House of
Representatives. In 1954, she married ex-President Ferdinand E. Marcos when he was still a
congressman of Ilocos Norte and registered there as a voter. When her husband was elected
Senator of the Republic in 1959, she and her husband lived together in San Juan, Rizal where
she registered as a voter. In 1965, when her husband was elected President of the Republic of
the Philippines, she lived with him in Malacanang Palace and registered as a voter in San
Miguel, Manila.

[I]n February 1986 (she claimed that) she and her family were abducted and kidnapped to
Honolulu, Hawaii. In November 1991, she came home to Manila. In 1992, respondent ran for
election as President of the Philippines and filed her Certificate of Candidacy wherein she
indicated that she is a resident and registered voter of San Juan, Metro Manila.

Applying the principles discussed to the facts found by COMELEC, what is inescapable is that petitioner held
various residences for different purposes during the last four decades. None of these purposes unequivocally
point to an intention to abandon her domicile of origin in Tacloban, Leyte. Moreover, while petitioner was born in
Manila, as a minor she naturally followed the domicile of her parents. She grew up in Tacloban, reached her
adulthood there and eventually established residence in different parts of the country for various reasons. Even
during her husband's presidency, at the height of the Marcos Regime's powers, petitioner kept her close ties to
her domicile of origin by establishing residences in Tacloban, celebrating her birthdays and other important
personal milestones in her home province, instituting well-publicized projects for the benefit of her province and
hometown, and establishing a political power base where her siblings and close relatives held positions of power
either through the ballot or by appointment, always with either her influence or consent. These well-publicized
ties to her domicile of origin are part of the history and lore of the quarter century of Marcos power in our
country. Either they were entirely ignored in the COMELEC'S Resolutions, or the majority of the COMELEC did
not know what the rest of the country always knew: the fact of petitioner's domicile in Tacloban, Leyte.

Private respondent in his Comment, contends that Tacloban was not petitioner's domicile of origin because she
did not live there until she was eight years old. He avers that after leaving the place in 1952, she "abandoned her
residency (sic) therein for many years and . . . (could not) re-establish her domicile in said place by merely
expressing her intention to live there again." We do not agree.

First, minor follows the domicile of his parents. As domicile, once acquired is retained until a new one is gained,
it follows that in spite of the fact of petitioner's being born in Manila, Tacloban, Leyte was her domicile of origin
by operation of law. This domicile was not established only when her father brought his family back to Leyte
contrary to private respondent's averments.

Second, domicile of origin is not easily lost. To successfully effect a change of domicile, one must
demonstrate: 37

1. An actual removal or an actual change of domicile;

2. A bona fide intention of abandoning the former place of residence and establishing a new one;
and

3. Acts which correspond with the purpose.

In the absence of clear and positive proof based on these criteria, the residence of origin should be deemed to
continue. Only with evidence showing concurrence of all three requirements can the presumption of continuity or
residence be rebutted, for a change of residence requires an actual and deliberate abandonment, and one
cannot have two legal residences at the same time. 38 In the case at bench, the evidence adduced by private
respondent plainly lacks the degree of persuasiveness required to convince this court that an abandonment of
domicile of origin in favor of a domicile of choice indeed occurred. To effect an abandonment requires the
voluntary act of relinquishing petitioner's former domicile with an intent to supplant the former domicile with one
of her own choosing (domicilium voluntarium).

In this connection, it cannot be correctly argued that petitioner lost her domicile of origin by operation of law as a
result of her marriage to the late President Ferdinand E. Marcos in 1952. For there is a clearly established
distinction between the Civil Code concepts of "domicile" and "residence." 39 The presumption that the wife
automatically gains the husband's domicile by operation of law upon marriage cannot be inferred from the use of
the term "residence" in Article 110 of the Civil Code because the Civil Code is one area where the two concepts
are well delineated. Dr. Arturo Tolentino, writing on this specific area explains:

In the Civil Code, there is an obvious difference between domicile and residence. Both terms
imply relations between a person and a place; but in residence, the relation is one of fact while in
domicile it is legal or juridical, independent of the necessity of physical presence. 40

Article 110 of the Civil Code provides:

Art. 110. — The husband shall fix the residence of the family. But the court may exempt the wife
from living with the husband if he should live abroad unless in the service of the Republic.

A survey of jurisprudence relating to Article 110 or to the concepts of domicile or residence as they affect the
female spouse upon marriage yields nothing which would suggest that the female spouse automatically loses
her domicile of origin in favor of the husband's choice of residence upon marriage.

Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of 1889 which states:

La mujer esta obligada a seguir a su marido donde quiera que fije su residencia. Los Tribunales,
sin embargo, podran con justa causa eximirla de esta obligacion cuando el marido transende su
residencia a ultramar o' a pais extranjero.

Note the use of the phrase "donde quiera su fije de residencia" in the aforequoted article, which means wherever
(the husband) wishes to establish residence. This part of the article clearly contemplates only actual residence
because it refers to a positive act of fixing a family home or residence. Moreover, this interpretation is further
strengthened by the phrase "cuando el marido translade su residencia" in the same provision which means,
"when the husband shall transfer his residence," referring to another positive act of relocating the family to
another home or place of actual residence. The article obviously cannot be understood to refer to domicile which
is a fixed,
fairly-permanent concept when it plainly connotes the possibility of transferring from one place to another not
only once, but as often as the husband may deem fit to move his family, a circumstance more consistent with the
concept of actual residence.

The right of the husband to fix the actual residence is in harmony with the intention of the law to strengthen and
unify the family, recognizing the fact that the husband and the wife bring into the marriage different domiciles (of
origin). This difference could, for the sake of family unity, be reconciled only by allowing the husband to fix a
single place of actual residence.

Very significantly, Article 110 of the Civil Code is found under Title V under the heading: RIGHTS AND
OBLIGATIONS BETWEEN HUSBAND AND WIFE. Immediately preceding Article 110 is Article 109 which
obliges the husband and wife to live together, thus:

Art. 109. — The husband and wife are obligated to live together, observe mutual respect and
fidelity and render mutual help and support.

The duty to live together can only be fulfilled if the husband and wife are physically together. This takes into
account the situations where the couple has many residences (as in the case of the petitioner). If the husband
has to stay in or transfer to any one of their residences, the wife should necessarily be with him in order that they
may "live together." Hence, it is illogical to conclude that Art. 110 refers to "domicile" and not to "residence."
Otherwise, we shall be faced with a situation where the wife is left in the domicile while the husband, for
professional or other reasons, stays in one of their (various) residences. As Dr. Tolentino further explains:

Residence and Domicile — Whether the word "residence" as used with reference to particular
matters is synonymous with "domicile" is a question of some difficulty, and the ultimate decision
must be made from a consideration of the purpose and intent with which the word is used.
Sometimes they are used synonymously, at other times they are distinguished from one another.

xxx xxx xxx

Residence in the civil law is a material fact, referring to the physical presence of a person in a
place. A person can have two or more residences, such as a country residence and a city
residence. Residence is acquired by living in place; on the other hand, domicile can exist without
actually living in the place. The important thing for domicile is that, once residence has been
established in one place, there be an intention to stay there permanently, even if residence is
also established in some other
place. 41

In fact, even the matter of a common residence between the husband and the wife during the marriage is not an
iron-clad principle; In cases applying the Civil Code on the question of a common matrimonial residence, our
jurisprudence has recognized certain situations 42 where the spouses could not be compelled to live with each
other such that the wife is either allowed to maintain a residence different from that of her husband or, for
obviously practical reasons, revert to her original domicile (apart from being allowed to opt for a new one). In De
la Vina vs.Villareal 43 this Court held that "[a] married woman may acquire a residence or domicile separate from
that of her husband during the existence of the marriage where the husband has given cause for
divorce." 44 Note that the Court allowed the wife either to obtain new residence or to choose a new domicile in
such an event. In instances where the wife actually opts, .under the Civil Code, to live separately from her
husband either by taking new residence or reverting to her domicile of origin, the Court has held that the wife
could not be compelled to live with her husband on pain of contempt. In Arroyo vs. Vasques de Arroyo 45 the
Court held that:

Upon examination of the authorities, we are convinced that it is not within the province of the
courts of this country to attempt to compel one of the spouses to cohabit with, and render
conjugal rights to, the other. Of course where the property rights of one of the pair are invaded,
an action for restitution of such rights can be maintained. But we are disinclined to sanction the
doctrine that an order, enforcible (sic) by process of contempt, may be entered to compel the
restitution of the purely personal right of consortium. At best such an order can be effective for no
other purpose than to compel the spouses to live under the same roof; and he experience of
those countries where the courts of justice have assumed to compel the cohabitation of married
people shows that the policy of the practice is extremely questionable. Thus in England, formerly
the Ecclesiastical Court entertained suits for the restitution of conjugal rights at the instance of
either husband or wife; and if the facts were found to warrant it, that court would make a
mandatory decree, enforceable by process of contempt in case of disobedience, requiring the
delinquent party to live with the other and render conjugal rights. Yet this practice was sometimes
criticized even by the judges who felt bound to enforce such orders, and in Weldon v. Weldon (9
P.D. 52), decided in 1883, Sir James Hannen, President in the Probate, Divorce and Admiralty
Division of the High Court of Justice, expressed his regret that the English law on the subject was
not the same as that which prevailed in Scotland, where a decree of adherence, equivalent to the
decree for the restitution of conjugal rights in England, could be obtained by the injured spouse,
but could not be enforced by imprisonment. Accordingly, in obedience to the growing sentiment
against the practice, the Matrimonial Causes Act (1884) abolished the remedy of imprisonment;
though a decree for the restitution of conjugal rights can still be procured, and in case of
disobedience may serve in appropriate cases as the basis of an order for the periodical payment
of a stipend in the character of alimony.

In the voluminous jurisprudence of the United States, only one court, so far as we can discover,
has ever attempted to make a preemptory order requiring one of the spouses to live with the
other; and that was in a case where a wife was ordered to follow and live with her husband, who
had changed his domicile to the City of New Orleans. The decision referred to (Bahn v. Darby, 36
La. Ann., 70) was based on a provision of the Civil Code of Louisiana similar to article 56 of the
Spanish Civil Code. It was decided many years ago, and the doctrine evidently has not been
fruitful even in the State of Louisiana. In other states of the American Union the idea of enforcing
cohabitation by process of contempt is rejected. (21 Cyc., 1148).

In a decision of January 2, 1909, the Supreme Court of Spain appears to have affirmed an order
of the Audiencia Territorial de Valladolid requiring a wife to return to the marital domicile, and in
the alternative, upon her failure to do so, to make a particular disposition of certain money and
effects then in her possession and to deliver to her husband, as administrator of the ganancial
property, all income, rents, and interest which might accrue to her from the property which she
had brought to the marriage. (113 Jur. Civ., pp. 1, 11) But it does not appear that this order for
the return of the wife to the marital domicile was sanctioned by any other penalty than the
consequences that would be visited upon her in respect to the use and control of her property;
and it does not appear that her disobedience to that order would necessarily have been followed
by imprisonment for contempt.
Parenthetically when Petitioner was married to then Congressman Marcos, in 1954, petitioner was obliged — by
virtue of Article 110 of the Civil Code — to follow her husband's actual place of residence fixed by him. The
problem here is that at that time, Mr. Marcos had several places of residence, among which were San Juan,
Rizal and Batac, Ilocos Norte. There is no showing which of these places Mr. Marcos did fix as his family's
residence. But assuming that Mr. Marcos had fixed any of these places as the conjugal residence, what
petitioner gained upon marriage was actual residence. She did not lose her domicile of origin.

On the other hand, the common law concept of "matrimonial domicile" appears to have been incorporated, as a
result of our jurisprudential experiences after the drafting of the Civil Code of 1950, into the New Family Code.
To underscore the difference between the intentions of the Civil Code and the Family Code drafters, the term
residence has been supplanted by the term domicile in an entirely new provision (Art. 69) distinctly different in
meaning and spirit from that found in Article 110. The provision recognizes revolutionary changes in the concept
of women's rights in the intervening years by making the choice of domicile a product of mutual agreement
between the spouses. 46

Without as much belaboring the point, the term residence may mean one thing in civil law (or under the Civil
Code) and quite another thing in political law. What stands clear is that insofar as the Civil Code is concerned-
affecting the rights and obligations of husband and wife — the term residence should only be interpreted to
mean "actual residence." The inescapable conclusion derived from this unambiguous civil law delineation
therefore, is that when petitioner married the former President in 1954, she kept her domicile of origin and
merely gained a new home, not a domicilium necessarium.

Even assuming for the sake of argument that petitioner gained a new "domicile" after her marriage and only
acquired a right to choose a new one after her husband died, petitioner's acts following her return to the country
clearly indicate that she not only impliedly but expressly chose her domicile of origin (assuming this was lost by
operation of law) as her domicile. This "choice" was unequivocally expressed in her letters to the Chairman of
the PCGG when petitioner sought the PCGG's permission to "rehabilitate (our) ancestral house in Tacloban and
Farm in Olot, Leyte. . . to make them livable for the Marcos family to have a home in our
homeland." 47 Furthermore, petitioner obtained her residence certificate in 1992 in Tacloban, Leyte, while living in
her brother's house, an act which supports the domiciliary intention clearly manifested in her letters to the PCGG
Chairman. She could not have gone straight to her home in San Juan, as it was in a state of disrepair, having
been previously looted by vandals. Her "homes" and "residences" following her arrival in various parts of Metro
Manila merely qualified as temporary or "actual residences," not domicile. Moreover, and proceeding from our
discussion pointing out specific situations where the female spouse either reverts to her domicile of origin or
chooses a new one during the subsistence of the marriage, it would be highly illogical for us to assume that she
cannot regain her original domicile upon the death of her husband absent a positive act of selecting a new one
where situations exist within the subsistence of the marriage itself where the wife gains a domicile different from
her husband.

In the light of all the principles relating to residence and domicile enunciated by this court up to this point, we are
persuaded that the facts established by the parties weigh heavily in favor of a conclusion supporting petitioner's
claim of legal residence or domicile in the First District of Leyte.

II. The jurisdictional issue

Petitioner alleges that the jurisdiction of the COMELEC had already lapsed considering that the assailed
resolutions were rendered on April 24, 1995, fourteen (14) days before the election in violation of Section 78 of
the Omnibus Election Code. 48 Moreover, petitioner contends that it is the House of Representatives Electoral
Tribunal and not the COMELEC which has jurisdiction over the election of members of the House of
Representatives in accordance with Article VI Sec. 17 of the Constitution. This is untenable.

It is a settled doctrine that a statute requiring rendition of judgment within a specified time is generally construed
to be merely directory, 49 "so that non-compliance with them does not invalidate the judgment on the theory that if
the statute had intended such result it would have clearly indicated it." 50 The difference between a mandatory
and a directory provision is often made on grounds of necessity. Adopting the same view held by several
American authorities, this court in Marcelino vs. Cruz held that: 51

The difference between a mandatory and directory provision is often determined on grounds of
expediency, the reason being that less injury results to the general public by disregarding than
enforcing the letter of the law.
In Trapp v. Mc Cormick, a case calling for the interpretation of a statute containing a limitation of
thirty (30) days within which a decree may be entered without the consent of counsel, it was held
that "the statutory provisions which may be thus departed from with impunity, without affecting
the validity of statutory proceedings, are usually those which relate to the mode or time of doing
that which is essential to effect the aim and purpose of the Legislature or some incident of the
essential act." Thus, in said case, the statute under examination was construed merely to be
directory.

The mischief in petitioner's contending that the COMELEC should have abstained from rendering a decision
after the period stated in the Omnibus Election Code because it lacked jurisdiction, lies in the fact that our courts
and other quasi-judicial bodies would then refuse to render judgments merely on the ground of having failed to
reach a decision within a given or prescribed period.

In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in relation to Section 78 of B.P. 881, 52 it is
evident that the respondent Commission does not lose jurisdiction to hear and decide a pending disqualification
case under Section 78 of B.P. 881 even after the elections.

As to the House of Representatives Electoral Tribunal's supposed assumption of jurisdiction over the issue of
petitioner's qualifications after the May 8, 1995 elections, suffice it to say that HRET's jurisdiction as the sole
judge of all contests relating to the elections, returns and qualifications of members of Congress begins only
after a candidate has become a member of the House of Representatives. 53 Petitioner not being a member of
the House of Representatives, it is obvious that the HRET at this point has no jurisdiction over the question.

It would be an abdication of many of the ideals enshrined in the 1987 Constitution for us to either to ignore or
deliberately make distinctions in law solely on the basis of the personality of a petitioner in a case. Obviously a
distinction was made on such a ground here. Surely, many established principles of law, even of election laws
were flouted for the sake perpetuating power during the pre-EDSA regime. We renege on these sacred ideals,
including the meaning and spirit of EDSA ourselves bending established principles of principles of law to deny
an individual what he or she justly deserves in law. Moreover, in doing so, we condemn ourselves to repeat the
mistakes of the past.

WHEREFORE, having determined that petitioner possesses the necessary residence qualifications to run for a
seat in the House of Representatives in the First District of Leyte, the COMELEC's questioned Resolutions dated
April 24, May 7, May 11, and May 25, 1995 are hereby SET ASIDE. Respondent COMELEC is hereby directed
to order the Provincial Board of Canvassers to proclaim petitioner as the duly elected Representative of the First
District of Leyte.

SO ORDERED.
[G.R. No. 135150. July 28, 1999]

ROMEO LONZANIDA, petitioner, vs. THE HONORABLE COMMISSION ON ELECTION and EUFEMIO
MULI, repondents.

DECISION
GONZAGA-REYES, J.:

This petition for certiorari under Rule 65 of the Rules of Court seeks to set aside the resolutions issued by the
COMELEC First Division dated May 21, 1998 and by the COMELEC En Banc dated August 11, 1998 in SPA 98-190
entitled, In the matter of the Petition to Disqualify Mayoralty Candidate Romeo Lonzanida of San Antonio,
Zambales. Eufemio Muli, petitioner, vs. Romeo Lonzanida, respondent. The assailed resolutions declared herein
petitioner Romeo Lonzanida disqualified to run for Mayor in the municipality of San Antonio, Zambales in the May
1998 elections and that all votes cast in his favor shall not be counted and if he has been proclaimed winner the said
proclamation is declared null and void.
Petitioner Romeo Lonzanida was duly elected and served two consecutive terms as municipal mayor of San
Antonio, Zambales prior to the May 8, 1995 elections. In the May 1995 elections Lonzanida ran for mayor of San
Antonio, Zambales and was again proclaimed winner. He assumed office and discharged the duties thereof. His
proclamation in 1995 was however contested by his then opponent Juan Alvez who filed an election protest before the
Regional Trial Court of Zambales, which in a decision dated January 9, 1997 declared a failure of elections. The court
ruled:

PREMISES CONSIDERED, this court hereby renders judgment declaring the results of the election for the office of
the mayor in San Antonio, Zambales last May 8, 1995 as null and void on the ground that there was a failure of
election.

Accordingly, the office of the mayor of the Municipality of San Antonio, Zambales is hereby declared vacant.

Both parties appealed to the COMELEC. On November 13, 1997 the COMELEC resolved the election protest filed by
Alvez and after a revision and re-appreciation of the contested ballots declared Alvez the duly elected mayor of San
Antonio, Zambales by plurality of votes cast in his favor totaling 1,720 votes as against 1,488 votes for Lonzanida. On
February 27, 1998 the COMELEC issued a writ of execution ordering Lonzanida to vacate the post, which obeyed, and
Alvez assumed office for the remainder of the term.
In the May 11, 1998 elections Lonzanida again filed his certificate of candidacy for mayor of San Antonio. On
April 21, 1998 his opponent Eufemio Muli timely filed a petition to disqualify Lonzanida from running for mayor of
San Antonio in the 1998 elections on the ground that he had served three consecutive terms in the same post. On May
13, 1998, petitioner Lonzanida was proclaimed winner. On May 21, 1998 the First Division of the COMELEC issued
the questioned resolution granting the petition for disqualification upon a finding that Lonzanida had served three
consecutive terms as mayor of San Antonio, Zambales and he is therefore disqualified to run for the same post for the
fourth time. The COMELEC found that Lonzanidas assumption of office by virtue of his proclamation in May 1995,
although he was later unseated before the expiration of the term, should be counted as service for one full term in
computing the three term limit under the Constitution and the Local Government Code. The finding of the COMELEC
First Division was affirmed by the COMELEC En Banc in a resolution dated August 11, 1998.
Petitioner Lonzanida challenges the validity of the COMELEC resolutions finding him disqualified to run for
mayor of San Antonio Zambales in the 1998 elections. He maintains that he was duly elected mayor for only two
consecutive terms and that his assumption of office in 1995 cannot be counted as service of a term for the purpose of
applying the three term limit for local government officials, because he was not the duly elected mayor of San Antonio
in the May 1995 elections as evidenced by the COMELEC decision dated November 13, 1997 in EAC no. 6-97 entitled
Juan Alvez, Protestant-Appellee vs. Romeo Lonzanida, Protestee-Appellant, wherein the COMELEC declared Juan
Alvez as the duly elected mayor of San Antonio, Zambales. Petitioner also argues that the COMELEC ceased to have
jurisdiction over the petition for disqualification after he was proclaimed winner in the 1998 mayoral elections; as the
proper remedy is a petition for quo warranto with the appropriate regional trial court under Rule 36 of the COMELEC
Rules of Procedure.
Private respondent Eufemio Muli filed comment to the petition asking this court to sustain the questioned
resolutions of the COMELEC and to uphold its jurisdiction over the petition for disqualification.The private respondent
states that the petition for disqualification was filed on April 21, 1998 or before the May 1998 mayoral elections. Under
section 6, RA 6646 and Rule 25 of the COMELEC Rules of Procedure petitions for disqualification filed with the
COMELEC before the elections and/or proclamation of the party sought to be disqualified may still be herd and decided
by the COMELEC after the election and proclamation of the said party without distinction as to the alleged ground for
disqualification, whether for acts constituting an election offense or for ineligibility. Accordingly, it is argued that the
resolutions of the COMELEC on the merits of the petition for disqualification were issued within the commissions
jurisdiction. As regards the merits of the case, the private respondent maintains that the petitioners assumption of office
in 1995 should be considered as service of one full term because he discharged the duties of mayor for almost three
years until March 1, 1998 or barely a few months before the next mayoral elections.
The Solicitor-General filed comment to the petition for the respondent COMELEC praying for the dismissal of the
petition. The Solicitor-General stressed that section 8, Art. X of the Constitution and section 43 (b), Chapter I of the
Local Government Code which bar a local government official from serving more than three consecutive terms in the
same position speaks of service of a term and so the rule should be examined in this light. The public respondent
contends that petitioner Lonzanida discharged the rights and duties of mayor from 1995 to 1998 which should be counted
as service of one full term, albeit he was later unseated, because he served as mayor for the greater part of the term. The
issue of whether or not Lonzanida served as a de jure or de facto mayor for the 1995-1998 term is inconsequential in
the application of the three term limit because the prohibition speaks of service of a term which was intended by the
framers of the Constitution to foil any attempt to monopolize political power. It is likewise argued by the respondent
that a petition for quo warranto with the regional trial court is proper when the petition for disqualification is filed after
the elections and so the instant petition for disqualification which was filed before the elections may be resolved by the
COMELEC thereafter regardless of the imputed basis of disqualification.
The petitioner filed Reply to the comment. It is maintained that the petitioner could not have served a valid term
from 1995 to 1998 although he assumed office as mayor for that period because he was no t lawfully elected to the said
office. Moreover, the petitioner was unseated before the expiration of the term and so his service for the period cannot
be considered as one full term. As regards the issue of jurisdiction, the petitioner reiterated in his Reply that the
COMELEC ceased to have jurisdiction to hear the election protest after the petitioners proclamation.
The petition has merit.
Section 8, Art. X of the Constitution provides:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law shall
be three years and no such officials shall serve for more than three consecutive terms.Voluntary renunciation of the
office for any length of time shall not be considered as an interruption in the continuity of his service for the full term
for which he was elected.

Section 43 of the Local Government Code (R.A. No. 7160) restates the same rule:

Sec. 43. Term of Office.

(b) No local elective official shall serve for more than three consecutive terms in the same position. Voluntary
renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service
for the full term for which the elective official concerned was elected.

The issue before us is whether petitioner Lonzanidas assumption of office as mayor of San Antonio Zambales from
May 1995 to March 1998 may be considered as service of one full term for the purpose of applying the three-term limit
for elective local government officials.
The records of the 1986 Constitutional Commission show that the three-term limit which is now embodied in
section 8, Art. X of the Constitution was initially proposed to be an absolute bar to any elective local government official
from running for the same position after serving three consecutive terms. The said disqualification was primarily
intended to forestall the accumulation of massive political power by an elective local government official in a given
locality in order to perpetuate his tenure in office. The delegates also considered the need to broaden the choices of the
electorate of the candidates who will run for office, and to infuse new blood in the political arena by disqualifying
officials from running for the same office after a term of nine years. The mayor was compared by some delegates to the
President of the Republic as he is a powerful chief executive of his political territory and is most likely to form a political
dynasty.[1] The drafters however, recognized and took note of the fact that some local government officials run for office
before they reach forty years of age; thus to perpetually bar them from running for the same office after serving nine
consecutive years may deprive the people of qualified candidates to choose from. As finally voted upon, it was agreed
that an elective local government official should be barred from running for the same post after three consecutive
terms. After a hiatus of at least one term, he may again run for the same office.[2]
The scope of the constitutional provision barring elective officials with the exception of barangay officials from
serving more than three consecutive terms was discussed at length in the case of Benjamin Borja, Jr., vs. COMELEC
and Jose Capco, Jr.[3] where the issue raised was whether a vice-mayor who succeeds to the office of the mayor by
operation of law upon the death of the incumbent mayor and served the remainder of the term should be considered to
have served a term in that office for the purpose of computing the three term limit. This court pointed out that from the
discussions of the Constitutional Convention it is evident that the delegates proceeded from the premise that the officials
assumption of office is by reason of election. This Court stated:[4]

Two ideas emerge from a consideration of the proceedings of the Constitutional Commission. The first is the notion of
service of term, derived from the concern about the accumulation of power as a result of a prolonged stay in
office. The second is the idea of election, derived from the concern that the right of the people to choose those whom
they wish to govern them be preserved.

It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so on the assumption that
the officials concerned were serving by reason of election. This is clear from the following exchange in the
Constitutional Commission concerning term limits, now embodied in Art. VI sections 4 and 7 of the Constitution, for
members of Congress:

MR. GASCON. I would like to ask a question with regard to the issue after the second term. We will allow the
Senator to rest for a period of time before he can run again?
MR. DAVIDE. That is correct.
MR. GASCON. And the question that we left behind before-if the Gentlemen will remember-was: How long will
that period of rest be? Will it be one election which is three years or one term which is six years?
MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed the view that during
the election following the expiration of the first 12 years, whether such election will be on the third year or on
the sixth year thereafter, his particular member of the Senate can run. So it is not really a period of hibernation
for six years. That was the Committees stand.
xxxx xxxx xxxx

Second, not only historical examination but textual analysis as well supports the ruling of the COMELEC that Art X,
section 8 contemplates service by local officials for three consecutive terms as a result of election. The first sentence
speaks of the term of office of elective local officials and bars such officials from serving for more than three
consecutive terms. The second sentence, in explaining when an elective official may be deemed to have served his full
term of office, states that voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for which he was elected. The term served must therefore
be one for which the the official concerned was elected. The purpose of the provision is to prevent a circumvention of
the limitation on the number of terms an elective official may serve.

This Court held that two conditions for the application of the disqualification must concur: 1) that the official concerned
has been elected for three consecutive terms in the same local government post and 2) that he has fully served three
consecutive terms. It stated:

To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the
right to serve in the same elective position. Consequently, it is not enough that an individual has served three
consecutive terms in an elective local office, he must also have been elected to the same position for the same number
of times before the disqualification can apply.

It is not disputed that the petitioner was previously elected and served two consecutive terms as mayor of San
Antonio Zambales prior to the May 1995 mayoral elections. In the May 1995 elections he again ran for mayor of San
Antonio, Zambales and was proclaimed winner. He assumed office and discharged the rights and duties of mayor until
March 1998 when he was ordered to vacate the post by reason of the COMELEC decision dated November 13, 1997 on
the election protest against the petitioner which declared his opponent Juan Alvez, the duly elected mayor of San
Antonio. Alvez served the remaining portion of the 1995-1998 mayoral term.
The two requisites for the application of the three term rule are absent. First, the petitioner cannot be considered as
having been duly elected to the post in the May 1995 elections, and second, the petitioner did not fully serve the 1995-
1998 mayoral term by reason of involuntary relinquishment of office. After a re-appreciation and revision of the
contested ballots the COMELEC itself declared by final judgment that petitioner Lonzanida lost in the May 1995
mayoral elections and his previous proclamation as winner was declared null and void. His assumption of office as
mayor cannot be deemed to have been by reason of a valid election but by reason of a void proclamation. It has been
repeatedly held by this court that a proclamation subsequently declared void is no proclamation at all[5] and while a
proclaimed candidate may assume office on the strength of the proclamation of the Board of Canvassers he is only a
presumptive winner who assumes office subject to the final outcome of the election protest.[6] Petitioner Lonzanida did
not serve a term as mayor of San Antonio, Zambales from May 1995 to March 1998 because he was not duly elected to
the post; he merely assumed office as presumptive winner, which presumption was later overturned by the COMELEC
when it decided with finality that Lonzanida lost in the May 1995 mayoral elections.
Second, the petitioner cannot be deemed to have served the May 1995 to 1998 term because he was ordered to
vacate his post before the expiration of the term. The respondents contention that the petitioner should be deemed to
have served one full term from May 1995-1998 because he served the greater portion of that term has no legal basis to
support it; it disregards the second requisite for the application of the disqualification, i.e., that he has fully served three
consecutive terms. The second sentence of the constitutional provision under scrutiny states, Voluntary renunciation of
office for any length of time shall not be considered as an interruption in the continuity of service for the full term for
which he was elected. The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term
limit by a voluntary renunciation of office and at the same time respect the peoples choice and grant their elected official
full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term
in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of
the full term porvided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few
months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ
of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of
continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term.
In sum, the petitioner was not the duly elected mayor and that he did not hold office for the full term; hence, his
assumption of office from May 1995 to March 1998 cannot be counted as a term for purposes of computing the three
term limit. The Resolution of the COMELEC finding him disqualified on this ground to run in the May 1998 mayoral
elections should therefore be set aside.
The respondents harp on the delay in resolving the election protest between petitioner and his then opponent Alvez
which took roughly about three years and resultantly extended the petitioners incumbency in an office to which he was
not lawfully elected. We note that such delay cannot be imputed to the petitioner. There is no specific allegation nor
proof that the delay was due to any political maneuvering on his part to prolong his stay in office. Moreover, protestant
Alvez, was not without legal recourse to move for the early resolution of the election protest while it was pending before
the regional trial court or to file a motion for the execution of the regional trial courts decision declaring the position of
mayor vacant and ordering the vice-mayor to assume office while the appeal was pending with the COMELEC. Such
delay which is not here shown to have been intentionally sought by the petitioner to prolong his stay in office cannot
serve as basis to bar his right to be elected and to serve his chosen local government post in the succeeding mayoral
election.
The petitioners contention that the COMELEC ceased to have jurisdiction over the petition for disqualification
after he was proclaimed winner is without merit. The instant petition for disqualification was filed on April 21, 1998 or
before the May 1998 elections and was resolved on May 21, 1998 or after the petitioners proclamation. It was held in
the case of Sunga vs. COMELEC and Trinidad[7] that the proclamation nor the assumption of office of a candidate
against whom a petition for disqualification is pending before the COMELEC does not divest the COMELEC of
jurisdiction to continue hearing the case and to resolve it on the merits.
Section 6 of RA 6646 specifically mandates that:

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.

This court held that the clear 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. The outright dismissal of the petition for
disqualification filed before the election but which remained unresolved after the proclamation of the candidate sought
to be disqualified will unduly reward the said candidate and may encourage him to employ delaying tactics to impede
the resolution of the petition until after he has been proclaimed.
The court stated:

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 signified that this requirement of the law is
mandatory, operating to impose a positive duty which must be enforced. Theimplication 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 vs. Duavit in
effect disallows what R. A. No. 6646 imperatively requires. This amounts to a quasi-judicial legislation by the
COMELEC which cannot be countenanced and is invalid for having been issued beyond the scope of its
authority. Interpretative rulings of quasi-judicial bodies or administrative agencies must always be in perfect harmony
with statutes and should be for the sole purpose of carrying their general provisions into effect. By such interpretative
or administrative rulings, of course, the scope of the law itself cannot be limited. Indeed, a quasi-judicial body or an
administrative agency for that matter cannot amend an act of Congress.Hence, in case of a discrepancy between the
basic law and an interpretative or administrative ruling, the basic law prevails.

Besides, the deleterious effect of the Silvestre ruling is not difficult to forsee. A candidate guilty of election offenses
would be undeservedly rewarded, instead of punished, by the dismissal of thedisqualification 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.

The fact that Trinidad was already proclaimed and had assumed the position of mayor did not divest the COMELEC
of authority and jurisdiction to continue the hearing and eventually decide the disqualification case. In Aguam v.
COMELEC this Court held-

Time and again this Court has given its imprimatur on the principle that COMELEC is with authority to annul any
canvass and proclamation which was illegally made. The fact that a candidate proclaimed has assumed office, we have
said, is no bar to the exercise of such power. It of course may not be availed of where there has been a valid
proclamation. Since private respondents petition before the COMELEC is precisely directed at the annulment of the
canvass and proclamation, we perceive that inquiry into this issue is within the area allocated by the Constitution and
law to COMELEC xxx Really, were a victim of a proclamation to be precluded from challenging the validity thereof
after that proclamation and the assumption of office thereunder, baneful effects may easily supervene.

It must be emphasized that the purpose of a disqualification proceeding is to prevent the candidate from running or, if
elected. From serving, or to prosecute him for violation of the election laws. Obviously, the fact that a candidate has
been proclaimed elected does not signify that his disqualification is deemed condoned and may no longer be the
subject of a separate investigation.

ACCORDINGLY, the petition is granted. The assailed resolutions of the COMELEC declaring petitioner
Lonzanida disqualified to run for mayor in the 1998 mayoral elections are hereby set aside.
SO ORDERED.
[G.R. No. 135691. September 27, 1999]

EMMANUEL SINACA, petitioner, vs. MIGUEL MULA and COMMISSION ON ELECTIONS, respondents.

DECISION
DAVIDE, JR., C.J.:

Before us is a special civil action for certiorari, mandamus and prohibition, with a prayer for preliminary injunction
and/or temporary restraining order assailing the Resolution of 6 October 1998, of respondent Commission on Elections
(hereafter COMELEC) in SPA No. 98-292, declaring as invalid the substitution of mayoralty candidate Teodoro F.
Sinaca, Jr. by herein petitioner Emmanuel D. Sinaca.[1]
The records disclose that in the 11 May 1998 elections, the two opposing factions of the ruling party LAKAS-
NUCD-UMPD (hereafter LAKAS) filled in separate candidates for the position of mayor of the Municipality of
Malimano, Surigao del Norte. One faction headed by Robert Z. Barbers (hereafter BARBERS Wing) nominated Grachil
G. Canoy (hereafter CANOY), while the other group lead by Francisco T. MATUGAS (hereafter MATUGAS Wing)
endorsed the candidacy of Teodoro F. Sinaca, Jr. (hereafter TEODORO).
Miguel H. Mula (hereafter MULA), a candidate for vice-mayor and belonging to the BARBERS Wing, filed before
the COMELEC a petition for disqualification against TEODORO which was docketed as SPA 98-021. On 8 May 1998,
the Second Division of the COMELEC issued a resolution disqualifying TEODORO as candidate for mayor of the
Municipality of Malimono, Surigao del Norte and ordering the cancellation of his certificate of candidacy because of
prior conviction of bigamy, a crime involving moral turpitude.[2]
On 10 May 1998, TEODORO filed a motion for reconsideration of the aforesaid resolution. On even date, herein
petitioner Emmanuel D. Sinaca, (hereafter EMMANUEL), an independent candidate, withdrew his certificate of
candidacy for Sangguniang Bayan Member, joined and became a member of the LAKAS party and was nominated by
the LAKAS MATUGAS Wing as the substitute mayoralty candidate for the Municipality of Malimono, Surigao del
Norte. On the basis of said nomination, EMMANUEL filed his certificate of candidacy[3] attached thereto is his
certificate of nomination as LAKAS mayoralty candidate signed by Governor Francisco T. MATUGAS (hereafter
MATUGAS), as party provincial chairman together with EMMANUEls written acceptance of the partys nomination.[4]
On 11 May 1998, MULA filed through mail another petition for disqualification, this time against EMMANUEL,
which was received by the COMELEC on 14 May 1998 and was docketed as SPA No. 98-292. In his petition MULA
contended that the nomination of EMMANUEL as substitute candidate is illegal on the following grounds:
a) The substitute, before he filed his Certificate of Candidacy as LAKAS candidate, was an independent
candidate. Being so, he cannot rightfully substitute the disqualified one;
b) The nomination of respondent substitute bears only the approval of Provincial Chairman Matugas and
without consultation and consent of the higher political hierarchy especially Mr. Robert Ace Barbers who
has also a say on nomination of candidates within his jurisdiction, as evidenced by an authority hereto
attached as Annex E;
c) Substitution generally takes place when by reason of a candidates disqualification the party to which he
belongs loses such representation. In the instant case, the disqualification did not at all prejudice LAKAS
NUCD-UMDP because Mr. Garchil G. Canoy is still there representing the party after the
disqualification. The substitution is a redundancy and not necessary under the circumstances, more so that
it was done with malice and without the required consensus of the political hierarchy.[5]
In his answer, EMMANUEL moved for the dismissal of the petition for the following reasons:
a) The petition does not state a cause of action as it is not based on any of the grounds for disqualification as
provided under Sec. 68 of the Omnibus Election Code and Sec. 40(A) of the Local Government Code of
1991;
b) The issue of who in LAKAS has the authority to nominate candidates for local officials, is an intra-party
matter hence beyond the jurisdiction of the Comelec;
c) Gov. Matugas was duly authorized by LAKAS as its Provincial Chairman and official candidate for
Provincial Governor to nominate the partys local candidates; and
d) The petition is already moot and academic because of the proclamation of EMMANUEL as mayor of the
Municipality of Malimono, Surigao del Norte.[6]
On 28 May 1998, the COMELEC Second Division dismissed the petition for disqualification and upheld the
candidacy for mayor of EMMANUEL.[7] The pertinent part of the resolution reads:

It is therefore clear, that candidate for governor Matugas was clothed with the authority to nominate the respondent as
substitute candidate for the position of mayor of Malimono, Surigao del Norte, vice the disqualified candidate,
Apropos thereto, Section 77 of the Omnibus Election Code states:

xxx

Considering that on May 10, 1998 the proper nomination was issued by the official of the party authorized therefor, it
stands to reason that the substitution was valid, respondent having accepted the nomination and his certificate of
candidacy dated May 10, 1998, correspondingly filed.

Respondent is correct in stating that the question of nomination is a party concern which is beyond the ambit of the
Commission. What matters is, the candidate has been certified as a party member and the nomination duly issued in
his favor.

Be that as it may, the petition is rendered moot and academic by the proclamation of respondent on May 12, 1998, as
evidenced by the certificate of canvass and proclamation of winning candidates for municipal offices with SN
16671298 and his oath of office dated May 13, 1998, which forms part of the record of this case.

WHEREFORE, premises considered, the Commission (Second Division) RESOLVES to DISMISS the instant petition
for lack of merit.

MULA filed a motion for reconsideration raising in the main that the signature alone of MATUGAS in the
nomination was not sufficient because the partys authority to nominate was given to both MATUGAS and Senator
Robert S. Barbers (hereafter BARBERS), in their joint capacity, and that the nomination of EMMANUEL is void since
he was an independent candidate prior to his nomination.[8]
On 6 October 1998, the COMELEC en banc issued a Resolution[9] which set aside the resolution dated 28 May
1998 of the Second Division and disqualified EMMANUEL, for the following reasons:

In the motion for reconsideration, petitioner argues that the signature only of Governor Matugas in the nomination was
not sufficient because the partys authority to nominate was given to both Governor Matugas and Senator Robert
Barbers, in their joint capacity.

We do not have to resolve this issue because the more important issue is whether respondent is disqualified as a
substitute candidate. He was an independent candidate for councilor at the time he filed his certificate of candidacy for
mayor as a substitute of a disqualified candidate. Thus, he did not belong to the same political party as the substituted
candidate.

We sustain petitioners position. We declare that the substitution of disqualified mayoralty candidate Teodoro F.
Sinaca, Jr. by respondent Emmanuel D. Sinaca was not valid because the latter was an independent candidate for
councilor prior to his nomination as substitute candidate in place of the withdrawing candidate who was a Lakas party
member.

IN VIEW WHEREOF, the Commission en banc hereby resolves to SET ASIDE the Commission (Second Division)s
resolution dated May 28, 1998. We declare Emmanuel D. Sinaca DISQUALIFIED to be a substitute candidate for
mayor of Malimono, Surigao del Norte, and ANNUL his proclamation as such being void ab initio. Upon finality of
this resolution, he is ordered to vacate the position of mayor of the municipality of Malimono, Surigao del Norte, to
which the vice-mayor elected in the May 11, 1998 elections shall succeed by operation of law.

Not satisfied therewith, EMMANUEL is now before us alleging that the COMELEC committed grave abuse of
discretion in issuing the assailed Resolution. EMMANUEL principally contends that his nomination as a substitute
candidate was regular and valid hence, his proclamation as mayor of the Municipality of Malimono, Surigao del Norte
must be upheld.
In the assailed resolution, the COMELEC disqualified EMMANUEL solely on the basis that he was an independent
candidate prior to his nomination as a substitute candidate.
The rule on substitution of an official candidate of a registered or accredited political party who dies, withdraws or
is disqualified for any cause after the last day for the filing of certificates of candidacy is governed by Sec. 77 of the
Omnibus Election Code which provides:

If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political
party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political
party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The
substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office
affected in accordance with the preceding sections not later than mid-day of the day of the election. If the death,
withdrawal or disqualification should occur between the day before the election and mid-day of election day, said
certificate maybe filed with any board of election inspectors in the political subdivision where he is a candidate, or, in
the case of candidates to be voted for by the entire electorate of the country, with the Commission.

Thus, under the said provision it is necessary, among others, that the substitute candidate must be of the same
political party as the original candidate and must be duly nominated as such by the political party.
In the instant case, there was substantial compliance with the above said requirements. EMMANUEL was properly
nominated as substitute candidate by the LAKAS party MATUGAS wing to which TEODORO, the disqualified
candidate, belongs, as evidenced by the Certificate of Nomination and Acceptance signed by MATUGAS, the Partys
provincial chairman.[10] That EMMANUEL is a bona fidemember of the LAKAS party is shown not only by the
certificate of membership,[11] which is being controverted for having been presented as new evidence for the first time
before this court, but more importantly by his certificate of candidacy filed before the COMELEC stating therein that
he belongs to the LAKAS party.[12]
A certificate of candidacy is in the nature of a formal manifestation to the whole world of the candidates political
creed or lack of political creed.[13] It is a statement of a person seeking to run for a public office certifying that he
announces his candidacy for the office mentioned and that he is eligible for the office, the name of the political party to
which he belongs, if he belongs to any, and his post-office address for all election purposes being as well stated.[14]
The certificate of candidacy of EMMANUEL permitted the placing of his name before the electorate. It constituted
an authorized badge, which the voter could scrutinize before casting his ballot. Thus, with the declaration of
EMMANUEL in his certificate of candidacy that he is affiliated with the LAKAS party, he was effectively voted by the
electorate not as an independent candidate, but as a member of the LAKAS party. His allegation in the certificate of
candidacy as to political party to which he belongs is sufficient to make the electorate conscious of the platform of the
said political party.[15]
The fact that EMMANUEL was an independent candidate prior to his nomination is immaterial. What is more
significant is that he had previously withdrawn his certificate of candidacy as independent candidate for Sangguniang
member before he filed his certificate of candidacy as a substitute for TEODORO at which time he was, for all intents
and purposes, already deemed a member of the LAKAS party MATUGAS wing. As such, EMMANUEL is obliged to
pursue and carry out the partys ideology, political ideas and platforms of government. As the official candidate of an
organized political party, he is bound by the partys rule. He owes loyalty to the party, its tenet and its policies, its
platforms and programs of government. To the electorate he represents the party, its principles, ideals and objectives.[16]
Even the fact that EMMANUEL only became a member of the LAKAS party after the disqualification of
TEODORO, will not affect the validity of the substitution. There is nothing in the Constitution or the statute which
requires as a condition precedent that a substitute candidate must have been a member of the party concerned for a
certain period of time before he can be nominated as such. Section 77 of the Omnibus Election Code only mandates that
a substitute candidate should be a person belonging to and certified by the same political party as the candidate to be
replaced. We cannot provide for an additional requirement or condition not provided under the said provision without
encroaching into the domain of the legislative department.
As aptly observed by Commissioner Teresita Dy-Liacco Flores in her dissenting opinion, to wit:

x x x. With due respect to the majority opinion, I find that at the time the substitute candidate filed his certificate of
candidacy for mayor and at the time of his election as such, he was an independent candidate no more. He was, at that
time, a nominee of the LAKAS NUCD-UMDP Political Party. This fact is evidenced by the Certificate of Nomination
and Acceptance dated 10 May 1998 executed by the Provincial Chairman of the said party of Surigao del Norte and by
herein respondent. This certificate presupposes that respondent is a bonafide member of the said party. To rule that
respondent was still an independent candidate and not a member of the LAKAS NUCD-UMDP political party at the
time of filing his certificate of candidacy as a substitute candidate for mayor is to arrogate upon this Commission what
would have been the sole and exclusive prerogative of any political organization -- to determine party membership and
its nominees to elective positions. It is an accepted fact that, in this country, politicians switch party affiliations more
frequently than the ebb and flow of the tides.[17]

The argument advanced by private respondent MULA that MATUGAS has no authority to nominate a candidate
without the concurrence of BARBERS is devoid of merit.
Firstly, MATUGAS, was designated by the LAKAS National Headquarters through its Deputy Secretary General
and National Secretariat Executive Director Reynaldo L. Maclang, as the party officer authorized to nominate, sign,
attest under oath, and issue Certificates of Nomination and Acceptance for the Partys official candidates for the positions
of Board Members, City Councilors, Municipal Mayors, Vice-mayors and councilors for the Province of Surigao del
Norte.[18]
This authorization which was dated March 26, 1998 replaced and/or modified the former authorization given by
the party to both BARBERS and MATUGAS.[19] Both BARBERS and MATUGAS were given separate and distinct
authorizations when the mother of BARBERS ran for governor against MATUGAS.
Secondly, there are only two official candidates for mayor of Malimono, Surigao del Norte, namely TEODORO
and CANOY,[20] both of whom are members of the LAKAS party but from different factions. TEODORO was indorsed
by the MATUGAS wing and CANOY by the BARBERS Wing. The certificates of candidacy of these candidates were
never questioned despite the fact that they belong to the same political party and were separately and independently
endorsed by either BARBERS or MATUGAS. Therefore, if the absence of a joint nomination is to be considered fatal
to the validity of the certificate of candidacy of TEODORO or CANOY, then there would in effect no candidates running
for mayor in the Municipality of Malimono, Surigao del Norte.
Verily, it stands to reason that with the disqualification of TEODORO, who is a member of the LAKAS
MATUGAS wing, the substitute must come from the same faction as the candidate to be substituted and since it was
MATUGAS who indorsed the nomination of TEODORO, then MATUGAS nomination of EMMANUEL in substitution
of TEODORO is sufficient and in order.
There is also no irregularity in the act of EMMANUEL in joining a political party. The right of individuals to form
an association as guaranteed by the fundamental law includes the freedom to associate or refrain from association.[21] No
man is compelled by law to become a member of a political party; or after having become such, to remain a member. He
may join such a party for whatever reason seems good to him, and may quit the party for any cause, good, bad, or
indifferent, or without cause.[22] The decision of a candidate on whether to run as an independent candidate or to join a
political party, group or aggrupation is left entirely to his discretion.[23]
We also agree with the contention of EMMANUEL that the decision as to which member a party shall nominate
as its candidate is a party concern which is not cognizable by the courts.
A political party has the right to identify the people who constitute the association and to select a standard bearer
who best represents the partys ideologies and preference.[24] Political parties are generally free to conduct their internal
affairs free from judicial supervision; this common-law principle of judicial restraint, rooted in the constitutionally
protected right of free association, serves the public interest by allowing the political processes to operate without undue
interference.[25] Thus, the rule is that the determination of disputes as to party nominations rests with the party, in the
absence of statutes giving the courts jurisdiction.[26]
Quintessentially, where there is no controlling statute or clear legal right involved, the court will not assume
jurisdiction to determine factional controversies within a political party, but will leave the matter for determination
by the proper tribunals of the party itself or by the electors at the polls.[27] Similarly, in the absence of specific
constitutional or legislative regulations defining how nominations are to be made, or prohibiting nominations from being
made in certain ways, political parties may handle party affairs, including nominations, in such manner as party rules
may establish.[28]
An election in which the voters have fully, fairly, and honestly expressed their will is not invalid even though an
improper method is followed in the nomination of candidates.[29] This is because in determining the effect of a particular
irregularity in a party nomination for office on the result of the general election, the pivotal issue is whether the
irregularity complained of has prevented a full, fair, and free expression of the public will. Thus, in the absence of a
statutory provision to the contrary, an election may not even be invalidated by the fact that the nomination of the
successful candidate was brought about by fraud, and not in the manner prescribed by the statute, provided it appears
that noncompliance with the law did not prevent a fair and free vote.[30]
None of the situations adverted to above are obtaining in the case at bar as to warrant this Courts intervention in
ascertaining the propriety of EMMANUELs nomination as a substitute candidate by the LAKAS MATUGAS wing.
Finally, the issue as to the validity of EMMANUELs nomination as substitute candidate has been rendered moot
and academic by his proclamation on May 12, 1998, by the Board of Canvassers of Malimono as the duly elected
municipal mayor and after he has assumed into office. The fact that the nomination of a substitute lacks the signature of
one of the authorized signatory is but a technicality which cannot be used to frustrate the will of the electorate.
It has been held that the provisions of the election law regarding certificates of candidacy, such as signing and
swearing on the same, as well as the information required to be stated therein, are considered mandatory prior to the
elections. Thereafter, they are regarded as merely directory. With respect to election laws, it is an established rule of
interpretation that mandatory provisions requiring certain steps before election will be construed as directory after the
elections, to give effect to the will of the electorate. Thus, even if the certificate of candidacy was not duly signed or if
it does not contain the required data, the proclamation of the candidate as winner may not be nullified on such
ground. The defects in the certificate should have been questioned before the election; they may not be questioned after
the election without invalidating the will of the electorate, which should not be done.[31] In Guzman v. Board of
Canvassers,[32] the Court held that the will of the people cannot be frustrated by a technicality that the certificate of
candidacy had not been properly sworn to. This legal provision is mandatory and non-compliance therewith before the
election would be fatal to the status of the candidate before the electorate, but after the people have expressed their will,
the result of the election cannot be defeated by the fact that the candidate has not sworn to his certificate of candidacy.
Thus, were a candidate has received popular mandate, overwhelmingly and clearly expressed, all possible doubts
should be resolved in favor of the candidates eligibility for to rule otherwise is to defeat the will of the people.[33] Above
and beyond all, the determination of the true will of the electorate should be paramount. It is their voice, not ours or of
anyone else, that must prevail. This, in essence, is the democracy we continue to hold sacred.[34]
WHEREFORE, the petition is GRANTED. The assailed resolution of 6 October 1998 of the COMELEC en
banc is hereby REVERSED and SET ASIDE and another one rendered declaring EMMANUEL SINACA as having
been duly elected mayor of the Municipality of Malimono, Surigao del Norte.
SO ORDERED.
[G.R. No. 136351. July 28, 1999]

JOEL G. MIRANDA, petitioner, vs. ANTONIO M. ABAYA and the COMMISSION ON


ELECTIONS, respondents.

DECISION
MELO, J.:

Before us is a petition for certiorari with prayer for the issuance of a temporary restraining order and/or writ of
preliminary injunction questioning the resolution of the Comelec En Banc dated December 8, 1998 in SPA Case No.
98-288 which disposed:
ACCORDINGLY, judgment is hereby rendered to:

1. AMEND and RECTIFY the dispositive portion of the Resolution of the Commission (First Division) in SPA No.
98-019 promulgated on May 5, 1998, to read as follows:

WHEREFORE, in view of the foregoing, the Commission (First Division) GRANTS the Petition. Respondent JOSE
PEMPE MIRANDAs certificate of candidacy for the position of mayor of Santiago City in the May 11, 1998 national
and local elections is hereby DENIED DUE COURSE AND/OR CANCELLED.

SO ORDERED.

2. ANNUL the election and proclamation of respondent JOEL G. MIRANDA as mayor of Santiago City in the May
11, 1998 election and CANCEL the Certificate of Canvass and Proclamation (C.E. form 25) issued therefor;

3. DIRECT THE City board of Canvassers of Santiago City to RECONVENE, PREPARE a new certificate of canvass
& proclamation and PROCLAIM the winning candidate among those voted upon as the duly elected mayor of
Santiago City in the May 11, 1998 election; and

4. DIRECT the Clerk of Court of the Commission to furnish copies of this Decision to the Office of the President of
the Philippines; the Department of Interior and Local Government; the Department of Finance, and the Secretary of
the Sangguniang Panglunsod of Santiago City.

SO ORDERED.

(pp. 90-91, Rollo.)

The aforementioned resolution dated December 8, 1998 reversed and set aside the earlier resolution of the First
Division of the Comelec dated May 16, 1998, dismissing private respondents petition to declare the substitution of Jose
Pempe Miranda by petitioner as candidate for the City of Santiagos mayoralty post void.
Briefly, the pertinent factual backdrop is summarized as follows:
On March 24, 1998, Jose Pempe Miranda, then incumbent mayor of Santiago City, Isabela, filed his certificate of
candidacy for the same mayoralty post for the synchronized May 11, 1998 elections.
On March 27, 1998, private respondent Antonio M. Abaya filed a Petition to Deny Due Course to and/or Cancel
Certificate of Candidacy (pp. 26-33, Rollo), which was docketed as SPA No. 98-019. The petition was GRANTED by
the Comelec in its resolution dated May 5, 1998 (pp. 36-43, Rollo). The Comelec further ruled to DISQUALIFY Jose
Pempe Miranda.
On May 6, 1998, way beyond the deadline for filing a certificate of candidacy, petitioner Joel G. Miranda filed his
certificate of candidacy for the mayoralty post, supposedly as a substitute for his father, Jose Pempe Miranda.
During the May 11, 1998 elections, petitioner and private respondent vied for the mayoralty seat, with petitioner
garnering 22,002 votes, 1,666 more votes than private respondent who got only 20, 336 votes.
On May 13, 1998, private respondent filed a Petition to Declare Null and Void Substitution with Prayer for Issuance
of Writ of Preliminary Injunction and/or Temporary Restraining Order, which was docketed as SPA No. 98-288. He
prayed for the nullification of petitioners certificate of candidacy for being void ab initio because the certificate of
candidacy of Jose Pempe Miranda, whom petitioner was supposed to substitute, had already been cancelled and denied
due course.
On May 16, 1998, Comelecs First Division dismissed SPA No. 98-288 motu proprio (pp. 57-61, Rollo). Private
respondent moved for reconsideration (pp. 62-72, Rollo). On December 8, 1998, the Comelec En Banc rendered the
assailed decision aforequoted, resolving to GRANT the motion for reconsideration, thus nullifying the substitution by
petitioner Joel G. Miranda of his father as candidate for the mayoralty post of Santiago City.
On December 9, 1998, petitioner sought this Courts intercession via a petition for certiorari, with prayer for the
issuance of a temporary restraining order and/or writ of preliminary injunction. On December 11, 1998, the Court
resolved to issue a temporary restraining order and to require respondents to comment on the petition. On December 14,
1998, private respondent filed his Comment (pp. 140-187 and 188-234, Rollo) and on February 16, 1999, the Comelec,
through its counsel, the Solicitor General, filed its Comment (pp. 254-265, Rollo). The Court required petitioner to file
a consolidated reply within 10 days from notice, but petitioner twice asked for an extension of the period. Without
granting the motions for extension of time to file consolidated reply, the Court decided to resolve the controversy in
favor of petitioner.
Tersely, the issues in the present case may be summarized as follows:
1. Whether the annulment of petitioners substitution and proclamation was issued without jurisdiction and/or
with grave abuse of discretion amounting to lack of jurisdiction; and
2. Whether the order of the Comelec directing the proclamation of the private respondent was issued with
grave abuse of discretion amounting to lack of jurisdiction.
The Court finds neither lack of jurisdiction nor grave abuse of discretion attended the annulment of the substitution
and proclamation of petitioner.
On the matter of jurisdiction, there is no question that the case at hand is within the exclusive original jurisdiction
of the Comelec. As early as in Herrera vs. Baretto (25 Phil. 245 [1913]), this Court had occasion to apply the following
principles:

Jurisdiction is the authority to hear and determine a causethe right to act in a case. Since it is the power to hear and
determine, it does not depend either upon the regularity of the exercise of that power or upon the rightfulness of the
decision made. Jurisdiction should therefore be distinguished from the exercise of jurisdiction. The authority to decide
a cause at all, and not the decision rendered therein, is what makes up jurisdiction. Where there is jurisdiction over the
subject matter, as we have said before, the decision of all other questions arising in the case is but an exercise of that
jurisdiction.

(p. 251)

On the issue of soundness of the disposition in SPA No. 98-288, the Court finds that the Comelecs action nullifying
the substitution by and proclamation of petitioner for the mayoralty post of Santiago City, Isabela is proper and legally
sound.
Petitioner insists that the substitution at bar is allowed under Section 77 of the Omnibus Election Code which
provides:

SEC. 77. Candidates in case of death, disqualification or withdrawal. If after the last day for the filing of certificates
of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for
any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to
replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political
party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections
not later than mid-day of the day of the election. If the death, withdrawal or disqualification should occur between the
day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors
in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate
of the country, with the Commission.

Petitioner capitalizes on the fact that the Comelec ruled to disqualify Jose Pempe Miranda in the May 5, 1998
resolution and he heavily relies upon the above-quoted provision allowing substitution of a candidate who has been
disqualified for any cause.
While there is no dispute as to whether or not a nominee of a registered or accredited political party may substitute
for a candidate of the same party who had been disqualified for any cause, this does not include those cases where the
certificate of candidacy of the person to be substituted had been denied due course and cancelled under Section 78 of
the Code.
Expressio unius est exclusio alterius. While the law enumerated the occasions where a candidate may be validly
substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial
and cancellation of his certificate of candidacy. Under the foregoing rule, there can be no valid substitution for the latter
case, much in the same way that a nuisance candidate whose certificate of candidacy is denied due course and/or
cancelled may not be substituted. If the intent of the lawmakers were otherwise, they could have so easily and
conveniently included those persons whose certificates of candidacy have been denied due course and/or cancelled under
the provisions of Section 78 of the Code.
More importantly, under the express provisions of Section 77 of the Code, not just any person, but only an official
candidate of a registered or accredited political party may be substituted. In Bautista vs. Comelec (G.R. No. 133840,
November 13, 1998) this Court explicitly ruled that a cancelled certificate does not give rise to a valid
candidacy (p.13).
A person without a valid certificate of candidacy cannot be considered a candidate in much the same way as any
person who has not filed any certificate of candidacy at all can not, by any stretch of the imagination, be a candidate at
all.
The law clearly provides:

SEC. 73. Certificate of candidacy No person shall be eligible for any elective public office unless he files a sworn
certificate of candidacy within the period fixed herein.

By its express language, the foregoing provision of law is absolutely mandatory. It is but logical to say that any person
who attempts to run for an elective office but does not file a certificate of candidacy, is not a candidate at all. No
amount of votes would catapult him into office. In Gador vs. Comelec (95 SCRA 431 [1980]), the Court held that a
certificate of candidacy filed beyond the period fixed by law is void, and the person who filed it is not, in law, a
candidate. Much in the same manner as a person who filed no certificate of candidacy at all and a person who filed it
out of time, a person whose certificate of candidacy is cancelled or denied due course is no candidate at all. No
amount of votes should entitle him to the elective office aspired for.

The evident purposes of the law in requiring the filing of certificates of candidacy and in fixing the time limit
therefor are: (a) to enable the voters to know, at least sixty days before the regular election, the candidates among whom
they are to make the choice, and (b) to avoid confusion and inconvenience in the tabulation of the votes cast. For if the
law did not confine the choice or election by the voters to the duly registered candidates, there might be as many persons
voted for as there are voters, and votes might be cast even for unknown or fictitious persons as a mark to identify the
votes in favor of a candidate for another office in the same election. (Monsale vs. Nico, 83 Phil. 758 [1949])
It is at once evident that the importance of a valid certificate of candidacy rests at the very core of the electoral
process. It cannot be taken lightly, lest there be anarchy and chaos. Verily, this explains why the law provides for
grounds for the cancellation and denial of due course to certificates of candidacy.
After having considered the importance of a certificate of candidacy, it can be readily understood why
in Bautista we ruled that a person with a cancelled certificate is no candidate at all. Applying this principle to the case
at bar and considering that Section 77 of the Code is clear and unequivocal that only an official candidate of a registered
or accredited party may be substituted, there demonstrably cannot be any possible substitution of a person whose
certificate of candidacy has been cancelled and denied due course.
Also, under ejusdem generis rule, where a general word or phrase (such as disqualification for any cause in this
case) follows an enumeration of particular and specific words of the same class (such as the words dies and withdraws
in the instant case) or where the latter follow the former, the general word or phrase is to be construed to include, or to
be restricted to persons, things or cases akin to, resembling, or of the same kind or class as those specifically mentioned
(see: Vera vs. Cuevas, 90 SCRA 379 [1979]). A deceased candidate is required to have duly filed a valid certificate of
candidacy, otherwise his political party would not be allowed to field a substitute candidate in his stead under Section
77 of the Code. In the case of withdrawal of candidacy, the withdrawing candidate is required to have duly filed a valid
certificate of candidacy in order to allow his political party to field a substitute candidate in his stead. Most reasonable
it is then, under the foregoing rule, to hold that a valid certificate of candidacy is likewise an indispensable requisite in
the case of a substitution of a disqualified candidate under the provisions of Section 77 of the Code, just as it is in the
two previous instances.
Furthermore, interpretatio talis in ambiguis semper freinda est, ut eviatur inconveniens et absurdum, meaning,
where there is ambiguity, such interpretation as will avoid inconvenience and absurdity shall in all cases be adopted. To
include those disqualified candidates whose certificate of candidacy had likewise been denied due course and/or
cancelled among those who may be substituted under Section 77 of the Omnibus Election Code, leads to the absurdity
where a substitute is allowed to take the place of somebody who had not been a candidate in the first placea person who
did not have a valid certificate of candidacy prior to substitution. Nemo dat quod non habet. What right can a non-
candidate pass on to his substitute? Clearly, there is none because no one can give what he does not have.
Even on the most basic and fundamental principles, it is readily understood that the concept of a substitute
presupposes the existence of the person to be substituted, for how can a person take the place of somebody who does
not exist or who never was. The Court has no other choice but to rule that in all the instances enumerated in Section 77
of the Omnibus Election code, the existence of a valid certificate of candidacy seasonably filed is a requisite sine qua
non.
All told, a disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place
because, if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy, he is and was
not a candidate at all. If a person was not a candidate, he cannot be substituted under Section 77 of the Code. Besides,
if we were to allow the so-called substitute to file a new and original certificate of candidacy beyond the period for the
filing thereof, it would be a crystalline case of unequal protection of the law, an act abhorred by our Constitution.
From the foregoing discussion it is evident that the controversy at hand is not a simple case of hair-splitting. A
candidate may not be qualified to run for election but may have filed a valid certificate of candidacy. Another candidate
may likewise be not qualified and at the same time not have a valid certificate of candidacy, for which reason, said
certificate of candidacy is also cancelled and/or denied due course. Or, a third candidate may be qualified but, his
certificate of candidacy may be denied due course and/or cancelled. This is possible because the grounds for
disqualification (see: Omnibus Election Code, Section 68 Disqualifications) are totally separate and distinct from the
grounds for cancellation and/or denying due course to a certificate of candidacy (Ibid., Section 69 nuisance candidates;
and Section 78 material misrepresentation). Only the candidate who had a valid certificate of candidacy may be
substituted.
The question to settle next is whether or not aside from Joel Pempe Miranda being disqualified by the Comelec in
its May 5, 1998 resolution, his certificate of candidacy had likewise been denied due course and cancelled.
The Court rules that it was.
Private respondents petition in SPA No. 98-019 specifically prayed for the following:

WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by respondent for the position of
Mayor for the City of Santiago be not given due course and/or cancelled.

Other reliefs just and equitable in the premises are likewise prayed for.

(Rollo, p. 31; Emphasis ours.)

In resolving the petition filed by private respondent specifying a very particular relief, the Comelec ruled favorably
in the following manner:

WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the Petition. Respondent
JOSE Pempe MIRANDA is hereby DISQUALIFIED from running for the position of mayor of Santiago City, Isabela,
in the May 11, 1998 national and local elections.

SO ORDERED.

(p.43, Rollo; Emphasis ours.)

From a plain reading of the dispositive portion of the Comelec resolution of May 5, 1998 in SPA No. 98-019, it is
sufficiently clear that the prayer specifically and particularly sought in the petition was GRANTED, there being no
qualification on the matter whatsoever. The disqualification was simply ruled over and above the granting of the specific
prayer for denial of due course and cancellation of the certificate of candidacy. It may be stressed at this instance that
the legal consequences of this May 5, 1998 resolution are independent of the issue of whether or not the Comelec was
correct in reviving SPA No. 98-019 by consolidating it with SPA No. 98-288 in its December 8, 1998 resolution.
As regards the procedural matter in the present petition for certiorari, the following considerations are also in point:
It may be relevantly stressed that the review powers of the Supreme Court over decisions of the Constitutional
Commissions, in general, and the Commission on Elections, in particular, were rather particularly defined and limited
by the 1987 Constitution, as they were also circumscribed in the 1973 Constitution, to a petition for review
on certiorari under Rule 65. In Dario vs. Mison (176 SCRA 84 [1989]), the Court held:

. . . We affirm the teaching of Aratuc vs. Commission of Elections, 88 SCRA 251 [1979]) as regards recourse to this
Court with respect to rulings of the Civil Service Commissionwhich is that judgments of the Commission may be
brought to the Supreme Court through certiorari alone, under Rule 65 of the Rules of Court.

In Aratuc, we declared:

It is at once evident from these constitutional and statutory modifications that there is a definite tendency to enhance
and invigorate the role of the Commission on Elections as the independent constitutional body charged with the
safeguarding of free, peaceful and honest elections. The framers of the new Constitution must be presumed to have
definite knowledge of what it means to make the decisions, orders and rulings of the Commission subject to review by
the Supreme Court. And since instead of maintaining that provision intact, it ordained that the Commissions actuations
be instead brought to the Supreme Court on certiorari, We cannot insist that there was no intent to change the nature
of the remedy, considering that the limited scope of certiorari, compared to a review, is well known in remedial law.

xxx

It should also be noted that under the new Constitution, as under the 1973 Charter, any decision, order, or ruling of
each Commission may be brought to the Supreme Court on certiorari, which, as Aratuc tells us, technically connotes
something less than saying that the same shall be subject to review by the Supreme Court, which in turn suggests an
appeal by review by petition for review under Rule 45. Therefore, our jurisdiction over cases emanating from the Civil
Service Commission is limited to complaints of lack or excess of jurisdiction or grave abuse of discretion tantamount
to lack or excess of jurisdiction, complaints that justify certiorari under Rule 65.

(pp. 111-112)

To emphasize this procedural point, then Commissioner, later to become a distinguished Member of this Court,
Mr. Justice Florenz Regalado responded to Commissioner Bernas query during the deliberations of the 1987
Constitution thusly:
FR. BERNAS. So, for purposes of the record, now, what is the intention of the Committee? What are the grounds
for certiorari?
MR. REGALADO. The Committee refers specifically to a technical term of review by certiorari would be relying
on the provision of Rule XLV [Should be LXV] of the Rules of Court that laid down the three grounds.

(I RECORD OF THE CONSTITUTIONAL COMMISSION, p. 539, as cited in Bernas, S.J, The 1987 Constitution of
the Republic of the Philippines: A Commentary, 1996 Edition, p. 903.)

Thus, we have to be guided by jurisprudence relating to review by certiorari under Rule


65. Generally, certiorari lies where a court has acted without or in excess of jurisdiction or with grave abuse of
discretion.
Without jurisdiction refers to an absolute want of jurisdiction; excess of jurisdiction refers to the case where the
court has jurisdiction, but it transcended the same or acted without any statutory authority; grave abuse of discretion
implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction.
Even assuming for the sake of argument that the Comelec committed an error in the exercise of its jurisdiction in
the present case, such is not within the province of certiorari, as a remedial measure, to correct. The only issue that may
be taken cognizance of in the present case is whether or not the Comelec committed grave abuse of discretion in
rendering the assailed decision.
It is well-settled that an act of a court or tribunal may only be considered to have been done in grave abuse of
discretion when the same was performed in a capricious or whimsical exercise of judgment which is equivalent to lack
of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a
virtual refusal to perform a duty enjoined or to act at all in contemplation of law, as where the power is exercised in an
arbitrary and despotic manner by reason of passion or personal hostility (Intestate Estate of Carmen de Luna vs.
Intermediate Appellate Court, 170 SCRA 246 [1989]; Litton Mills vs. Galleon Traders, 163 SCRA 489 [1988]; Butuan
Bay Export Co. vs. Court of Appeals, 97 SCRA 297 [1980]). An error of judgment committed in the exercise of its
legitimate jurisdiction is not the same as grave abuse of discretion. An abuse of discretion is not sufficient by itself to
justify the issuance of a writ of certiorari. The abuse must be grave and patent, and it must be shown that the discretion
was exercised arbitrarily and despotically (Soriano vs. Atienza, 171 SCRA 284 [1989]).
Petitioner posits that the Comelec committed grave abuse of discretion when it annulled the substitution by and
proclamation of petitioner, who under Section 77 of the Omnibus Election Code, was allowed to substitute for
disqualified the candidate Jose Pempe Miranda. Petitioner also contends that it was an act of grave abuse of discretion
for the Comelec to direct the proclamation of private respondent as the winning candidate in the May 11, 1998 election.
Petitioner further faults the Comelec for amending the dispositive portion of its resolution in SPA No. 98-019,
which was not elevated to it on review, the same having already attained finality by then.
While it may be conceded that the Comelec stepped overboard and acted in excess of its jurisdiction when it motu
proprio took cognizance of SPA No. 98-019, the decision in which was by then already final, it does not necessarily
follow that the Comelec also committed grave abuse of discretion in resolving to grant private respondents motion for
reconsideration by nullifying the substitution of petitioner Joel G. Miranda. Evidently, what is under review before us
in this certiorari proceedings is SPA No. 98-288, and not SPA No. 98-019.
The question to answer is: will the Comelecs act which may constitute an excess of jurisdiction in SPA No. 98-019
be tantamount to an act of grave abuse of discretion in its judgment in the separate and distinct case of SPA No. 98-288
as well? Clearly, non sequitur. SPA No. 98-288 should be judged on its own accord, and not under the shadow of SPA
No. 98-019.
Comelec committed no grave abuse of discretion in resolving SPA No. 98-288 in favor of private respondent. As
earlier pointed out, the result in the dispositive portion of the December 8, 1998 resolution pertaining to the issues
involved in SPA No. 98-288 is correct insofar as it annulled the election and proclamation of Joel G. Miranda. But even
assuming for the sake of argument that it is not, still, this supposed error does not constitute grave abuse of discretion
which may be annulled and reversed in the present petition for certiorari.
As earlier elucidated too, the crux of the Comelecs disposition in SPA No. 98-288 is the fact that former candidate
Jose Pempe Mirandas certificate of candidacy was denied due course and cancelled.There is no dispute that the
complaint or petition filed by private respondent in SPA No. 98-019 is one to deny due course and to cancel the
certificate of candidacy of Jose Pempe Miranda (Rollo, pp. 26-31).There is likewise no question that the said petition
was GRANTED without any qualification whatsoever. It is rather clear, therefore, that whether or not the Comelec
granted any further relief in SPA No. 98-019 by disqualifying the candidate, the fact remains that the said petition
was granted and that the certificate of candidacy of Jose Pempe Miranda was denied due course and cancelled. In
fact, it was not even necessary for the Comelec to reiterate this in its December 8, 1998 resolution. At best, the
Comelecs motu proprio act of resurrecting SPA No. 98-019 should be treated as a mere surplusage. The fact that the
certificate of candidacy of Joel Pempe Miranda was denied due course and cancelled did not depend on the en
banc resolution dated December 8, 1998 of the Comelec. It stems from the fact that the May 5, 1998 resolution
GRANTED private respondents Petition to Deny Due Course to and/or Cancel Certificate of Candidacy.
Verily, there is clear basis to find that there indeed was a blatant misrepresentation in the instant case and that it
was a valid ground for the granting of the petition in SPA No. 98-019. Also, there appears to be sound basis to rule that
a certificate of candidacy which has been denied due course on account of misrepresentation is, in every legal
contemplation, no certificate at all. Ergo, there is nothing to substitute. If this judgment, rendered in the Comelecs
rightful exercise of its jurisdiction in SPA No. 98-288 may, at all, be considered flawed, this blemish would only
constitute an error of judgment and definitely not grave abuse of discretion. And, of course, errors of judgment may not
be corrected by certiorari.
It may be noted that Commissioner Flores raised this supposed error in her dissenting opinion (pp. 93-
99, Rollo). However, her legal opinion failed to convince the majority of the collegiate body and was not adopted by the
Commission en banc. This Court in the present certiorari proceedings cannot substitute its judgment for that of the
Comelec without violating the Constitution and the Rules of Court on the matter. The Comelecs decision is not subject
to appeal to this Court. We may only strike out a Comelec decision if it was rendered without jurisdiction, in excess
thereof, or with grave abuse of discretion amounting to lack of jurisdiction.
The Court cannot accede to the reasoning that this Court should now acquiesce and submit to the sovereign will of
the electorate, as expressed by their votes. We should always be reminded that ours is a government of laws not of
men. If this Court should fold its arms and refuse to apply the law at every clamor of the majority of the supposed
constituency, where shall order and justice lie? Without the least intention to degrade, where shall people power end,
and where shall law and justice begin? Would the apparent results of the canvassing of votes justify this Court in refusing
to apply the law instead? The answers to the foregoing are obvious. The Court cannot choose otherwise but to exercise
its sacred duty to uphold the Constitution and the laws of the Republic for and under which it exists. Besides, only
history will discern whether Jose Pempe Mirandas filing of a certificate of candidacy for a 4th term and the intended
substitution by his son was a ploy to perpetrate the Mirandas in power by way of a political dynasty disdained and
abhorred by our Constitution which declared:

SEC. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as
may be defined by law.

(Article II, 1987 Constitution)

The invalidation of petitioners supposed substitution of Jose Pempe Miranda brings about the disqualification of
petitioner in the mayoralty race. In this regard, what was said in Nolasco vs. Commission on Elections (275 SCRA 763
[1997]) may be recalled:

Our case law is now settled that in a mayoralty election, the candidate who obtained the second highest number of
votes, in this case Alarilla, cannot be proclaimed winner in case the winning candidate is disqualified. Thus, we
reiterated the rule in the fairly recent case of Reyes v. Comelec (254 SCRA 514 [1996]), viz.:

xxxxxxxxx

We likewise find no grave abuse of discretion on the part of the Comelec in denying petitioner Julius O. Garcias
petition to be proclaimed mayor in view of the disqualification of Renato U. Reyes.

That the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning
candidate is disqualified is now settled. The doctrinal instability caused by see-sawing rulings has since been
removed. In the latest ruling on the question, this Court said:

To simplistically assume that the second placer would have received the other votes would be to substitute our
judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was
repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates
because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are
not prepared to extrapolate the results under the circumstances.

Garcias plea that the votes case for Reyes be invalidated is without merit. The votes cast for Reyes are presumed to
have been cast in the belief that Reyes was qualified and for that reason can be treated as stray, void and
meaningless. The subsequent finding that he is disqualified cannot retroact to the date of the elections as to invalidate
the votes cast for him.

Consequently, respondent Comelec committed grave abuse of discretion insofar as it failed to follow the above
doctrine, a descendant of our ruling in Labo v. Comelec (176 SCRA 1 [1989]).

(pp. 782-783)

Thus, the Comelec committed grave abuse of discretion insofar as it failed to follow the above-cited settled ruling
consistently applied by this Court since the case of Labo vs. Comelec (176 SCRA 1 [1989]), Aquino vs. Comelec, 248
SCRA 400 [1995], Reyes vs. Comelec (254 SCRA 514 [1996]); and Nolasco vs. Comelec (275 SCRA 763 [1997]).
Even as the Court cannot accede to the contention that, in view of the election results pointing to petitioner as the
electors choice for the mayoralty post, we should now close our eyes to the pertinent provisions of the Omnibus Election
Code on the matter, nevertheless, the Court duly notes that the said election results point to the fact that private
respondent was not then the choice of the people of Santiago City, Isabela. This Court has no authority under any law
to impose upon and compel the people of Santiago City to accept private respondent as their mayor. The law on
succession under section 44 of Republic Act 7160, otherwise known as the Local Government Code, would then
apply. Said provision relevantly states:

SEC. 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice Mayor. (a) If a
permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall
become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor, or
vice mayor, the highest ranking sanggunian member, or, in case of his permanent disability, the second highest
ranking sanggunian member, shall become governor, vice governor, mayor or vice mayor, as the case may
be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to
their ranking as defined herein.

x x x.

For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office,
refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently
incapacitated to discharge the functions of his office.

For purposes of succession as provided in this Chapter, ranking in the sanggunian shall be determined on the basis of
the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in
the immediately preceding local election.

WHEREFORE, the petition is hereby partly DENIED, insofar as the Comelec ruling to ANNUL the election and
proclamation of petitioner is being AFFIRMED. The petition is, however, hereby GRANTED so as to MODIFY the
resolution of the Comelec in SPA No. 98-288 by DELETING the portion directing the city board of canvassers to
reconvene and proclaim the winning candidate from among those voted upon during the May 11, 1998 elections. The
law on succession should be enforced. Accordingly, the restraining order issued in this case is forthwith LIFTED.
SO ORDERED.
[G.R. No. 136351. July 28, 1999]

JOEL G. MIRANDA, petitioner, vs. ANTONIO M. ABAYA and the COMMISSION ON


ELECTIONS, respondents.

DECISION
MELO, J.:

Before us is a petition for certiorari with prayer for the issuance of a temporary restraining order and/or writ of
preliminary injunction questioning the resolution of the Comelec En Banc dated December 8, 1998 in SPA Case No.
98-288 which disposed:
ACCORDINGLY, judgment is hereby rendered to:

1. AMEND and RECTIFY the dispositive portion of the Resolution of the Commission (First Division) in SPA No.
98-019 promulgated on May 5, 1998, to read as follows:

WHEREFORE, in view of the foregoing, the Commission (First Division) GRANTS the Petition. Respondent JOSE
PEMPE MIRANDAs certificate of candidacy for the position of mayor of Santiago City in the May 11, 1998 national
and local elections is hereby DENIED DUE COURSE AND/OR CANCELLED.

SO ORDERED.

2. ANNUL the election and proclamation of respondent JOEL G. MIRANDA as mayor of Santiago City in the May
11, 1998 election and CANCEL the Certificate of Canvass and Proclamation (C.E. form 25) issued therefor;

3. DIRECT THE City board of Canvassers of Santiago City to RECONVENE, PREPARE a new certificate of canvass
& proclamation and PROCLAIM the winning candidate among those voted upon as the duly elected mayor of
Santiago City in the May 11, 1998 election; and

4. DIRECT the Clerk of Court of the Commission to furnish copies of this Decision to the Office of the President of
the Philippines; the Department of Interior and Local Government; the Department of Finance, and the Secretary of
the Sangguniang Panglunsod of Santiago City.

SO ORDERED.

(pp. 90-91, Rollo.)

The aforementioned resolution dated December 8, 1998 reversed and set aside the earlier resolution of the First
Division of the Comelec dated May 16, 1998, dismissing private respondents petition to declare the substitution of Jose
Pempe Miranda by petitioner as candidate for the City of Santiagos mayoralty post void.
Briefly, the pertinent factual backdrop is summarized as follows:
On March 24, 1998, Jose Pempe Miranda, then incumbent mayor of Santiago City, Isabela, filed his certificate of
candidacy for the same mayoralty post for the synchronized May 11, 1998 elections.
On March 27, 1998, private respondent Antonio M. Abaya filed a Petition to Deny Due Course to and/or Cancel
Certificate of Candidacy (pp. 26-33, Rollo), which was docketed as SPA No. 98-019. The petition was GRANTED by
the Comelec in its resolution dated May 5, 1998 (pp. 36-43, Rollo). The Comelec further ruled to DISQUALIFY Jose
Pempe Miranda.
On May 6, 1998, way beyond the deadline for filing a certificate of candidacy, petitioner Joel G. Miranda filed his
certificate of candidacy for the mayoralty post, supposedly as a substitute for his father, Jose Pempe Miranda.
During the May 11, 1998 elections, petitioner and private respondent vied for the mayoralty seat, with petitioner
garnering 22,002 votes, 1,666 more votes than private respondent who got only 20, 336 votes.
On May 13, 1998, private respondent filed a Petition to Declare Null and Void Substitution with Prayer for Issuance
of Writ of Preliminary Injunction and/or Temporary Restraining Order, which was docketed as SPA No. 98-288. He
prayed for the nullification of petitioners certificate of candidacy for being void ab initio because the certificate of
candidacy of Jose Pempe Miranda, whom petitioner was supposed to substitute, had already been cancelled and denied
due course.
On May 16, 1998, Comelecs First Division dismissed SPA No. 98-288 motu proprio (pp. 57-61, Rollo). Private
respondent moved for reconsideration (pp. 62-72, Rollo). On December 8, 1998, the Comelec En Banc rendered the
assailed decision aforequoted, resolving to GRANT the motion for reconsideration, thus nullifying the substitution by
petitioner Joel G. Miranda of his father as candidate for the mayoralty post of Santiago City.
On December 9, 1998, petitioner sought this Courts intercession via a petition for certiorari, with prayer for the
issuance of a temporary restraining order and/or writ of preliminary injunction. On December 11, 1998, the Court
resolved to issue a temporary restraining order and to require respondents to comment on the petition. On December 14,
1998, private respondent filed his Comment (pp. 140-187 and 188-234, Rollo) and on February 16, 1999, the Comelec,
through its counsel, the Solicitor General, filed its Comment (pp. 254-265, Rollo). The Court required petitioner to file
a consolidated reply within 10 days from notice, but petitioner twice asked for an extension of the period. Without
granting the motions for extension of time to file consolidated reply, the Court decided to resolve the controversy in
favor of petitioner.
Tersely, the issues in the present case may be summarized as follows:
1. Whether the annulment of petitioners substitution and proclamation was issued without jurisdiction and/or
with grave abuse of discretion amounting to lack of jurisdiction; and
2. Whether the order of the Comelec directing the proclamation of the private respondent was issued with
grave abuse of discretion amounting to lack of jurisdiction.
The Court finds neither lack of jurisdiction nor grave abuse of discretion attended the annulment of the substitution
and proclamation of petitioner.
On the matter of jurisdiction, there is no question that the case at hand is within the exclusive original jurisdiction
of the Comelec. As early as in Herrera vs. Baretto (25 Phil. 245 [1913]), this Court had occasion to apply the following
principles:

Jurisdiction is the authority to hear and determine a causethe right to act in a case. Since it is the power to hear and
determine, it does not depend either upon the regularity of the exercise of that power or upon the rightfulness of the
decision made. Jurisdiction should therefore be distinguished from the exercise of jurisdiction. The authority to decide
a cause at all, and not the decision rendered therein, is what makes up jurisdiction. Where there is jurisdiction over the
subject matter, as we have said before, the decision of all other questions arising in the case is but an exercise of that
jurisdiction.

(p. 251)

On the issue of soundness of the disposition in SPA No. 98-288, the Court finds that the Comelecs action nullifying
the substitution by and proclamation of petitioner for the mayoralty post of Santiago City, Isabela is proper and legally
sound.
Petitioner insists that the substitution at bar is allowed under Section 77 of the Omnibus Election Code which
provides:

SEC. 77. Candidates in case of death, disqualification or withdrawal. If after the last day for the filing of certificates
of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for
any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to
replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political
party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections
not later than mid-day of the day of the election. If the death, withdrawal or disqualification should occur between the
day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors
in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate
of the country, with the Commission.

Petitioner capitalizes on the fact that the Comelec ruled to disqualify Jose Pempe Miranda in the May 5, 1998
resolution and he heavily relies upon the above-quoted provision allowing substitution of a candidate who has been
disqualified for any cause.
While there is no dispute as to whether or not a nominee of a registered or accredited political party may substitute
for a candidate of the same party who had been disqualified for any cause, this does not include those cases where the
certificate of candidacy of the person to be substituted had been denied due course and cancelled under Section 78 of
the Code.
Expressio unius est exclusio alterius. While the law enumerated the occasions where a candidate may be validly
substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial
and cancellation of his certificate of candidacy. Under the foregoing rule, there can be no valid substitution for the latter
case, much in the same way that a nuisance candidate whose certificate of candidacy is denied due course and/or
cancelled may not be substituted. If the intent of the lawmakers were otherwise, they could have so easily and
conveniently included those persons whose certificates of candidacy have been denied due course and/or cancelled under
the provisions of Section 78 of the Code.
More importantly, under the express provisions of Section 77 of the Code, not just any person, but only an official
candidate of a registered or accredited political party may be substituted. In Bautista vs. Comelec (G.R. No. 133840,
November 13, 1998) this Court explicitly ruled that a cancelled certificate does not give rise to a valid
candidacy (p.13).
A person without a valid certificate of candidacy cannot be considered a candidate in much the same way as any
person who has not filed any certificate of candidacy at all can not, by any stretch of the imagination, be a candidate at
all.
The law clearly provides:

SEC. 73. Certificate of candidacy No person shall be eligible for any elective public office unless he files a sworn
certificate of candidacy within the period fixed herein.

By its express language, the foregoing provision of law is absolutely mandatory. It is but logical to say that any person
who attempts to run for an elective office but does not file a certificate of candidacy, is not a candidate at all. No
amount of votes would catapult him into office. In Gador vs. Comelec (95 SCRA 431 [1980]), the Court held that a
certificate of candidacy filed beyond the period fixed by law is void, and the person who filed it is not, in law, a
candidate. Much in the same manner as a person who filed no certificate of candidacy at all and a person who filed it
out of time, a person whose certificate of candidacy is cancelled or denied due course is no candidate at all. No
amount of votes should entitle him to the elective office aspired for.

The evident purposes of the law in requiring the filing of certificates of candidacy and in fixing the time limit
therefor are: (a) to enable the voters to know, at least sixty days before the regular election, the candidates among whom
they are to make the choice, and (b) to avoid confusion and inconvenience in the tabulation of the votes cast. For if the
law did not confine the choice or election by the voters to the duly registered candidates, there might be as many persons
voted for as there are voters, and votes might be cast even for unknown or fictitious persons as a mark to identify the
votes in favor of a candidate for another office in the same election. (Monsale vs. Nico, 83 Phil. 758 [1949])
It is at once evident that the importance of a valid certificate of candidacy rests at the very core of the electoral
process. It cannot be taken lightly, lest there be anarchy and chaos. Verily, this explains why the law provides for
grounds for the cancellation and denial of due course to certificates of candidacy.
After having considered the importance of a certificate of candidacy, it can be readily understood why
in Bautista we ruled that a person with a cancelled certificate is no candidate at all. Applying this principle to the case
at bar and considering that Section 77 of the Code is clear and unequivocal that only an official candidate of a registered
or accredited party may be substituted, there demonstrably cannot be any possible substitution of a person whose
certificate of candidacy has been cancelled and denied due course.
Also, under ejusdem generis rule, where a general word or phrase (such as disqualification for any cause in this
case) follows an enumeration of particular and specific words of the same class (such as the words dies and withdraws
in the instant case) or where the latter follow the former, the general word or phrase is to be construed to include, or to
be restricted to persons, things or cases akin to, resembling, or of the same kind or class as those specifically mentioned
(see: Vera vs. Cuevas, 90 SCRA 379 [1979]). A deceased candidate is required to have duly filed a valid certificate of
candidacy, otherwise his political party would not be allowed to field a substitute candidate in his stead under Section
77 of the Code. In the case of withdrawal of candidacy, the withdrawing candidate is required to have duly filed a valid
certificate of candidacy in order to allow his political party to field a substitute candidate in his stead. Most reasonable
it is then, under the foregoing rule, to hold that a valid certificate of candidacy is likewise an indispensable requisite in
the case of a substitution of a disqualified candidate under the provisions of Section 77 of the Code, just as it is in the
two previous instances.
Furthermore, interpretatio talis in ambiguis semper freinda est, ut eviatur inconveniens et absurdum, meaning,
where there is ambiguity, such interpretation as will avoid inconvenience and absurdity shall in all cases be adopted. To
include those disqualified candidates whose certificate of candidacy had likewise been denied due course and/or
cancelled among those who may be substituted under Section 77 of the Omnibus Election Code, leads to the absurdity
where a substitute is allowed to take the place of somebody who had not been a candidate in the first placea person who
did not have a valid certificate of candidacy prior to substitution. Nemo dat quod non habet. What right can a non-
candidate pass on to his substitute? Clearly, there is none because no one can give what he does not have.
Even on the most basic and fundamental principles, it is readily understood that the concept of a substitute
presupposes the existence of the person to be substituted, for how can a person take the place of somebody who does
not exist or who never was. The Court has no other choice but to rule that in all the instances enumerated in Section 77
of the Omnibus Election code, the existence of a valid certificate of candidacy seasonably filed is a requisite sine qua
non.
All told, a disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place
because, if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy, he is and was
not a candidate at all. If a person was not a candidate, he cannot be substituted under Section 77 of the Code. Besides,
if we were to allow the so-called substitute to file a new and original certificate of candidacy beyond the period for the
filing thereof, it would be a crystalline case of unequal protection of the law, an act abhorred by our Constitution.
From the foregoing discussion it is evident that the controversy at hand is not a simple case of hair-splitting. A
candidate may not be qualified to run for election but may have filed a valid certificate of candidacy. Another candidate
may likewise be not qualified and at the same time not have a valid certificate of candidacy, for which reason, said
certificate of candidacy is also cancelled and/or denied due course. Or, a third candidate may be qualified but, his
certificate of candidacy may be denied due course and/or cancelled. This is possible because the grounds for
disqualification (see: Omnibus Election Code, Section 68 Disqualifications) are totally separate and distinct from the
grounds for cancellation and/or denying due course to a certificate of candidacy (Ibid., Section 69 nuisance candidates;
and Section 78 material misrepresentation). Only the candidate who had a valid certificate of candidacy may be
substituted.
The question to settle next is whether or not aside from Joel Pempe Miranda being disqualified by the Comelec in
its May 5, 1998 resolution, his certificate of candidacy had likewise been denied due course and cancelled.
The Court rules that it was.
Private respondents petition in SPA No. 98-019 specifically prayed for the following:

WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by respondent for the position of
Mayor for the City of Santiago be not given due course and/or cancelled.

Other reliefs just and equitable in the premises are likewise prayed for.

(Rollo, p. 31; Emphasis ours.)

In resolving the petition filed by private respondent specifying a very particular relief, the Comelec ruled favorably
in the following manner:

WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the Petition. Respondent
JOSE Pempe MIRANDA is hereby DISQUALIFIED from running for the position of mayor of Santiago City, Isabela,
in the May 11, 1998 national and local elections.

SO ORDERED.

(p.43, Rollo; Emphasis ours.)

From a plain reading of the dispositive portion of the Comelec resolution of May 5, 1998 in SPA No. 98-019, it is
sufficiently clear that the prayer specifically and particularly sought in the petition was GRANTED, there being no
qualification on the matter whatsoever. The disqualification was simply ruled over and above the granting of the specific
prayer for denial of due course and cancellation of the certificate of candidacy. It may be stressed at this instance that
the legal consequences of this May 5, 1998 resolution are independent of the issue of whether or not the Comelec was
correct in reviving SPA No. 98-019 by consolidating it with SPA No. 98-288 in its December 8, 1998 resolution.
As regards the procedural matter in the present petition for certiorari, the following considerations are also in point:
It may be relevantly stressed that the review powers of the Supreme Court over decisions of the Constitutional
Commissions, in general, and the Commission on Elections, in particular, were rather particularly defined and limited
by the 1987 Constitution, as they were also circumscribed in the 1973 Constitution, to a petition for review
on certiorari under Rule 65. In Dario vs. Mison (176 SCRA 84 [1989]), the Court held:

. . . We affirm the teaching of Aratuc vs. Commission of Elections, 88 SCRA 251 [1979]) as regards recourse to this
Court with respect to rulings of the Civil Service Commissionwhich is that judgments of the Commission may be
brought to the Supreme Court through certiorari alone, under Rule 65 of the Rules of Court.

In Aratuc, we declared:

It is at once evident from these constitutional and statutory modifications that there is a definite tendency to enhance
and invigorate the role of the Commission on Elections as the independent constitutional body charged with the
safeguarding of free, peaceful and honest elections. The framers of the new Constitution must be presumed to have
definite knowledge of what it means to make the decisions, orders and rulings of the Commission subject to review by
the Supreme Court. And since instead of maintaining that provision intact, it ordained that the Commissions actuations
be instead brought to the Supreme Court on certiorari, We cannot insist that there was no intent to change the nature
of the remedy, considering that the limited scope of certiorari, compared to a review, is well known in remedial law.

xxx

It should also be noted that under the new Constitution, as under the 1973 Charter, any decision, order, or ruling of
each Commission may be brought to the Supreme Court on certiorari, which, as Aratuc tells us, technically connotes
something less than saying that the same shall be subject to review by the Supreme Court, which in turn suggests an
appeal by review by petition for review under Rule 45. Therefore, our jurisdiction over cases emanating from the Civil
Service Commission is limited to complaints of lack or excess of jurisdiction or grave abuse of discretion tantamount
to lack or excess of jurisdiction, complaints that justify certiorari under Rule 65.

(pp. 111-112)

To emphasize this procedural point, then Commissioner, later to become a distinguished Member of this Court,
Mr. Justice Florenz Regalado responded to Commissioner Bernas query during the deliberations of the 1987
Constitution thusly:
FR. BERNAS. So, for purposes of the record, now, what is the intention of the Committee? What are the grounds
for certiorari?
MR. REGALADO. The Committee refers specifically to a technical term of review by certiorari would be relying
on the provision of Rule XLV [Should be LXV] of the Rules of Court that laid down the three grounds.

(I RECORD OF THE CONSTITUTIONAL COMMISSION, p. 539, as cited in Bernas, S.J, The 1987 Constitution of
the Republic of the Philippines: A Commentary, 1996 Edition, p. 903.)

Thus, we have to be guided by jurisprudence relating to review by certiorari under Rule


65. Generally, certiorari lies where a court has acted without or in excess of jurisdiction or with grave abuse of
discretion.
Without jurisdiction refers to an absolute want of jurisdiction; excess of jurisdiction refers to the case where the
court has jurisdiction, but it transcended the same or acted without any statutory authority; grave abuse of discretion
implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction.
Even assuming for the sake of argument that the Comelec committed an error in the exercise of its jurisdiction in
the present case, such is not within the province of certiorari, as a remedial measure, to correct. The only issue that may
be taken cognizance of in the present case is whether or not the Comelec committed grave abuse of discretion in
rendering the assailed decision.
It is well-settled that an act of a court or tribunal may only be considered to have been done in grave abuse of
discretion when the same was performed in a capricious or whimsical exercise of judgment which is equivalent to lack
of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a
virtual refusal to perform a duty enjoined or to act at all in contemplation of law, as where the power is exercised in an
arbitrary and despotic manner by reason of passion or personal hostility (Intestate Estate of Carmen de Luna vs.
Intermediate Appellate Court, 170 SCRA 246 [1989]; Litton Mills vs. Galleon Traders, 163 SCRA 489 [1988]; Butuan
Bay Export Co. vs. Court of Appeals, 97 SCRA 297 [1980]). An error of judgment committed in the exercise of its
legitimate jurisdiction is not the same as grave abuse of discretion. An abuse of discretion is not sufficient by itself to
justify the issuance of a writ of certiorari. The abuse must be grave and patent, and it must be shown that the discretion
was exercised arbitrarily and despotically (Soriano vs. Atienza, 171 SCRA 284 [1989]).
Petitioner posits that the Comelec committed grave abuse of discretion when it annulled the substitution by and
proclamation of petitioner, who under Section 77 of the Omnibus Election Code, was allowed to substitute for
disqualified the candidate Jose Pempe Miranda. Petitioner also contends that it was an act of grave abuse of discretion
for the Comelec to direct the proclamation of private respondent as the winning candidate in the May 11, 1998 election.
Petitioner further faults the Comelec for amending the dispositive portion of its resolution in SPA No. 98-019,
which was not elevated to it on review, the same having already attained finality by then.
While it may be conceded that the Comelec stepped overboard and acted in excess of its jurisdiction when it motu
proprio took cognizance of SPA No. 98-019, the decision in which was by then already final, it does not necessarily
follow that the Comelec also committed grave abuse of discretion in resolving to grant private respondents motion for
reconsideration by nullifying the substitution of petitioner Joel G. Miranda. Evidently, what is under review before us
in this certiorari proceedings is SPA No. 98-288, and not SPA No. 98-019.
The question to answer is: will the Comelecs act which may constitute an excess of jurisdiction in SPA No. 98-019
be tantamount to an act of grave abuse of discretion in its judgment in the separate and distinct case of SPA No. 98-288
as well? Clearly, non sequitur. SPA No. 98-288 should be judged on its own accord, and not under the shadow of SPA
No. 98-019.
Comelec committed no grave abuse of discretion in resolving SPA No. 98-288 in favor of private respondent. As
earlier pointed out, the result in the dispositive portion of the December 8, 1998 resolution pertaining to the issues
involved in SPA No. 98-288 is correct insofar as it annulled the election and proclamation of Joel G. Miranda. But even
assuming for the sake of argument that it is not, still, this supposed error does not constitute grave abuse of discretion
which may be annulled and reversed in the present petition for certiorari.
As earlier elucidated too, the crux of the Comelecs disposition in SPA No. 98-288 is the fact that former candidate
Jose Pempe Mirandas certificate of candidacy was denied due course and cancelled.There is no dispute that the
complaint or petition filed by private respondent in SPA No. 98-019 is one to deny due course and to cancel the
certificate of candidacy of Jose Pempe Miranda (Rollo, pp. 26-31).There is likewise no question that the said petition
was GRANTED without any qualification whatsoever. It is rather clear, therefore, that whether or not the Comelec
granted any further relief in SPA No. 98-019 by disqualifying the candidate, the fact remains that the said petition
was granted and that the certificate of candidacy of Jose Pempe Miranda was denied due course and cancelled. In
fact, it was not even necessary for the Comelec to reiterate this in its December 8, 1998 resolution. At best, the
Comelecs motu proprio act of resurrecting SPA No. 98-019 should be treated as a mere surplusage. The fact that the
certificate of candidacy of Joel Pempe Miranda was denied due course and cancelled did not depend on the en
banc resolution dated December 8, 1998 of the Comelec. It stems from the fact that the May 5, 1998 resolution
GRANTED private respondents Petition to Deny Due Course to and/or Cancel Certificate of Candidacy.
Verily, there is clear basis to find that there indeed was a blatant misrepresentation in the instant case and that it
was a valid ground for the granting of the petition in SPA No. 98-019. Also, there appears to be sound basis to rule that
a certificate of candidacy which has been denied due course on account of misrepresentation is, in every legal
contemplation, no certificate at all. Ergo, there is nothing to substitute. If this judgment, rendered in the Comelecs
rightful exercise of its jurisdiction in SPA No. 98-288 may, at all, be considered flawed, this blemish would only
constitute an error of judgment and definitely not grave abuse of discretion. And, of course, errors of judgment may not
be corrected by certiorari.
It may be noted that Commissioner Flores raised this supposed error in her dissenting opinion (pp. 93-
99, Rollo). However, her legal opinion failed to convince the majority of the collegiate body and was not adopted by the
Commission en banc. This Court in the present certiorari proceedings cannot substitute its judgment for that of the
Comelec without violating the Constitution and the Rules of Court on the matter. The Comelecs decision is not subject
to appeal to this Court. We may only strike out a Comelec decision if it was rendered without jurisdiction, in excess
thereof, or with grave abuse of discretion amounting to lack of jurisdiction.
The Court cannot accede to the reasoning that this Court should now acquiesce and submit to the sovereign will of
the electorate, as expressed by their votes. We should always be reminded that ours is a government of laws not of
men. If this Court should fold its arms and refuse to apply the law at every clamor of the majority of the supposed
constituency, where shall order and justice lie? Without the least intention to degrade, where shall people power end,
and where shall law and justice begin? Would the apparent results of the canvassing of votes justify this Court in refusing
to apply the law instead? The answers to the foregoing are obvious. The Court cannot choose otherwise but to exercise
its sacred duty to uphold the Constitution and the laws of the Republic for and under which it exists. Besides, only
history will discern whether Jose Pempe Mirandas filing of a certificate of candidacy for a 4th term and the intended
substitution by his son was a ploy to perpetrate the Mirandas in power by way of a political dynasty disdained and
abhorred by our Constitution which declared:

SEC. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as
may be defined by law.

(Article II, 1987 Constitution)

The invalidation of petitioners supposed substitution of Jose Pempe Miranda brings about the disqualification of
petitioner in the mayoralty race. In this regard, what was said in Nolasco vs. Commission on Elections (275 SCRA 763
[1997]) may be recalled:

Our case law is now settled that in a mayoralty election, the candidate who obtained the second highest number of
votes, in this case Alarilla, cannot be proclaimed winner in case the winning candidate is disqualified. Thus, we
reiterated the rule in the fairly recent case of Reyes v. Comelec (254 SCRA 514 [1996]), viz.:

xxxxxxxxx

We likewise find no grave abuse of discretion on the part of the Comelec in denying petitioner Julius O. Garcias
petition to be proclaimed mayor in view of the disqualification of Renato U. Reyes.

That the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning
candidate is disqualified is now settled. The doctrinal instability caused by see-sawing rulings has since been
removed. In the latest ruling on the question, this Court said:

To simplistically assume that the second placer would have received the other votes would be to substitute our
judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was
repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates
because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are
not prepared to extrapolate the results under the circumstances.

Garcias plea that the votes case for Reyes be invalidated is without merit. The votes cast for Reyes are presumed to
have been cast in the belief that Reyes was qualified and for that reason can be treated as stray, void and
meaningless. The subsequent finding that he is disqualified cannot retroact to the date of the elections as to invalidate
the votes cast for him.

Consequently, respondent Comelec committed grave abuse of discretion insofar as it failed to follow the above
doctrine, a descendant of our ruling in Labo v. Comelec (176 SCRA 1 [1989]).

(pp. 782-783)

Thus, the Comelec committed grave abuse of discretion insofar as it failed to follow the above-cited settled ruling
consistently applied by this Court since the case of Labo vs. Comelec (176 SCRA 1 [1989]), Aquino vs. Comelec, 248
SCRA 400 [1995], Reyes vs. Comelec (254 SCRA 514 [1996]); and Nolasco vs. Comelec (275 SCRA 763 [1997]).
Even as the Court cannot accede to the contention that, in view of the election results pointing to petitioner as the
electors choice for the mayoralty post, we should now close our eyes to the pertinent provisions of the Omnibus Election
Code on the matter, nevertheless, the Court duly notes that the said election results point to the fact that private
respondent was not then the choice of the people of Santiago City, Isabela. This Court has no authority under any law
to impose upon and compel the people of Santiago City to accept private respondent as their mayor. The law on
succession under section 44 of Republic Act 7160, otherwise known as the Local Government Code, would then
apply. Said provision relevantly states:

SEC. 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice Mayor. (a) If a
permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall
become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor, or
vice mayor, the highest ranking sanggunian member, or, in case of his permanent disability, the second highest
ranking sanggunian member, shall become governor, vice governor, mayor or vice mayor, as the case may
be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to
their ranking as defined herein.

x x x.

For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office,
refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently
incapacitated to discharge the functions of his office.

For purposes of succession as provided in this Chapter, ranking in the sanggunian shall be determined on the basis of
the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in
the immediately preceding local election.

WHEREFORE, the petition is hereby partly DENIED, insofar as the Comelec ruling to ANNUL the election and
proclamation of petitioner is being AFFIRMED. The petition is, however, hereby GRANTED so as to MODIFY the
resolution of the Comelec in SPA No. 98-288 by DELETING the portion directing the city board of canvassers to
reconvene and proclaim the winning candidate from among those voted upon during the May 11, 1998 elections. The
law on succession should be enforced. Accordingly, the restraining order issued in this case is forthwith LIFTED.
SO ORDERED.
[G.R. No. 132774. June 21, 1999]

RODOLFO E. AGUINALDO, FLORENCIO L. VARGAS, ROMEO I. CALUBAQUIB, AMADO T.


GONZALES, SILVERIO C. SALVANERA, ALBERTA O. QUINTO, and AURORA V.
ESTABILLO, petitioners, vs. COMMISSION ON ELECTIONS, respondents.

RESOLUTION
QUISUMBING, J.:

Before us is a petition for prohibition under Rule 65 of the Revised Rules of Court, with a prayer for the issuance
of a writ of preliminary injunction and/or a temporary restraining order.
Petitioners, at the time of the filing of the petition, were incumbent provincial or municipal officials in
Cagayan. Petitioner Rodolfo E. Aguinaldo was governor; Florencio L. Vargas, vice governor; Romeo I. Calubaquib,
member of the Sangguniang Panlalawigan; Amado T. Gonzales, member of the Sangguniang Panlalawigan; Silverio
C. Salvanera, member of the Sangguniang Panlalawigan; Alberta O. Quinto, mayor of the municipality of Peablanca;
and Aurora V. Estabillo, mayor of the municipality of Sta. Praxedes.
Petitioners seek to prevent the COMELEC from enforcing during the 1998 elections Section 67 of the Omnibus
Election Code (B.P. Blg. 881) in accordance with its own tenor or as modified by paragraph 3 of Section 11 of Republic
Act No. 8436.
Section 67 of the Omnibus Election Code reads:

Sec. 67. Candidates holding elective office. -- Any elective official, whether national or local, running for any office
other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be
considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

On the other hand, the third paragraph of Section 11 of R.A. No. 8436 reads:

SEC. 11. Official Ballot. --

Provided, That any elective official, whether national or local, running for any office other than the one he/she is
holding in a permanent capacity, except for president and vice-president, shall be deemed resigned only upon the start
of the campaign period corresponding to the position for which he/she is running;

Petitioners contend that Section 67, of the Omnibus Election Code is violative of the equal protection clause of the
Constitution, as its classification of persons running for office is not a valid classification, following the guidelines laid
down by the Court in People v. Cayat.[1] According to the doctrine laid down in Cayat, for a classification to be valid,
(1) it must be based upon substantial distinctions, (2) it must be germane to the purpose of the law, (3) it must not be
limited to existing conditions only, and (4) it must apply equally to all members of the same class.
Petitioners contend that the classification in Section 67 is not based on substantial distinctions and, thus, violative
of the equal protection clause of the Constitution.
According to petitioners, candidates for elective office are classified into the following groups under Section 67:

(a) First classification: an incumbent elective official who runs for the same position as his present incumbency (and)
another incumbent elective official running for another position; and

(b) Second Classification: an incumbent elective official who runs for president or vice-president(and) another
incumbent elective [official] running for any other position (i.e., not his incumbency nor for president or vice
president)[2]

Petitioners argue that, in the first classification, the reelectionist is given an undue advantage since he is able to use
the resources, prestige, and influence of his position. The same is not available to one seeking an office different from
the one he is presently holding. This, according to petitioners, does not equalize the playing field for all candidates.
As regards the second classification, petitioners argue that there is no basis for giving candidates for president or
vice president the special privilege[3] of remaining in office.
Petitioners claim that the classifications result into absurd or unwanted and difficult situations [4] and give the
following examples: (1) a mayor who runs for president remains as mayor even though he is physically absent from his
city or municipality because he campaigns nationwide; (2) a councilor or vice mayor who runs for mayor is considered
resigned from his position although he remains physically present in his locality; (3) a president -- a national official --
who runs for a lower position is considered resigned from office, while the mayor -- a local official -- who runs for
president is not.
Petitioners contend that the classifications could have been made without sufficient study,[5] as the Omnibus
Election Code was passed during the Marcos years, when no one could honestly believe he could be elected president
or even vice president.[6] Also during that time, members of the Batasang Pambansa could run for reelection indefinitely
so it was not likely for any of them to run for a lower position. Petitioners say that Section 67 was largely ignored as an
innocous (sic) oddity.[7] Their thesis therefore is that the provision did not get sufficient attention and analysis that would
have brought out its constitutional infirmities.[8]
Petitioners also argue that Section 67 effectively shortens the terms of office of elected officials, in violation of
Article X, Section 8 of the Constitution, which provides:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall
be three years and no such official shall serve for more than three consecutive terms.Voluntary renunciation of the
office for any length of time shall not be considered as an interruption in the continuity of his service for the full term
for which he was elected.

Petitioners lament that no relevant discussions[9] seem to have been made in relation to the re-enactment of Section
67 of the Omnibus Election Code into Section 11 of R.A. No. 8436.
The COMELEC, on the other hand, asserts that the classification embodied in Section 67 is reasonable and based
on substantial distinction. It points out that incumbents running for the same position are not considered resigned
because the intention of the law is to allow them to continue serving their constituents and avoid a disruption in the
delivery of essential services. Those running for different positions are considered resigned because they are considered
to have abandoned their present position by their act of running for other posts.
For his part, the Solicitor General points out that the issue regarding Section 67 had already been passed upon by
the Court in the case of Dimaporo v. Mitra, Jr.[10]
Mohammad Ali Dimaporo was a congressman representing the second legislative district of Lanao del Sur. On
January 15, 1990, he filed a certificate of candidacy for the position of governor of the Autonomous Region in Muslim
Mindanao (ARMM). The COMELEC thereafter informed the House of Representatives of this matter. Then House
Speaker Ramon V. Mitra, Jr. and the Secretary of the House of Representatives Camilo L. Sabio excluded his name
from the roll of members.
Dimaporo lost in the ARMM elections. He wrote Mitra a letter expressing his desire to resume his functions as a
member of the House of Representatives. It appears that this did not materialize; thus, Dimaporo filed a petition with
the Supreme Court praying for his reinstatement.
Dimaporo claimed that his act of filing a certificate of candidacy for another position did not divest him of his seat
as a member of the House of Representatives. He alleged that Section 67 of the Omnibus Election Code was no longer
operative as it is violative of the Constitution. Dimaporo said Section 67 shortens the term of office of a congressman
on a ground not provided for under Article XVIII, Section 2 of the Constitution,[11] in relation to Article VI, Section
7.[12]
Dimaporo asserted that, as provided by law, the term of a member of the House of Representatives may only be
shortened through the following:
(1) Forfeiture of his seat by holding any other office or employment in the government or any subdivision,
agency or instrumentality thereof, including government-owned or controlled corporations or
subsidiaries;[13]
(2) Expulsion as a disciplinary action for disorderly behavior;[14]
(3) Disqualification as determined by resolution of the Electoral Tribunal in an election contest;[15] and
(4) Voluntary renunciation of office.[16]
The Court proceeded to trace the history and examine the rationale behind Section 67. We then ruled:

... rather than cut short the term of office of elective public officials, this statutory provision seeks to ensure that such
officials serve out their entire term of office by discouraging them from running for another public office and thereby
cutting short their tenure by making it clear that should they fail in their candidacy, they cannot go back to their
former position. This is consonant with the constitutional edict that all public officials must serve the people with
utmost loyalty and not trifle with the mandate which they have received from their constituents.[17]

Indeed, we have dealt squarely with the issue of the validity of Section 67 of the Omnibus Election Code
in Dimaporo v. Mitra, Jr.
Section 67 was crafted with the intention of giving flesh to the constitutional pronouncement that public service is
a public trust. The following portion of our ruling in Dimaporo is apropos:

Assemblyman Manuel M. Garcia, in answer to the query of Assemblyman Arturo Tolentino on the constitutionality of
Cabinet Bill No. 2,[18] said:

MR. GARCIA (M.M.):

Thank you, Mr. Speaker.

Mr. Speaker, on the part of the Committee, we made this proposal based on constitutional grounds. We did not
propose this amendment mainly on the rationale as stated by the Gentlemen from Manila that the officials running for
office other than the ones they are holding will be considered resigned not because of abuse of facilities of power or
the use of office facilities but primarily because under our Constitution, we have this new chapter on accountability of
public officers...

xxx
...This only means that all elective public officials should honor the mandate they have gotten from the people... a
Batasan Member who hold (sic) himself out with the people and seek (sic) their support and mandate should not be
allowed to deviate or allow himself to run for any other position unless he relinquishes or abandons his
office. Because his mandate to the people is to serve for 6 years. Now, if you allow a Batasan or a governor or a
mayor who was mandated to serve for 6 years to file for an office other than the one he was elected to, then, that
clearly shows that he has not (sic) intention to service the mandate of the people which was placed upon him and
therefore he should be considered ipso facto resigned. I think more than anything that is the accountability that the
Constitution requires of elective public officials...[19]
Section 67 is not violative of the Constitution as it does not unduly cut short the term of office of local officials. The
situation that results with the application of Section 67 is covered by the term voluntary renunciation.

Even then, the concept of voluntary renunciation of office under Section 7, Article VI of the Constitution is broad
enough to include the situation envisioned in Section 67, Article IX of B.P. Blg. 881. As discussed by the
Constitutional Commissioners:

MR. MAAMBONG:
Could I address the clarificatory question to the Committee? The term voluntary renunciation does not only appear
in Section 3; it appears in Section 6.
MR. DAVIDE:
Yes.
MR. MAAMBONG:
It is also a recurring phrase all over the constitution. Could the Committee please enlighten us exactly what voluntary
renunciation means? Is this akin to abandonment?
MR. DAVIDE:
Abandonment is voluntary. In other words, he cannot circumvent the restriction by merely resigning at any given
time on the second term.
MR. MAAMBONG:
Is the Committee saying that the term voluntary renunciation is more general than abandonment and resignation?
MR. DAVIDE:
It is more general, more embracing.

That the act, contemplated in Section 67, Article IX of B.P. Blg. 881, of filing a certificate of candidacy for another
office constitutes an overt, concrete act of voluntary renunciation of the elective office presently being held is evident
from this exchange between the Members of Parliament Arturo Tolentino and Jose Roo:

MR. ROO:
My reasonable ground is this: if you will make the person ... my, shall we say, basis is that in one case the person is
intending to run for an office which is different from his own, and therefore it should be considered, at least
from the legal significance, an intention to relinquish his office.
MR. TOLENTINO:
Yes.
MR. ROO:
And in the other, because he is running for the same position, it is otherwise.
MR. TOLENTINO:
Yes, but what I cannot see is why are you going to compel a person to quit an office which he is only intending to
leave? A relinquishment of office must be clear, must be definite.
MR. ROO:
Yes, sir. Thats precisely, Mr. Speaker, what Im saying that while I do not disagree with the conclusion that the
intention cannot be enough, but I am saying that the filing of the certificate of candidacy is an overt act of such
intention. Its not just an intention: its already there.[20]
Our foregoing ruling in Dimaporo is still applicable in this case.
Petitioners further assert that Section 67 could have been formulated without sufficient study (emphasis
supplied). Petitioners choice of words betray their own uncertainty as to whether or not the implications of Section 67
were thoroughly analyzed before such section became law. Unfortunately for petitioners, uncertainties do not justify
nullification of a law.
Moreover, it must be pointed out that this present petition is one for prohibition which is a preventive remedy. The
act sought to be enjoined had already been accomplished with the holding of the 1998 elections. Prohibition, as a rule,
does not lie to restrain an act that is already a fait accompli.[21]
WHEREFORE, the instant petition is hereby dismissed for lack of merit.
[G.R. No. 121139. July 12, 1996]

ISIDRO B. GARCIA, petitioner, vs. COMMISSION ON ELECTIONS and AUGUSTO


GARCIA, respondents.

DECISION
FRANCISCO, J.:

This is a petition for certiorari under Rule 65 seeking to nullify the Resolution of the COMELEC en
banc dated June 30, 1995[1] in SPA No. 95-034 entitled "Isidro B. Garcia vs. Augusto M. Garcia," for having
been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. The assailed resolution
reversed the previous Resolution of the Second Division of the COMELEC promulgated on May 4,
1995,[2] wherein respondent Augusto M. Garcia was declared a nuisance candidate resulting in the
cancellation of his certificate of candidacy for the mayoralty seat of Tagig.
During the May 8, 1995 local elections, petitioner Isidro B. Garcia and respondent Augusto M. Garcia
were both candidates for mayor in Tagig, Metro Manila. Claiming that respondent filed his certificate of
candidacy for no other legitimate purpose but to cause confusion and disarray among the voters of Tagig
considering the similarity in their surname, petitioner filed a petition with the COMELEC for the declaration of
respondent as a nuisance candidate pursuant to Section 69 of the Omnibus Election Code.
In its Resolution dated May 4, 1995, the COMELEC (Second Division) granted the petition and declared
respondent as a nuisance candidate. The COMELEC based its ruling on the following: 1) dubious veracity of
respondent's certificate of nomination by the PDP-LABAN; 2) failure of respondent to actively campaign; and
3) the absence of any campaign materials.
On May 10, 1995, two days after the election, respondent filed a motion for reconsideration[3] with the
COMELEC seeking the reversal of the aforementioned resolution. In the meanwhile, the canvassing of the
election returns proceeded which eventually resulted in the proclamation of petitioner on May 23, 1995 as
the winning candidate. However, another losing candidate, Ricardo Papa filed a petition for annulment of the
proclamation, and an election protest as well, with the COMELEC and the Regional Trial Court of Pasig,
respectively, against petitioner.
On June 30, 1995, the COMELEC en banc promulgated the assailed resolution, granting private
respondent's motion for reconsideration and reversing the previous resolution declaring him a nuisance
candidate, despite admitting that the motion has been rendered moot and academic as a result of petitioner's
proclamation on May 23, 1995 as winning candidate.
The COMELEC discarded petitioner's claim that respondent lacked the logistical means and machinery
to pursue a serious political campaign due to the absence of propaganda materials, and ruled that such
assumption has no bearing on the qualification of respondent to seek public office.
Petitioner is now before us seeking to nullify and set aside the resolution of the COMELEC en banc.
It is argued that the COMELEC gravely abused its discretion when it granted respondent's motion for
reconsideration despite having been rendered moot and academic by the proclamation of petitioner as duly
elected mayor of Tagig. Petitioner bewails the fact that the motion was granted with the end in view of
benefiting the pending electoral protest filed by losing candidate Ricardo Papa who, according to petitioner,
was the one who instigated and conspired with respondent to run for mayor to confuse the voters and
undermine petitioner's chances of winning.
Private respondent however denies the abovementioned imputation and contends that his only purpose
in filing a motion for reconsideration from the resolution declaring him a nuisance candidate was solely to
reacquire his legal status as a legitimate and qualified candidate for public office.
Well entrenched is the rule that where the issues have become moot and academic, there is no justiciable
controversy, thereby rendering the resolution of the same of no practical use or value. [4]
Surprisingly, despite respondent COMELEC's admission that private respondent's motion for
reconsideration has already been rendered moot and academic due to petitioner's proclamation as duly
elected mayor of Tagig in the May 8, 1995 elections, it nevertheless resolved to grant the motion.
Obviously, the assailed resolution would no longer be of any practical use or value to private respondent
considering that he did not even dispute the proclamation of petitioner as the winning candidate. In fact, even
private respondent's sole purpose in filing his motion for reconsideration to regain his legal status as a
legitimate and qualified candidate for public office has been rendered inconsequential as a result of
petitioner's proclamation.
Petitioner was proclaimed mayor of Tagig as early as May 23, 1995, while the assailed resolution was
promulgated by respondent COMELEC on June 30, 1995. Undoubtedly, there was more that ample
opportunity for the COMELEC to be apprised of supervening events that rendered private respondent's
motion moot and academic, which in turn should have guided it to properly deny the motion. But having failed
to do so, respondent COMELEC acted with grave abuse of discretion in granting the motion.
ACCORDINGLY, the petition is hereby GRANTED. The resolution of the COMELEC dated June 30,
1995 in SPA No. 95-034 is hereby SET ASIDE and a new one entered denying private respondent's motion
for reconsideration for being moot and academic.
[G.R. No. 162777. August 31, 2004]

FRANCISCO I. CHAVEZ, petitioner, vs. COMMISSION ON ELECTIONS, represented by its Chairman,


BENJAMIN S. ABALOS, ESMERALDA AMORA-LADRA, in her capacity as Acting Director IV,
National Capital Judicial Region, Commission on Elections, and the SOLICITOR
GENERAL, respondents.

DECISION
AZCUNA, J.:

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

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

Petitioner Chavez, on various dates, entered into formal agreements with certain establishments to
endorse their products. On August 18, 2003, he authorized a certain Andrew So to use his name and image
for 96 North, a clothing company. Petitioner also signed Endorsement Agreements with Konka International
Plastics Manufacturing Corporation and another corporation involved in the amusement and video games
business, G-Box. These last two agreements were entered into on October 14, 2003 and November 10,
2003, respectively.Pursuant to these agreements, three billboards were set up along the Balintawak
Interchange of the North Expressway. One billboard showed petitioner promoting the plastic products of
Konka International Plastics Manufacturing Corporation, and the other two showed petitioner endorsing the
clothes of 96 North. One more billboard was set up along Roxas Boulevardshowing petitioner promoting the
game and amusement parlors of G-Box.
On December 30, 2003, however, petitioner filed his certificate of candidacy for the position of Senator
under Alyansa ng Pag-asa, a tripartite alliance of three political parties: PROMDI, REPORMA, and Aksyon
Demokratiko.
On January 6, 2004, respondent COMELEC issued Resolution No. 6520, which contained Section 32,
the provision assailed herein. On January 21, 2004, petitioner was directed to comply with the said provision
by the COMELECs Law Department. He replied, on January 29, 2004, by requesting the COMELEC that he
be informed as to how he may have violated the assailed provision. He sent another letter dated February
23, 2004, this time asking the COMELEC that he be exempted from the application of Section 32, considering
that the billboards adverted to are mere product endorsements and cannot be construed as paraphernalia
for premature campaigning under the rules.
The COMELEC answered petitioners request by issuing another letter, dated February 27, 2004,
wherein it ordered him to remove or cause the removal of the billboards, or to cover them from public view
pending the approval of his request.
Feeling aggrieved, petitioner Chavez asks this Court that the COMELEC be enjoined from enforcing the
assailed provision. He urges this Court to declare the assailed provision unconstitutional as the same is
allegedly (1) a gross violation of the non-impairment clause; (2) an invalid exercise of police power; (3) in the
nature of an ex-post facto law; (4) contrary to the Fair Elections Act; and (5) invalid due to overbreadth.
Is Section 32 of COMELEC Resolution No. 6520 an invalid exercise of police power? Petitioner argues
that the billboards, while they exhibit his name and image, do not at all announce his candidacy for any public
office nor solicit support for such candidacy from the electorate. They are, he claims, mere product
endorsements and not election propaganda. Prohibiting, therefore, their exhibition to the public is not within
the scope of the powers of the COMELEC, he concludes.
This Court takes a contrary view. Police power, as an inherent attribute of sovereignty, is the power to
prescribe regulations to promote the health, morals, peace, education, good order, or safety, and the general
welfare of the people.[1] To determine the validity of a police measure, two questions must be asked: (1) Does
the interest of the public in general, as distinguished from those of a particular class, require the exercise of
police power? and (2) Are the means employed reasonably necessary for the accomplishment of the purpose
and not unduly oppressive upon individuals?
A close examination of the assailed provision reveals that its primary objectives are to prohibit premature
campaigning and to level the playing field for candidates of public office, to equalize the situation between
popular or rich candidates, on one hand, and lesser-known or poorer candidates, on the other, by preventing
the former from enjoying undue advantage in exposure and publicity on account of their resources and
popularity. The latter is a valid reason for the exercise of police power as held in National Press Club v.
COMELEC,[2] wherein the petitioners questioned the constitutionality of Section 11(b) of Republic Act No.
6646, which prohibited the sale or donation of print space and air time for campaigning or other political
purposes, except to the COMELEC. The obvious intention of this provision is to equalize, as far as
practicable, the situations of rich and poor candidates by preventing the former from enjoying the undue
advantage offered by huge campaign war chests. This Court ruled therein that this objective is of special
importance and urgency in a country which, like ours, is characterized by extreme disparity in income
distribution between the economic elite and the rest of society, and by the prevalence of poverty, with so
many of our population falling below the poverty line.
Moreover, petitioner cannot claim that the subject billboards are purely product endorsements and do
not announce nor solicit any support for his candidacy. Under the Omnibus Election Code, election campaign
or partisan political activity is defined as an act designed to promote the election or defeat of a particular
candidate or candidates to a public office. Activities included under this definition are:

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

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

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

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

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

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

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

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


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

Under the abovementioned Constitutional provision, the COMELEC is expressly authorized to supervise
or regulate the enjoyment or utilization of all media communication or information to ensure equal opportunity,
time, and space. All these are aimed at the holding of free, orderly, honest, peaceful, and credible elections.
Neither is Section 32 of Resolution No. 6520 a gross violation of the non-impairment clause. The non-
impairment clause of the Constitution must yield to the loftier purposes targeted by the Government.[5] Equal
opportunity to proffer oneself for public office, without regard to the level of financial resources one may have
at his disposal, is indeed of vital interest to the public.The State has the duty to enact and implement rules to
safeguard this interest. Time and again, this Court has said that contracts affecting public interest contain an
implied reservation of the police power as a postulate of the existing legal order. This power can be activated
at anytime to change the provisions of the contract, or even abrogate it entirely, for the promotion or protection
of the general welfare. Such an act will not militate against the impairment clause, which is subject to and
limited by the paramount police power.[6]
Furthermore, this Court notes that the very contracts entered into by petitioner provide that the endorsers
photograph and image shall be utilized in whatever form, mode and manner in keeping with norms of
decency, reasonableness, morals and law;[7] and in whatever form, mode and manner not contrary to law and
norms of decency,[8] and in whatever form, mode and manner in keeping with norms of decency,
reasonableness, morals and law.[9]
Petitioner also claims that Section 32 of Resolution No. 6520 is in the nature of an ex post facto law. He
urges this Court to believe that the assailed provision makes an individual criminally liable for an election
offense for not removing such advertisement, even if at the time the said advertisement was exhibited, the
same was clearly legal. Hence, it makes a person, whose name or image is featured in any such
advertisement, liable for premature campaigning under the Omnibus Election Code.[10] A close scrutiny of
this rationale, however, demonstrates its lack of persuasiveness. Section 32, although not penal in nature,
defines an offense and prescribes a penalty for said offense. Laws of this nature must operate prospectively,
except when they are favorable to the accused. It should be noted, however, that the offense defined in the
assailed provision is not the putting up of propaganda materials such as posters, streamers, stickers or
paintings on walls and other materials showing the picture, image or name of a person, and all advertisements
on print, in radio or on television showing the image or mentioning the name of a person, who subsequent to
the placement or display thereof becomes a candidate for public office. Nor does it prohibit or consider an
offense the entering of contracts for such propaganda materials by an individual who subsequently becomes
a candidate for public office. One definitely does not commit an offense by entering into a contract with private
parties to use his name and image to endorse certain products prior to his becoming a candidate for public
office. The offense, as expressly prescribed in the assailed provision, is the non-removal of the described
propaganda materials three (3) days after the effectivity of COMELEC Resolution No. 6520. If the candidate
for public office fails to remove such propaganda materials after the given period, he shall be liable under
Section 80 of the Omnibus Election Code for premature campaigning. Indeed, nowhere is it indicated in the
assailed provision that it shall operate retroactively. There is, therefore, no ex post facto law in this case.
Next, petitioner urges that Section 32 is a violation of the Fair Elections Act. According to him, under this
law, billboards are already permitted as lawful election propaganda. He claims, therefore, that the COMELEC,
in effectively prohibiting the use of billboards as a form of election propaganda through the assailed provision,
violated the Fair Elections Act. Petitioners argument is not tenable. The Solicitor General rightly points out
that the assailed provision does not prohibit billboards as lawful election propaganda. It only regulates their
use to prevent premature campaigning and to equalize, as much as practicable, the situation of all candidates
by preventing popular and rich candidates from gaining undue advantage in exposure and publicity on
account of their resources and popularity.[11] Moreover, by regulating the use of such election propaganda
materials, the COMELEC is merely doing its duty under the law. Under Sections 3 and 13 of the Fair Elections
Act, all election propaganda are subject to the supervision and regulation by the COMELEC:
SECTION 3. Lawful Election Propaganda. -- Election propaganda, whether on television, cable television radio,
newspapers or any other medium is hereby allowed for all registered political parties, national, regional, sectoral
parties or organizations participating under the party list elections and for all bona fide candidates seeking national and
local elective positions subject to the limitation on authorized expenses of candidates and political parties observance
of truth in advertising and to the supervision and regulation by the Commission on Elections (COMELEC).

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

3.1. Pamphlets, leaflets, cards, decals, stickers or other written or printed materials the size of which
does not exceed eight and one half inches in width and fourteen inches in length;
3.2. Handwritten or printed letters urging voters to vote for or against any particular political party or
candidate for public office;
3.3. Cloth, paper or cardboard posters whether framed or posted, with an area not exceeding two(2)
feet by three (3) feet, except that, at the site and on the occasion of a public meeting or rally,
or in announcing the holding of said meeting or rally, streamers not exceeding three (3) feet by
eight (8) feet in size, shall be allowed: Provided, That said streamers may be displayed five (5)
days before the date of the meeting or rally and shall be removed within twenty-four (24) hours
after said meeting or rally;
3.4. Paid advertisements in print or broadcast media: Provided, That the advertisements shall follow
the requirements set forth in Section 4 of this Act; and
3.5. All other forms of election propaganda not prohibited by the Omnibus Election Code or this Act.

xxx

SECTION 13. Authority of the COMELEC to Promulgate Rules; Election Offenses. - The COMELEC shall
promulgate and furnish all political parties and candidates and the mass media entities the rules and regulations for the
implementation of this Act, consistent with the criteria established in Article IX-C, Section 4 of the Constitution and
Section 86 of the Omnibus Election Code (Batas Pambansa Blg. 881).

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

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

Finally, petitioner contends that Section 32 of COMELEC Resolution No. 6520 is invalid because of
overbreadth.
A statute or regulation is considered void for overbreadth when it offends the constitutional principle that
a governmental purpose to control or prevent activities constitutionally subject to State regulations may not
be achieved by means that sweep unnecessarily broadly and thereby invade the area of protected
freedoms.[12]
The provision in question is limited in its operation both as to time and scope. It only disallows the
continued display of a persons propaganda materials and advertisements after he has filed a certificate of
candidacy and before the start of the campaign period. Said materials and advertisements must also show
his name and image.
There is no blanket prohibition of the use of propaganda materials and advertisements. During the
campaign period, these may be used subject only to reasonable limitations necessary and incidental to
achieving the purpose of preventing premature campaigning and promoting equality of opportunities among
all candidates.
The provision, therefore, is not invalid on the ground of overbreadth.
WHEREFORE, the petition is DISMISSED and Section 32 of COMELEC Resolution No. 6520 is declared
valid and constitutional. The prayer for a Temporary Restraining Order and/or a Writ of Preliminary Injunction
is hereby DENIED. No costs.
SO ORDERED.
[G.R. No.133842. January 26, 2000]

FEDERICO S. SANDOVAL, petitioner, vs. COMMISSION ON ELECTIONS and CANUTO SENEN A.


ORETA, respondents.

DECISION

PUNO, J.:

The petition at bar assails the order of the Commission on Elections , (COMELEC) en banc dated June 2, 1998
nullifying and setting aside the proclamation of petitioner Federico S. Sandoval as congressman-elect for the
Malabon-Navotas legislative district.

The facts are as follows:

Petitioner Federico S. Sandoval and private respondent Canuto Senen Greta, together with Pedro Domingo, Mariano
Santiago, Symaco Benito and Warren Serna, vied for the congressional seat for the Malabon-Navotas legislative
district during the election held on May 11, 1998.

On election day, after the votes have been cast and counted in the various precincts in the two municipalities, their
respective board of canvassers convened to canvass the election returns forwarded by the board of election inspectors.

In Malabon, a reception group and several canvassing committees were formed to expedite the canvass. The reception
group received, examined and recorded the sealed envelopes containing the election returns, as well as the ballot
boxes coming from the precincts. The reception group then distributed the election returns among the canvassing
committees. The committees simultaneously canvassed the election returns assigned to them in the presence of the
lawyers and watchers of the candidates.

On May 16, 1998, counsels for private respondent made a written request upon Malabon Election Officer Armando
Mallorca to furnish them with a complete list of the statement of votes so that they could verify whether all statements
of votes have been tabulated.[1] They likewise requested for a complete list of precincts in the municipality together
with the number of canvassed votes for petitioner and private respondent as of May 16, 1998. They also sought
permission to conduct an audit of the tabulation reports made by the municipal board of canvassers.[2] These requests,
however, were denied by the municipal ,board of canvassers on the following grounds: (1) that any counsel for a
candidate has neither personality nor right to conduct an audit of the tabulation report as the proceedings of the board
are presumed to be regular, and (2) that the granting of the requests would delay the proceedings of the board to the
prejudice of the will of the people of Malabon.[3]

On May 17, 1998, the Malabon municipal board of canvassers concluded its proceedings. The board issued a
certificate of canvass of votes stating that it canvassed 804 out of 805 precincts in the municipality. The certificate of
canvass showed that private respondent obtained the highest number of votes in Malabon with 57,760 votes, with
petitioner coming in second with 42,892 votes.[4]

On the same day, after obtaining copies of the statements of votes, Ma. Rosario O. Lapuz, authorized representative of
private respondent wrote then COMELEC Chairman Bernardo Pardo[5] and informed him that several election returns
were not included in the canvass conducted by the Malabon municipal board of canvassers. She moved that the
certificate of canvass issued by said board be declared "not final."[6]

On May 19, 1998, Ms. Lapuz again wrote Chairman Pardo. The letter reiterated the allegations in her letter dated May
17, 1998 and requested that the Malabon municipal board of canvassers be ordered to canvass the election returns
which it allegedly failed to include in its canvass.[7]

On May 23, 1998, private respondent filed with the COMELEC an Urgent Petition entitled "In re: Petition to Correct
Manifest Error in Tabulation of Election Returns by the Municipal Board of Canvassers of Malabon, NCR. Canuto
Tito Oreta vs. Municipal Board of Canvassers of Malabon." The petition was docketed as SPC No.98-143. It alleged
that while the certificate of canvass showed that 804 election returns were canvassed and tabulated, only 790 election
returns were actually canvassed. Private respondent contended that there was a manifest error in the non-recording or
copying of the results in 14 election returns from 14 precincts into the statement of votes. It prayed: (1) that the
municipal, board of canvassers of Malabon be reconvened to correct said manifest error by entering the results of the
elections in the 14 election returns into the statement of , votes and that the certificate of canvass be corrected to
reflect the complete results in 804 precincts; and (2) that the canvass of the results for the congressional election by
the district board of canvassers for Malabon and Navotas be suspended until the alleged manifest error is
corrected.[8]

Meanwhile, the proceedings of the municipal board of canvassers of Navotas were disrupted by the riotous exchange
of accusations by the supporters of the opposing mayoralty candidates. The COMELEC had to move the venue to the
Philippine International Convention Center in Manila to finish the canvass. On May 27, 1998, Chairman Pardo issued
a memorandum to Atty. Ma. Anne V. G. Lacuesta, Chairman, District Board of Canvassers for Malabon-Navotas,
authorizing her to immediately reconvene the district board of canvassers, complete the canvassing of the municipal
certificate of canvass and supporting statement of votes per municipality , and proclaim the winning candidate for the
congressional seat of the Malabon-Navotas legislative district.[9]

On May 28, 1998, private respondent filed with the COMELEC an Urgent Manifestation/Motion in connection with
SPC No.98-143. It prayed that the canvass of the, results of the congressional election by the district board of
canvassers be suspended until the alleged manifest error in SPC No.98-143 is corrected.[10]

At 4:15 in the afternoon on May 28, 1998, the district board of canvassers convened at the Philippine International
Convention Center. It took up private respondent's petition to correct the manifest error arising from the non-inclusion
of 19 election returns in the canvass. After examining the statement of votes by precinct and the certificate of canvass
signed and thumbmarked by three watchers from different parties, the district board of canvassers found that a total of
804 election returns were canvassed by the Malabon municipal board of canvassers.[11]

The district board of canvassers then proceeded to canvass the certificates of canvass from the two municipalities.
Counsel for private respondent requested that the canvassing be suspended until the Commission has resolved their
petition for correction of manifest error in the certificate of canvass of Malabon. The district board of canvassers,
however, denied the request for the following reasons:

"1. absence of restraining order from the Commission;

"2. order of the Chairman dated May 27, 1998 directing the district board to proceed with the canvass
and proclamation of winning candidates for the district of Malabon-Navotas;

"3. there is no irregularity in the submitted certificate of canvass from both municipalities and there
were no objections raised for both certificates of canvass of the counsels present;

"4. no report coming from the municipal board of canvassers from Malabon that there were
uncanvassed election return except for one;

"5. the municipal board of canvassers of Malabon submitted to the district board of canvassers
certificate of canvass which indicated that the number of canvassed returns for District I is 397 and
407 for District II for a total of 804 out of 805 election returns;

"6. the board has only the ministerial duty to tally the votes as reflected on the certificate of canvass
supplemented by the statement of votes and has no authority to verify allegations of irregularities in
the preparation thereof; and

"7. there is no pre-proclamation contest for the position of congressman."[12]

Private respondent's counsel sought reconsideration of the decision of the district board' of canvassers but it was
likewise denied by the board.

After canvassing the municipal certificates of canvass, the district board of canvassers proclaimed petitioner the duly
elected congressman of the legislative district of Malabon-Navotas. The board declared that petitioner obtained a total
vote of 82,339 over private respondent's 80,319 votes.[13] Petitioner took his oath of office on the same
day.[14]

The following day, on May 29, 1998, private respondent filed with the COMELEC in connection with SPC No.98-143
an "Urgent Appeal from the Decision of the Legislative District Board of Canvassers for Malabon and Navotas with
Prayer for the Nullification of the Proclamation of Federico S. Sandoval as Congressman." It alleged that there was a
verbal order from the COMELEC Chairman to suspend the canvass and proclamation of the winning candidate for
congressman of the Malabon-Navotas legislative district; that the district board of canvassers proceeded with the
canvass and proclamation despite the verbal order; and that the non-inclusion of the 19 election returns in the canvass
would result in an incomplete canvass of the election returns. It prayed that the decision of the district board of
canvassers be reversed and that the municipal board of canvassers of Malabon be reconvened to complete its canvass.
It also prayed that the proclamation of petitioner as congressman be annulled.[15]

On May 30, 1998, private respondent filed with the COMELEC an Urgent Petition docketed as SPC No.98-206. The
petition sought the annulment of , petitioner's proclamation as congressman. It alleged that at about 4:00 in the
afternoon on May 28, 1998, the COMELEC Chairman directed the district board of canvassers to suspend the canvass
and proclamation pending the resolution of the petition for correction of manifest error in the municipal certificate of
canvass of Malabon; that the district board of canvassers still proceeded with the canvass in spite of the order; that the
proclamation was made despite the non-inclusion of election returns from 19 precincts in Malabon; and that the non-
inclusion of these election returns will materially affect the result of the election. Private respondent prayed that the
proclamation of petitioner as congressman be annulled and that the municipal board of canvassers of Malabon be
ordered to reconvene to include the 19 election returns in the canvass.[16]

On June 2, 1998, the COMELEC en banc issued an order setting aside the proclamation of petitioner. The COMELEC
ruled that the proclamation by the district board of canvassers was void because: (1) it was made in defiance of the
verbal order by the COMELEC Chairman relayed through Executive Director Resurrection Z. Borra to suspend the
proclamation of the winner in the congressional election until the Commission has resolved private respondent's
petition for correction of manifest error in the certificate of canvass; and (2) it was based on an incomplete canvass.
The dispositive portion of the order reads:

"WHEREFORE, the proclamation made by the District Board of Canvassers of Malabon and
Navotas for the position of Congressman being void ab initio is no proclamation at all. Meantime, it is
hereby set aside.

"Atty .Ma. Anne Lacuesta is hereby relieved as Chairman, District Board of Canvassers of Malabon-
Navotas, and Atty. Consuelo B. Diola is named Chairman of said Board. Atty. Diola is directed to
maintain the status quo prior to the Board's unauthorized proclamation, until further orders.

"Meantime, let these cases be set for hearing en banc on 09 June 1998 at 10:00 in the morning.

"SO ORDERED."[17]

On June 8, 1998, petitioner filed this petition for certiorari seeking the annulment and reversal of said order. Petitioner
contended:

"1. Respondent COMELEC's annulment of petitioner Sandoval's proclamation as winner in the


election for congressman of Malabon-Navotas, without the benefit of prior hearing, is grossly
indecent and violates his right to due process of law.

"2. Respondent COMELEC's action on respondent Oreta's petitions violates Republic Act 7166 which
bars pre-proclamation cases in the elections of members of the House of Representative.

"3. Respondent Oreta's remedy for seeking correction of alleged manifest errors in the certificate of
canvass for members of Congress does not lie with respondent COMELEC but, initially with the
municipal board of canvassers.

"4. At any rate, respondent Oreta's right to raise questions concerning alleged manifest errors in the
Malabon certificate of canvass is barred by his failure to raise such questions before petitioner
Sandoval's proclamation.

"5. Respondent Oreta's recourse lies with the House of Representatives Electoral Tribunal which is
not precluded from passing upon the allegedly uncanvassed election returns in Malabon." [18]
On June 9, 1998, we required the respondents to comment on the petition. We also issued a temporary restraining
order mandating the COMELEC to cease and desist from implementing and enforcing the questioned order.[19]

The COMELEC nonetheless conducted a hearing on June 9, 1998 , concerning SPC No.98-143 and SPC No.98-206.

Private respondent filed his comment[20] on June 22, 1998. He argued:

"1. Respondent COMELEC committed no jurisdictional error in declaring void ab initio the
proclamation of petitioner Sandoval as Congressman-elect for the Malabon-Navotas legislative
district.

a. The premature and hasty proclamation of respondent Sandoval made by the District Board
on the basis of an incomplete canvass is illegal, hence, null and void.

b. Respondent COMELEC substantially complied with the requirements of due process in


declaring the proclamation of respondent Sandoval an absolute nullity.

"2. Respondent COMELEC properly took cognizance of respondent Oreta's petition to correct
manifest error in the certificate of canvass issued by the Malabon board.

a. While technically a pre-proclamation case, correction of manifest errors for purposes of the
congressional elections is within the power and authority of the COMELEC to order, in the
exercise of its appellate and original jurisdiction over such subject matter.

b. The failure of the Malabon board to tabulate the results of seventeen ( 17) election returns
and to record the votes supporting the certificate of canvass resulted in a manifest error in the
certificate of canvass which should be summarily corrected by ordering the Malabon board to
reconvene, canvass the 17 election returns, record the votes in the statement of votes and
prepare a new certificate of canvass."

On June 29, 1998, then Solicitor General Silvestre Bello III filed a Manifestation and Motion in Lieu of
Comment.[21] He found the assailed order of the COMELEC null and void for the following reasons:

"1. Respondent COMELEC's motu proprio and ex parte annulment of petitioner's proclamation as
winner in the election for congressman of Malabon-Navotas is tainted with grave abuse of discretion
amounting to lack or excess of jurisdiction and violated petitioner's right to due process; and

"2. Respondent COMELEC had no jurisdiction over the petitions filed by respondent Oreta, hence its
order dated June 2, 1998 annulling petitioner's proclamation is null and void."

In view of. the Solicitor General's manifestation and motion, we required the COMELEC to file its own comment.

The COMELEC filed its comment on August 11, 1998. It invoked its power of direct control and supervision over the
board of canvassers, allowing it to review, revise and reverse the board's actions. It said that it rendered the questioned
order upon finding that petitioner's proclamation was illegal and therefore void ab initio. It cited two reasons to
support its findings: first, it was made in disregard of the Chairman's verbal order to suspend the canvass and
proclamation, and second, it was based on an incomplete canvass.[22]

On August 27, 1998, the new Solicitor General, Ricardo P. Galvez, filed a Manifestation and Motion withdrawing the
Manifestation and Motion filed ,by former Solicitor General Bello. The Solicitor General, this time, upheld the
validity of the assailed order. In essence, he argued that the Malabon municipal board of canvassers failed to include
17 election returns in its canvass; that such omission constitutes manifest error in the certificate of canvass which must
be corrected by the district board of canvassers; and that the proclamation of petitioner was void ab initio because it
was based on an incomplete canvass.[23]

Petitioner and private respondent subsequently filed their respective reply, rejoinder and sur-rejoinder.

Considering the arguments raised by the parties, the issues that need to be resolved in this case are:
1. whether the COMELEC has the power to take cognizance of SPC No. 98-143 and SPC No. 98-206,
both alleging the existence 'of manifest error in the certificate of canvass issued by the Malabon
municipal board of canvassers and seeking to reconvene said board of canvassers to allow it to correct
the alleged error; and

2. whether the COMELEC's order to set aside petitioner's proclamation was valid.

On the first issue, we uphold the jurisdiction of the COMELEC over the petitions filed by private respondent. As
a general rule, candidates and registered political parties involved in an election are allowed to file pre-proclamation
cases before the COMELEC. Pre-proclamation cases refer to any question pertaining to or affecting the proceedings of
the board of canvassers which may be raised by, any candidate or by any registered political party or coalition of
political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235
and 236 in relation to the preparation, transmission, receipt, custody and appreciation of election returns.[24] The
COMELEC has exclusive jurisdiction over all pre-proclamation controversies.[25] As an exception, however, to the
general rule, Section 15 of Republic Act (RA) 7166[26]. prohibits candidates in the presidential, vice-presidential,
senatorial and congressional elections from filing pre-proclamation cases.[27] It states:

"Sec. 15. Pre-proclamation Cases Not Allowed in Elections for President, Vice-President, Senator,
and Members of the House of Representatives.-- For purposes of the elections for President, Vice-
President, Senator and Member of the House of Representatives, no pre-proclamation cases shall be
allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of
election returns or the certificates of canvass, as the case may be. However, this does not preclude
the authority of the appropriate canvassing body motu propio or upon written complaint of an
interested person to correct manifest errors in the certificate of canvass or election returns
before it."

The prohibition aims to avoid delay in the proclamation of the winner in the election, which delay might result in a
vacuum in these sensitive posts.[28] The law, nonetheless, provides an exception to the exception. The second
sentence of Section 15 allows the filing of petitions for correction of manifest errors in the certificate of canvass or
election returns even in elections for president, vice- president and members of the House of Representatives for
the simple reason that the correction of manifest error will not prolong the process of canvassing nor delay the
proclamation of the winner in the election. This rule is consistent with and complements the authority of the
COMELEC under the Constitution to, "enforce and administer all laws and regulations relative to the conduct of an,
election, plebiscite, initiative, referendum and recall"[29] and its power to "decide, except those involving the right to
vote, all questions affecting elections."[30]

Applying the foregoing rule, we hold that the Commission has jurisdiction over SPC No. 98- 143 and SPC No.98-
206, both filed by private respondent seeking to correct the alleged manifest error in the certificate of canvass issued
by the Malabon municipal board of canvassers. These petitions essentially allege that there exists a manifest error in
said certificate of canvass as the board failed to include several election returns in the canvassing. Private respondent
prays that the board be reconvened to correct said error. Section 15 of RA 7166 vests the COMELEC with
jurisdiction over cases of this nature. We reiterate the long-standing rule that jurisdiction is conferred by law
and is determined by the allegations in the petition regardless of whether or not the petitioner is entitled to the
relief sought.[31]

The authority to rule on petitions for correction of manifest error is vested in the COMELEC en banc. Section 7 of
Rule 27 of the 1993 COMELEC Rules of Procedure[32] provides that if the error is discovered before proclamation, the
board of canvassers 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. The aggrieved party may
appeal the decision of the board to the Commission and said appeal shall be heard and decided by the Commission en
banc. Section 5, however of the same rule states that a petition for correction of manifest error may be filed directly
with the Commission en banc provided that such errors could not have been discovered during the canvassing despite
the exercise of due diligence and proclamation of , the winning candidate had already been made. Thus, we held
in Ramirez vs. COMELEC:[33]

"Although in Ong, Jr. v. COMELEC 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' -- and a petition for correction of manifest error in the Statement of Votes, like SPC 95-
198 is a pre-proclamation ; controversy -- in none of the cases cited to support this proposition was
the issue the correction of a manifest error in the Statement of Votes under Sec. 231 of the Omnibus
Election Code (BP. Blg. 881) or Sec. 15 of R.A. No.7166. On the other hand, Rule 27, Sec. 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 x x x."[34]

Petitioner nonetheless contends that SPC No. 98-143 and SPC No. 98-206 must be dismissed because private
respondent failed to raise the issue of manifest error before the appropriate board of canvassers in accordance with the
second sentence of Section 15 of RA 7166.

We disagree.

The issue of manifest error in the certificate of canvass for Malabon has been raised before the district board of
canvassers before petitioner could be proclaimed and said board has in fact ruled on the issue. [35] We find this as
sufficient compliance with the law. The facts show that it was impossible for private respondent to raise the issue
before the Malabon municipal board of canvassers as it still did not have a copy of the statement of votes and the
precinct list at the time of the canvassing in the municipal level. At that time, private respondent still had no
knowledge of the alleged manifest error. He, however, lost no time in notifying the COMELEC Chairman and the
district board of the alleged error upon discovery thereof. We find petitioner's argument, therefore, to be devoid of
merit.

We now go to the second issue. Although the COMELEC is clothed with jurisdiction over the subject matter and issue
of SPC No.98-143 and SPC No. 98-206, we find the exercise of its jurisdiction tainted with illegality. We hold that
its order to set aside the proclamation of petitioner is invalid for having been rendered without due process of law.
Procedural due process demands prior notice and hearing. Then after the hearing, it is also necessary that the tribunal
show substantial evidence to support its ruling.[36] In other words, due process requires that a party be given an
opportunity to adduce his evidence to support his side of the case and that the evidence should be considered in the
adjudication of the case.[37] The facts show that COMELEC set aside the proclamation of petitioner , without the
benefit of prior notice and hearing and it rendered the questioned order based solely on private respondent's
allegations. We held in Bince, Jr. vs. COMELEC:[38]

"Petitioner cannot be deprived of his office without due process of law. Although public office is not
property under Section 1 of the Bill of Rights of the Constitution, and one cannot acquire a vested
right to public office, it is, nevertheless, a protected right. Due process in proceedings before the
COMELEC, exercising its quasi-judicial functions, requires due notice and hearing, among others.
Thus, although the COMELEC possesses, in appropriate cases, the power to annul or suspend the
proclamation of any candidate, We had ruled in Farinas vs. Commission on Elections, Reyes vs.
Commission on Elections and Gallardo vs. Commission on Elections that the COMELEC is without
power to partially or totally annul a proclamation or suspend the effects of a proclamation without
notice and hearing."[39]

Citing Section 242 of the Omnibus Election Code, private respondent argues that the COMELEC is authorized to
annul an illegal proclamation even without notice and hearing because the law states that it may motu proprio order a
partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation, if
one has been made. We reject the argument. Section 242 of the Omnibus Election Code reads:

"Sec. 242. Commission's exclusive jurisdiction of all pre-proclamation controversies.-- The


Commission shall have exclusive jurisdiction of all pre-proclamation controversies. It may motu
proprio or upon written petition, and after due notice and hearing, order the partial or total
suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation, if
one has been made, as the evidence shall warrant in accordance with the succeeding sections."

The phrase "motu proprio" does not refer to the annulment of proclamation but to the manner of initiating the
proceedings to annul a proclamation made by the board of canvassers. The law provides two ways by which
annulment proceedings may be initiated. It may be at the own initiative of the COMELEC (motu proprio) or by
written petition. In either case, notice and hearing is required. This is clear from the language of the law.

We likewise reject private respondent's assertion that the hearing held on June 9, 1998 substantially satisfies the due
process requirement. The law requires that the hearing be held before the COMELEC rules on the petition. Here, the
public respondent first issued an order annulling the proclamation of petitioner and then set the date of the hearing.
We explained in Farinas vs. COMELEC[40] the pernicious effect of such procedure:

"As aptly pointed out by the Solicitor General, 'to sanction the immediate annulment or even the
suspension of the effects of a proclamation before the petition seeking such annulment or suspension
of its effects shall have been heard would open the floodgates of unsubstantiated petitions after the
results are known, considering the propensity of the losing candidates to put up all sorts of obstacles
in an open display of unwillingness to accept defeat, or would encourage the filing of baseless
petitions not only to the damage and prejudice of winning candidates but also to the frustration of the
sovereign will of the electorate.'" (citations omitted)

Public respondent submits that procedural due process need not be observed in this case because it was merely
exercising its administrative power to review, revise and reverse the actions of the board of canvassers. It set aside the
proclamation made by the district board of canvassers for the position of congressman upon finding that it was tainted
with illegality.

We cannot accept public respondent's argument.

Taking cognizance of private respondent's petitions for annulment of petitioner's proclamation, COMELEC was not
merely performing an administrative function. The administrative powers of the COMELEC include the power to
determine the number and location of polling places, appoint election officials and inspectors, conduct registration of
voters, deputize law enforcement agencies and government instrumentalities to ensure free, orderly, honest, peaceful
and credible elections, register political parties, organizations or coalitions, accredit citizens' arms of the Commission,
prosecute election offenses, and recommend to the President the removal of or imposition of any other disciplinary
action upon any officer or employee it has deputized for violation or disregard of its directive, order or decision. In
addition, the Commission also has direct control and supervision over all personnel involved in the conduct of
election. However , the resolution of the adverse claims of private respondent and petitioner as regards the
existence of a manifest error in the questioned certificate of canvass requires the COMELEC to act as an
arbiter. It behooves the Commission to hear both parties to determine the veracity of their allegations and to
decide whether the alleged error is a manifest error. Hence, the resolution of this issue calls for the exercise by
the COMELEC of its quasi- judicial power. It has been said that where a power rests in judgment or discretion, so
that it is of judicial nature or character, but does not involve the exercise of functions of a judge, or is conferred upon
an officer other than a judicial officer, it is deemed quasi-judicial.[41] The COMELEC therefore, acting as quasi-
judicial tribunal, cannot ignore the requirements of procedural due process in resolving the petitions filed by private
respondent.

IN VIEW WHEREOF, the COMELEC order dated June 2, 1998 in SPC No. 98-143 and SPC No. 98-206 is
ANNULLED. This case is REMANDED to the COMELEC and the Commission is hereby ordered to hold a hearing
on the issues presented in SPC No. 98-143 and SPC No. 98-206, and thereafter render a decision based on the
evidence adduced and the applicable laws. The incident of whether or not petitioner may continue discharging the
functions of the office of congressman pending resolution of the case on its merit shall be addressed by the
COMELEC in the exercise of its reasonable discretion.

SO ORDERED.
[ GR No. 216607, Apr 05, 2016 ]

ARLENE LLENA EMPAYNADO CHUA v. COMELEC +

DECISION

LEONEN, J.:
Dual citizens are disqualified from running for any elective local position. They cannot successfully run and
assume office because their ineligibility is inherent in them, existing prior to the filing of their certificates of
candidacy. Their certificates of candidacy are void ab initio, and votes cast for them will be disregarded.
Consequently, whoever gamers the next highest number of votes among the eligible candidates is the
person legally entitled to the position.

This resolves a Petition for Certiorari and Prohibition[1] assailing the Commission on Elections Resolutions
dated October 17, 2013[2] and January 30, 2015.[3] The Commission on Elections annulled the "proclamation
of... Arlene Llena Empaynado Chua as Councilor for the Fourth District of Manila[,]"[4] and directed the
Board of Canvassers to reconvene and proclaim Krystle Marie C. Bacani (Bacani) as Councilor for having
garnered the next highest number of votes.[5]

On October 3, 2012, Arlene Llena Empaynado Chua (Chua) filed her Certificate of Candidacy[6] for
Councilor for the Fourth District of Manila during the May 13, 2013 National and Local Elections. The
Fourth District of Manila is entitled to six (6) seats in the Sangguniang Panlungsod.[7]

After the conduct of elections, Chua garnered the sixth highest number of votes. [8] She was proclaimed by
the Board of Canvassers on May 15, 2013.[9]

On the date of Chua's proclamation, however, Imelda E. Fragata . (Fragata) filed a Petition[10] captioned as a
"petition to declare [Chua] as a nuisance candidate"[11] and "to deny due course and/or cancel [Chua's]
Certificate of Candidacy."[12] Fragata was allegedly a registered voter in the Fourth District[13] who claimed
that Chua was unqualified to run for Councilor on two grounds: Chua was not a Filipino citizen, and she
was a permanent resident of the United States of America.[14] Fragata specifically alleged the following in
her Petition:

3. [Chua] is not a Filipino Citizen.

4. Prior to the filing of her candidacy, [Chua] has been living in the United States of America (USA) for at
least 33 years.

5. [Chua] is an immigrant and was validly issued a Green Card by the Government of the USA.

6. She resided and continues to reside [in Georgia, USA].

7. [Chua] has been a Registered Professional Nurse in the State of Georgia, USA since November 17, 1990.

8. ... [Chua's] Professional License in the USA is still to expire in 31 January 2014.[15]

The last paragraph of the Petition prayed that Chua "be disqualified as a candidate for the position of
councilor in the Fourth District of the City of Manila[.]"[16]

Answering the Petition, Chua contended that she was a natural-born Filipino, born to Filipino parents in
Cabanatuan City, Nueva Ecija.[17] With respect to her residency, Chua alleged that she had been residing in
Sampaloc, Manila since 2008[18] and had more than complied with the one-year period required to run for
Councilor.[19]

According to Chua, Fragata's Petition was belatedly filed,[20] whether it was treated as one for declaration of
a nuisance candidate[21] or for denial of due course or cancellation of certificate of candidacy.[22] Fragata
filed her Petition on May 15, 2013, which was beyond five (5) days from October 5, 2012, the last day of the
filing of certificates of candidacy.[23] The Petition was also filed beyond 25 days from October 3, 2012,[24] the
date Chua filed her Certificate of Candidacy.[25]

Chua stressed that she had already been proclaimed on May 15, 2013, the same date that Fragata filed her
Petition; hence, Fragata's proper remedy was to file a petition for quo warranto [26] under Section 253 of the
Omnibus Election Code. Chua prayed that the Commission dismiss Fragata's Petition.[27]

On June 19, 2013, Bacani filed a Motion to Intervene with Manifestation and Motion to Annul
Proclamation.[28] Bacani alleged that she likewise ran for Councilor in the Fourth District of Manila, and
that after the canvassing of votes, she ranked seventh among all the candidates, next to Chua.[29] Should
Chua be disqualified, Bacani claimed that she should be proclaimed Councilor[30] following this Court's
ruling in Maquiling v. Commission on Elections.[31]

Bacani argued that Chua, being a dual citizen, was unqualified to run for Councilor.[32] Based on an Order of
the Bureau of Immigration, Chua was allegedly naturalized as an American citizen on December 7,
1977.[33] She was issued an American passport[34] on July 14, 2006.

Chua took an Oath of Allegiance to the Republic of the Philippines on September 21, 2011. [35] Nonetheless,
Chua allegedly continued on using her

American passport, specifically on the following dates:

October 16, 2012 Departure for the United States


December 11, 2012 Arrival in the Philippines
May 30, 2013 Departure for the United States[36]

Moreover, Chua did not execute an oath of renunciation of her American citizenship.[37]

With Chua being a dual citizen at the time she filed her Certificate of Candidacy, Bacani prayed that the
Commission on Elections annul Chua's proclamation.[38]

In her Comment/Opposition (to the Motion to Intervene of Krystle Marie Bacani),[39] Chua argued that the
Motion was a belatedly filed petition to deny due course or cancel a certificate of candidacy, having been
filed after the day of the elections.[40] According to Chua, the Motion should not even be considered since
she was already proclaimed by the Board of Canvassers.[41] Thus, Chua prayed that the Motion to Intervene
be denied and expunged from the records of the case.[42]

The Commission on Elections then ordered the parties to file their respective memoranda. [43]

In her Memorandum,[44] Chua maintained that Fragata's Petition was filed out of time and should have
been outright dismissed.[45]Reiterating that she had already been proclaimed, Chua argued that Fragata's
proper remedy was a petition for quo warranto.[46]

Countering Chua's claims, Fragata and Bacani restated in their Joint Memorandum[47] that Chua was a dual
citizen disqualified from running for any elective local position.
The Commission on Elections Second Division resolved Fragata's Petition. Ruling that Bacani had a legal
interest in the matter in litigation, it allowed Bacani's Motion to Intervene.[48] The Commission said that
should Fragata's Petition be granted, the votes for Chua would not be counted. [49] In effect, Bacani would
garner the sixth highest number of votes among the qualified candidates, which would earn her a seat in the
Sangguniang Panlungsod of Manila.[50]

With respect to the nature of Fragata's Petition, the Commission on Elections held that it was one for
disqualification, regardless of the caption stating that it was a petition to declare Chua a nuisance
candidate.[51] The Petition alleged a ground for disqualification under Section 40 of the Local Government
Code,[52] specifically, that Chua was a permanent resident in the United StEites.

Since Fragata filed a petition for disqualification, Rule 25, Section 3 of the Commission on Elections Rules
of Procedure governed the period for its filing.[53] Under the Rules, a petition for disqualification should be
filed "any day after the last day for filing of certificates of candidacy, but not later than the date of the
proclamation." Fragata filed the Petition within this period, having filed it on the date of Chua's
proclamation on May 15, 2013.[54]

The Commission no longer discussed whether Chua was a permanent resident of the United States. Instead,
it found that Chua was a dual citizen when she filed her Certificate of Candidacy.[55] Although she
reacquired her Filipino citizenship in 2011 by taking an Oath of Allegiance to the Republic of the
Philippines, petitioner failed to take a sworn and personal renunciation of her American citizenship
required under Section 5(2) of the Citizenship Retention and Re-acquisition Act of 2003.[56]

Considering that Chua is a dual citizen, the Commission held that Chua was disqualified to run for
Councilor pursuant to Section 40 of the Local Government Code.[57] Consequently, Chua's Certificate of
Candidacy was void ab initio, and all votes casted for her were stray.[58]Chua's proclamation was likewise
voided, and per Maquiling, Bacani was declared to have garnered sixth highest number of votes.[59]

Thus, in the Resolution dated October 17, 2013, the Commission on Elections Second Division ruled in favor
of Fragata and Bacani.[60]The dispositive portion of the October 17, 2013 Resolution reads:

WHEREFORE, premises considered, the Commission (Second Division) RESOLVES, as it


hereby RESOLVED:

1. To ANNUL the proclamation of respondent Arlene Llena Empaynado Chua as Councilor for the
Fourth District of Manila;

2. To DIRECT the Board of Canvassers of the City of Manila


to CONVENE and PROCLAIM Intervenor Krystle Marie C. Bacani as the duly elected Councilor of
the Fourth District of the City of Manila, having obtained the sixth highest number of votes for said
position.

Let the Deputy Executive Director for Operations implement this Resolution.

SO ORDERED.[61]

Chua moved for reconsideration,[62] but the Commission on Elections En Bane denied the Motion in the
Resolution dated January 30, 2015.

Arguing that the Commission issued its October 17, 2013 and January 30, 2015 Resolutions with grave
abuse of discretion, Chua filed before this Court a Petition for Certiorari and Prohibition with prayer for
issuance of temporary restraining order and/or writ of preliminary injunction.[63] Fragata and Bacani jointly
filed their Comment,[64] while the Commission on Elections filed its Comment[65]through the Office of the
Solicitor General.
Chua emphasizes that she was already proclaimed as a duly elected Councilor.[66] Assuming that she was
ineligible to run for office, this created a permanent vacancy in the Sangguniang Panlungsod, which was to
be filled according to the rule on succession under Section 45 of the Local Government Code, and not by
proclamation of the candidate who garnered the next highest number of votes.[67]

Chua maintains that Fragata belatedly filed her Petition before the Commission on Elections. [68] Since
Fragata filed a Petition to deny due course or cancel certificate of candidacy, it should have been filed within
five (5) days from the last day for filing of certificates of candidacy, but not later than 25 days from the time
of the filing of the certificate of candidacy assailed.[69] Fragata filed the Petition on May 15, 2013, more than
25 days after Chua filed her Certificate of Candidacy on October 3, 2012.[70] The Commission on Elections,
therefore, should have outright dismissed Fragata's Petition.[71]

With her already proclaimed, Chua argues that the Commission on Elections should have respected the
voice of the people.[72] Chua prays that the Resolutions annulling her proclamation and subsequently
proclaiming Bacani be set aside.[73]

As for Fragata and Bacani as well as the Commission on Elections, all maintain that Fragata's Petition was a
petition for disqualification assailing Chua's citizenship and status as a permanent resident in the United
States.[74] The Petition, which Fragata filed on the date of Chua's proclamation, was filed within the
reglementary period.[75]

The Commission on Elections stresses that Chua was a dual citizen at the time she filed her Certificate of
Candidacy.[76] Consequently, she was ineligible to run for Councilor and was correctly considered a non-
candidate.[77] All the votes casted in Chua's favor were correctly disregarded, resulting in Bacani garnering
the next highest number of votes.[78] Following Maquiling, the Commission argues that Bacani was validly
proclaimed as Councilor, and, contrary to Chua's claim, the rule on succession under Section 45 of the Local
Government Code did not apply, with the disqualifying circumstance existing prior to the filing of the
Certificate of Candidacv.[79]

Although Chua was already proclaimed, the Commission on Elections argues that "[t]he will of the people
as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed
that the candidate was qualified."[80] Fragata, Bacani, and the Commission on Elections pray that the
Petition for Certiorari and Prohibition be dismissed.[81]

The issues for this Court's resolution are the following:

First, whether private respondent Imelda E. Fragata filed a petition for disqualification or a petition to deny
due course or cancel certificate of candidacy; and

Second, whether the rule on succession under Section 45 of the Local Government Code applies to this case.

We dismiss the Petition. The allegations of private respondent Fragata's Petition before the Commission on
Elections show that it was a timely filed petition for disqualification. Moreover, the Commission on
Elections did not gravely abuse its discretion in disqualifying petitioner Arlene Llena Empaynado Chua,
annulling her proclamation, and subsequently proclaiming private respondent Krystle Marie C. Bacani, the
candidate who garnered the sixth highest number of votes among the qualified candidates.

As this Court has earlier observed in Fermin v. Commission on Elections,[82] members of the bench and the
bar have "indiscriminately interchanged"[83] the remedies of a petition to deny due course or cancel
certificate of candidacy and a petition for disqualification, thus "adding confusion to the already difficult
state of our jurisprudence on election laws."[84]
The remedies, however, have different grounds and periods for their filing. The remedies have different
legal consequences.

A person files a certificate of candidacy to announce his or her candidacy and to declare his or her eligibility
for the elective office indicated in the certificate.[85] Section 74 of the Omnibus Election Code on the
contents of a certificate of candidacy states:

Sec. 74. Contents of certificate of candidacy. - The certificate of candidacy shall state that the person
filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for
Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or
district or section which he seeks to represent; the political party to which he belongs; civil status; his date
of birth; residence; his post office address for all election purposes; his profession or occupation; that he
will support and defend the Constitution of the Philippines and will maintain true faith and allegiance
thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted
authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation
imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the
facts stated in the certificate of candidacy are true to the best of his knowledge.

Unless a candidate has officially changed his name through a court approved proceeding, a candidate shall
use in a certificate of candidacy the name by which he has been baptized, or if has not been baptized in any
church or religion, the name registered in the office of the local civil registrar or any other name allowed
under the provisions of existing law or, in the case of a Muslim, his Hadjiname after performing the
prescribed religious pilgrimage: Provided, That when there are two or more candidates for an office with
the same name and surname, each candidate, upon being made aware of such fact, shall state his paternal
and maternal surname, except the incumbent who may continue to use the name and surname stated in his
certificate of candidacy when he was elected. He may also include one nickname or stage name by which he
is generally or popularly known in the locality.

The person filing a certificate of candidacy shall also affix his latest photograph, passport size; a statement
in duplicate containing his bio-data and program of government not exceeding one hundred words, if he so
desires.

The Commission on Elections has the ministerial duty to receive and acknowledge receipt of certificates of
candidacy.[86] However, under Section 78 of the Omnibus Election Code,[87] the Commission may deny due
course or cancel a certificate of candidacy through a verified petition filed exclusively on the ground that
"any material representation contained therein as required under Section 74 hereof is false." The "material
representation" referred to in Section 78 is that, which involves the eligibility or qualification for the office
sought by the person who filed the certificate.[88] Section 78 must, therefore, be read "in relation to the
constitutional and statutory provisions on qualifications or eligibility for public office." [89] Moreover, the
false representation "must consist of a deliberate attempt to mislead, misinform, or hide a fact which would
otherwise render a candidate ineligible."[90]

A person intending to run for public office must not only possess the required qualifications for the position
for which he or she intends to run. The candidate must also possess none of the grounds for disqualification
under the law. As Justice Vicente V. Mendoza said in his Dissenting Opinion in Romualdez-Marcos v.
Commission on Elections,[91] "that an individual possesses the qualifications for a public office does not
imply that he is not disqualified from becoming a candidate or continuing as a candidate for a public office
and vice-versa."[92]

Section 68 of the Omnibus Election Code provides for grounds in filing a petition for disqualification:

Sec. 68 Disqualifications. - Any candidate who, in action or protest in which he is a party is declared by
final decision of a competent court guilty of, or found by the Commission of having (a) given money or other
material consideration to influence, induce or corrupt the voters or public officials performing 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 Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 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 of a foreign
country in accordance with the residence requirement provided for in the election laws.

Apart from the grounds provided in Section 68, any of the grounds in Section 12 of the Omnibus Election
Code as well as in Section 40 of the Local Government Code may likewise be raised in a petition for
disqualification. Section 12 of the Omnibus Election Code states:

Sec. 12. Disqualifications. - Any person who has been declared by competent authority insane or
incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion, or for any
offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving
moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given
plenary pardon or granted amnesty.

This disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by
competent authority that said insanity or incompetence had been removed or after the expiration of a
period of five years from his service of sentence, unless within the same period he again becomes
disqualified.

Disqualifications specifically applicable to those running for local elective positions are found in Section 40
of the Local Government Code:

SECTION 40. Disqualifications. - The following persons are disqualified from running for any elective
local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable
by one (1) year or more of imprisonment, within two (2) years after serving sentence;

(b) Those removed from office as a result of an administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and
continue to avail of the same right after the effectivity of this Code; and

(g) The insane or feeble-minded.

Private respondent Fragata alleges in her Petition that petitioner is a permanent resident in the United
States, a green card holder who, prior to the filing of her Certificate of Candidacy for Councilor, has resided
in the State of Georgia for 33 years. She anchors her Petition on Section 40 of the Local Government Code,
which disqualifies permanent residents of a foreign country from running for any elective local position.

It is true that under Section 74 of the Omnibus Election Code, persons who file their certificates of
candidacy declare that they are not a permanent resident or immigrant to a foreign country. Therefore, a
petition to deny due course or cancel a certificate of candidacy may likewise be filed against a permanent
resident of a foreign country seeking an elective post in the p Philippines on the ground of material
misrepresentation in the certificate of A candidacy.[93]

What remedy to avail himself or herself of, however, depends on the petitioner. If the false material
representation in the certificate of candidacy relates to a ground for disqualification, the petitioner may
choose whether to file a petition to deny due course or cancel a certificate of candidacy or a petition for
disqualification, so long as the petition filed complies with the requirements under the law. [94]

Before the Commission on Elections, private respondent Fragata had a choice of filing either a petition to
deny due course or cancel petitioner's certificate of candidacy or a petition for disqualification. In her
Petition, private respondent Fragata did not argue that petitioner made a false material representation in
her Certificate of Candidacy; she asserted that petitioner was a permanent resident disqualified to run for
Councilor under Section 40 of the Local Government Code. Private respondent Fragata's Petition, therefore,
was a petition for disqualification.

It follows that private respondent Fragata timely filed her Petition before the Commission on Elections.
Under Rule 25, Section 3 of the Rules of Procedure of the Commission, a petition for disqualification "shall
be filed any day after the last day for filing of certificates of candidacy, but not later that the date of
proclamation." Private respondent Fragata filed her Petition on the date of petitioner's proclamation on
May 15, 2013. The Commission on Elections did not gravely abuse its discretion in taking cognizance of
private respondent Fragata's Petition.

In addition, the Commission on Elections correctly admitted private respondent Bacani's pleading-in-
intervention.

An adverse decision against petitioner would require a pronouncement as to who should assume the
position of Councilor. Hence, those who believe that they are entitled to the position may prove their legal
interest in the matter in litigation[95] and may properly intervene for a complete disposition of the case.

Private respondent Bacani claims that she is entitled to the position of Councilor. In her Motion to
Intervene, she argues for petitioner's disqualification and alleges the circumstances surrounding
petitioner's dual citizenship. She then cites Maquiling, arguing that she should be proclaimed a in lieu of
petitioner because she obtained the sixth highest number of votes among the qualified candidates. Private
respondent Bacani's intervention was, therefore, proper.

II

The Commission on Elections did not gravely abuse its discretion in disqualifying petitioner, annulling her
proclamation, and subsequently proclaiming private respondent Bacani as the duly elected Councilor for
the Fourth District of Manila.

Petitioner was born to Filipino parents in 1967, which makes her a natural-born Filipino under the 1935
Constitution.[96] Ten years later, on December 7, 1977, petitioner became a naturalized American. Hence,
she lost her Filipino citizenship pursuant to Section 1 of Commonwealth Act No. 63. [97]

It was on September 21, 2011 when petitioner took an Oath of Allegiance to the Republic of the Philippines,
thus reacquiring her Filipino citizenship.[98] From September 21, 2011 up to the present, however, petitioner
failed to execute a sworn and personal renunciation of her foreign citizenship particularly required of those
seeking elective public office. Section 5(2) of the Citizenship Retention and Re-acquisition Act of 2003
provides:
SECTION 5. Civil and Political Rights and Liabilities. - Those who retain or re-acquire Philippine
citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities
and responsibilities under existing laws of the Philippines and the following conditions:
....

(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such
public office as required by the Constitution and existing laws and, at the time of the filing of the certificate
of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public
officer authorized to administer an oath[.]

Petitioner cannot claim that she has renounced her American citizenship by taking the Oath of Allegiance.
The oath of allegiance and the sworn and personal renunciation of foreign citizenship are separate
requirements, the latter being an additional requirement for qualification to run for public office. In Jacot
v. Dal:[99]

[T]he oath of allegiance contained in the Certificate of Candidacy, which is substantially similar to the one
contained in Section 3 of Republic Act No. 9225, does not constitute the personal and sworn renunciation
sought under Section 5(2) of Republic Act No. 9225. It bears to emphasize that the said oath of allegiance is
a general requirement for all those who wish to run as candidates in Philippine elections; while the
renunciation of foreign citizenship is an additional requisite only for those who have retained or reacquired
Philippine citizenship under Republic Act No. 9225 and who seek elective public posts, considering their
special circumstance of having more than one citizenship.[100]

With petitioner's failure to execute a personal and sworn renunciation of her American citizenship,
petitioner was a dual citizen at the time she filed her Certificate of Candidacy on October 3, 2012. Under
Section 40 of the Local Government Code, she was disqualified to run for Councilor in the Fourth District of
Manila during the 2013 National and Local Elections.

Petitioner, however, argues that the Commission on Elections gravely abused its discretion in proclaiming
private respondent Bacani, the mere seventh placer among the candidates for Councilor and, therefore, not
the electorate's choice. Petitioner maintains that the vacancy left by her disqualification should be filled
according to the rule on succession under Section 45(a)(l) of the Local Government Code, which provides:

SECTION 45. Permanent Vacancies in the Sanggunian. - (a) Permanent vacancies in the
sanggunian where automatic successions provided above do not apply shall be filled by appointment in the
following manner:

(1) The President, through the Executive Secretary, in the case of the sangguniang panlalawigan and the
sangguniang panlungsod of highly urbanized cities and independent component cities[.]

The permanent vacancies referred to in Section 45 are those arising "when an elective local official fills a
higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily
resigns, or is otherwise permanently incapacitated to discharge the functions of his office."[101] In these
situations, the vacancies were caused by those whose certificates of candidacy were valid at the time of the
filing "but subsequently had to be cancelled because of a violation of law that took place, or a legal
impediment that took effect, after the filing of the certificate of candidacy."[102]

The rule on succession under Section 45, however, would not apply if the permanent vacancy was caused by
one whose certificate of candidacy was void ab initio. Specifically with respect to dual citizens, their
certificates of candidacy are void ab initio because they possess "a substantive [disqualifying circumstance] .
. . [existing] prior to the filing of their certificate of candidacy."[103] Legally, they should not even be
considered candidates. The votes casted for them should be considered stray and should not be counted.[104]
In cases of vacancies caused by those with void ab initio certificates of candidacy, the person legally entitled
to the vacant position would be the candidate who garnered the next highest number of votes among those
eligible.[105] In this case, it is private respondent Bacani who is legally entitled to the position of Councilor,
having garnered the sixth highest number of votes among the eligible candidates. The Commission on
Elections correctly proclaimed private respondent Bacani in lieu of petitioner.

Petitioner may have garnered more votes than private respondent Bacani. She may have already been
proclaimed. Nevertheless, elections are more than a numbers game. Hence, in Maquiling:

The ballot cannot override the constitutional and statutory requirements for qualifications and
disqualifications of candidates. When the law requires certain qualifications to be possessed or that certain
disqualifications be not possessed by persons desiring to serve as elective public officials, those
qualifications must be met before one even becomes a candidate. When a person who is not qualified is
voted for and eventually garners the highest number of votes, even the will of the electorate expressed
through the ballot cannot cure the defect in the qualifications of the candidate. To rule otherwise is to
trample upon and rent asunder the very law that sets forth the qualifications and disqualifications of
candidates. We might as well write off our election laws if the voice of the electorate is the sole determinant
of who should be proclaimed worthy to occupy elective positions in our republic.
....

As in any contest, elections are governed by rules that determine the qualifications and disqualifications of
those who are allowed to participate as players. When there are participants who turn out to be ineligible,
their victory is voided and the laurel is awarded to the next in rank who does not possess any of the
disqualifications nor lacks any of the qualifications set in the rules to be eligible as candidates.[106]

All told, petitioner Arlene Llena Empaynado Chua is a dual citizen correctly disqualified from running for
the position of Councilor in the Fourth District of Manila during the 2013 National and Local elections.
With her dual citizenship existing prior to the filing of the certificate of candidacy, her Certificate of
Candidacy was void ab initio. She was correctly considered a non-candidate. All votes casted for her were
stray, and the person legally entitled to the position is private respondent Krystle Marie C. Bacani, the
candidate with the next highest number of votes among the eligible candidates. The Commission on
Elections did not gravely abuse its discretion in annulling Chua's proclamation and subsequently
proclaiming private respondent Bacani.

WHEREFORE, the Petition for Certiorari and Prohibition is DISMISSED. This Decision is immediately
executory.

SO ORDERED.