THIRD DIVISION [G.R. No.

166408, October 06, 2008] QUEZON CITY AND THE CITY TREASURER OF QUEZON CITY, PETITIONERS, VS. ABS-CBN BROADCASTING CORPORATION, RESPONDENT. DECISION
REYES, R.T., J.: CLAIMS for tax exemption must be based on language in law too plain to be mistaken. It cannot be made out of inference or implication. The principle is relevant in this petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) and that[2] of the Regional Trial Court (RTC) ordering the refund and declaring invalid the imposition and collection of local franchise tax by the City Treasurer of Quezon City on ABS-CBN Broadcasting Corporation (ABS-CBN). The Facts Petitioner City Government of Quezon City is a local government unit duly organized and existing by virtue of Republic Act (R.A.) No. 537, otherwise known as the Revised Charter of Quezon City. Petitioner City Treasurer of Quezon City is primarily responsible for the imposition and collection of taxes within the territorial jurisdiction of Quezon City. Under Section 31, Article 13 of the Quezon City Revenue Code of 1993,[3] a franchise tax was imposed on businesses operating within its jurisdiction. The provision states: Section 31. Imposition of Tax. - Any provision of special laws or grant of tax exemption to the contrary notwithstanding, any person, corporation, partnership or association enjoying a franchise whether issued by the national government or local government and, doing business in Quezon City, shall pay a franchise tax at the rate of ten percent (10%) of one percent (1%) for 1993-1994, twenty percent (20%) of one percent (1%) for 1995, and thirty percent (30%) of one percent (1%) for 1996 and the succeeding years thereafter, of gross receipts and sales derived from the operation of the business in Quezon City during the preceding calendar year. On May 3, 1995, ABS-CBN was granted the franchise to install and operate radio and television broadcasting stations in the Philippines under R.A. No. 7966.[4] Section 8 of R.A. No. 7966 provides the tax liabilities of ABS-CBN which reads: Section 8. Tax Provisions. - The grantee, its successors or assigns, shall be liable to pay the same taxes on their real estate, buildings and personal property, exclusive of this franchise, as other persons or corporations are now hereafter may be required by law to pay. In addition thereto, the grantee, its successors or assigns, shall pay a franchise tax equivalent to three percent (3%) of all gross receipts of the radio/television business transacted under this franchise by the grantee, its successors or assigns, and the said percentage tax shall be in lieu of all taxes on this franchise or earnings thereof; Provided that the grantee, its successors or assigns shall continue to be liable for income taxes under Title II of the National Internal Revenue Code pursuant to Section 2 of Executive No. 72 unless the latter enactment is amended or repealed, in which case the amendment or repeal shall be applicable thereto. (Emphasis added) ABS-CBN had been paying local franchise tax imposed by Quezon City. However, in view of the above provision in R.A. No. 9766 that it "shall pay a franchise tax x x x in lieu of all taxes," the corporation developed the opinion that it is not liable to pay the local franchise tax imposed by Quezon City. Consequently, ABS-CBN paid under protest the local franchise tax imposed by Quezon City on the dates, in the amounts and under the official receipts as follows:
O.R. No. Date Amount Paid

2464274 2484651 2536134 8354906 0048756 0067352 Total

07-18-95 10-20-95 1-22-96 1-23-97 1-23-97 4-03-97

P 1,489,977.28 1,489,977.28 2,880,975.65 8,621,470.83 2,731,135.81 2,731,135.81 P19,944,672.66[5]

On January 29, 1997, ABS-CBN filed a written claim for refund for local franchise tax paid to Quezon City for 1996 and for the first quarter of 1997 in the total amount of Fourteen Million Two Hundred Thirty-Three Thousand Five Hundred Eighty-Two and 29/100 centavos (P14,233,582.29) broken down as follows:
O.R. No. 2536134 8354906 0048756 Total Date 1-22-96 1-23-97 1-23-97 Amount Paid P 2,880,975.65 8,621,470.83 2,731,135.81 P14,233,582.29[6]

In a letter dated March 3, 1997 to the Quezon City Treasurer, ABS-CBN reiterated its claim for refund of local franchise taxes paid. On June 25, 1997, for failure to obtain any response from the Quezon City Treasurer, ABS-CBN filed a complaint before the RTC in Quezon City seeking the declaration of nullity of the imposition of local franchise tax by the City Government of Quezon City for being unconstitutional. It likewise prayed for the refund of local franchise tax in the amount of Nineteen Million Nine Hundred Forty-Four Thousand Six Hundred Seventy-Two and 66/100 centavos (P19,944,672.66) broken down as follows:
O.R. No. 2464274 2484651 2536134 8354906 0048756 0067352 Total Date 7-18-95 10-20-95 1-22-96 1-23-97 1-23-97 4-03-97 Amount Paid P 1,489,977.28 1,489,977.28 2,880,975.65 8,621,470.83 2,731,135.81 2,731,135.81 P19,944,672.66[7]

Quezon City argued that the "in lieu of all taxes" provision in R.A. No. 9766 could not have been intended to prevail over a constitutional mandate which ensures the viability and self-sufficiency of local government units. Further, that taxes collectible by and payable to the local government were distinct from taxes collectible by and payable to the national government, considering that the Constitution specifically declared that the taxes imposed by local government units "shall accrue exclusively to the local governments." Lastly, the City contended that the exemption claimed by ABS-CBN under R.A. No. 7966 was withdrawn by Congress when the Local Government Code (LGC) was passed. [8] Section 193 of the LGC provides: Section 193. Withdrawal of Tax Exemption Privileges. - Unless otherwise provided in this Code, tax exemptions or incentives granted to, or presently enjoyed by all persons, whether natural or juridical, including government-owned or -controlled corporations, except local water districts, cooperatives duly registered under R.A. 6938, non-stock and non-profit hospitals and educational institutions,are hereby withdrawn upon the effectivity of this Code. (Emphasis added) On August 13, 1997, ABS-CBN filed a supplemental complaint adding to its claim for refund the local franchise tax paid for the third quarter of 1997 in the amount of Two Million Seven Hundred Thirty-One Thousand One Hundred Thirty-Five and 81/100 centavos (P2,731,135.81) and of other amounts of local franchise tax as may have been and will be paid by ABS-CBN until the resolution of the case. Quezon City insisted that the claim for refund must fail because of the absence of a prior written claim for it. RTC and CA Dispositions On January 20, 1999, the RTC rendered judgment declaring as invalid the imposition on and collection from ABS-CBN of local franchise tax paid pursuant to Quezon City Ordinance No. SP-91, S-93, after the enactment of R.A. No. 7966, and ordered the refund of all payments made. The dispositive portion of the RTC decision reads: WHEREFORE, judgment is hereby rendered declaring the imposition on and collection from plaintiff ABS-CBN BROADCASTING CORPORATION of local franchise taxes pursuant to Quezon City Ordinance No. SP-91, S-93

after the enactment of Republic Act No. 7966 to be invalid, and, accordingly, the Court hereby orders the defendants to refund all its payments made after the effectivity of its legislative franchise on May 3, 1995. SO ORDERED.[9] In its decision, the RTC ruled that the "in lieu of all taxes" provision contained in Section 8 of R.A. No. 7966 absolutely excused ABS-CBN from the payment of local franchise tax imposed under Quezon City Ordinance No. SP-91, S-93. The intent of the legislature to excuse ABS-CBN from payment of local franchise tax could be discerned from the usage of the "in lieu of all taxes" provision and from the absence of any qualification except income taxes. Had Congress intended to exclude taxes imposed from the exemption, it would have expressly mentioned so in a fashion similar to the proviso on income taxes. The RTC also based its ruling on the 1990 case of Province of Misamis Oriental v. Cagayan Electric Power and Light Company, Inc. (CEPALCO). [10] In said case, the exemption of respondent electric company CEPALCO from payment of provincial franchise tax was upheld on the ground that the franchise of CEPALCO was a special law, while the Local Tax Code, on which the provincial ordinance imposing the local franchise tax was based, was a general law. Further, it was held that whenever there is a conflict between two laws, one special and particular and the other general, the special law must be taken as intended to constitute an exception to the general act. The RTC noted that the legislative franchise of ABS-CBN was granted years after the effectivity of the LGC. Thus, it was unavoidable to conclude that Section 8 of R.A. No. 7966 was an exception since the legislature ought to be presumed to have enacted it with the knowledge and awareness of the existence and prior enactment of Section 137[11] of the LGC. In addition, the RTC, again citing the case of Province of Misamis Oriental v. Cagayan Electric Power and Light Company, Inc. (CEPALCO),[12] ruled that the imposition of the local franchise tax was an impairment of ABS-CBN's contract with the government. The imposition of another franchise on the corporation by the local authority would constitute an impairment of the former's charter, which is in the nature of a private contract between it and the government. As to the amounts to be refunded, the RTC rejected Quezon City's position that a written claim for refund pursuant to Section 196 of the LGC was a condition sine qua non before filing the case in court. The RTC ruled that although Fourteen Million Two Hundred Thirty-Three Thousand Five Hundred Eighty-Two and 29/100 centavos (P14,233,582.29) was the only amount stated in the letter to the Quezon City Treasurer claiming refund, ABS-CBN should nonetheless be also refunded of all payments made after the effectivity of R.A. No. 7966. The inaction of the City Treasurer on the claim for refund of ABS-CBN legally rendered any further claims for refund on the part of plaintiff absurd and futile in relation to the succeeding payments. The City of Quezon and its Treasurer filed a motion for reconsideration which was subsequently denied by the RTC. Thus, appeal was made to the CA. On September 1, 2004, the CA dismissed the petition of Quezon City and its Treasurer. According to the appellate court, the issues raised were purely legal questions cognizable only by the Supreme Court. The CA ratiocinated: For another, the issues which appellants submit for this Court's consideration are more of legal query necessitating a legal opinion rather than a call for adjudication on the matter in dispute. xxxx The first issue has earlier been categorized in Province of Misamis Oriental v. Cagayan Electric and Power Co., Inc. to be a legal one. There is no more argument to this. The next issue although it may need the reexamination of the pertinent provisions of the local franchise and the legislative franchise given to appellee, also needs no evaluation of facts. It suffices that there may be a conflict which may need to be reconciled, without regard to the factual backdrop of the case.

The last issue deals with a legal question, because whether or not there is a prior written claim for refund is no longer in dispute. Rather, the question revolves on whether the said requirement may be dispensed with, which obviously is not a factual issue.[13] On September 23, 2004, petitioner moved for reconsideration. The motion was, however, denied by the CA in its Resolution dated December 16, 2004. Hence, the present recourse. Issues Petitioner submits the following issues for resolution: I. Whether or not the phrase "in lieu of all taxes" indicated in the franchise of the respondent appellee (Section 8 of RA 7966) serves to exempt it from the payment of the local franchise tax imposed by the petitionersappellants. II. Whether or not the petitioners-appellants raised factual and legal issues before the Honorable Court of Appeals.[14] Our Ruling The second issue, being procedural in nature, shall be dealt with immediately. But there are other resultant issues linked to the first. I. The dismissal by the CA of petitioners' appeal is in order because it raised purely legal issues, namely:
1) 2) 3)

Whether appellee, whose franchise expressly provides that its payment of franchise tax shall be in lieu of all taxes in this franchise or earnings thereof, is absolutely excused from paying the franchise tax imposed by appellants; Whether appellants' imposition of local franchise tax is a violation of appellee's legislative franchise; and Whether one can do away with the requirement on prior written claim for refund.[15]

Obviously, these are purely legal questions, cognizable by this Court, to the exclusion of all other courts. There is a question of law when the doubt or difference arises as to what the law is pertaining to a certain state of facts.[16] Section 2, Rule 50 of the Rules of Court provides that an appeal taken to the CA under Rule 41 raising only questions of law is erroneous and shall be dismissed, issues of pure law not being within its jurisdiction.[17] Consequently, the dismissal by the CA of petitioners' appeal was in order. In the recent case of Sevilleno v. Carilo,[18] this Court ruled that the dismissal of the appeal of petitioner was valid, considering the issues raised there were pure questions of law, viz.: Petitioners interposed an appeal to the Court of Appeals but it was dismissed for being the wrong mode of appeal. The appellate court held that since the issue being raised is whether the RTC has jurisdiction over the subject matter of the case, which is a question of law, the appeal should have been elevated to the Supreme Court under Rule 45 of the 1997 Rules of Civil Procedure, as amended. Section 2, Rule 41 of the same Rules which governs appeals from judgments and final orders of the RTC to the Court of Appeals, provides: SEC. 2. Modes of appeal. (a)

(b) (c)

Ordinary appeal. - The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require. In such cases, the record on appeal shall be filed and served in like manner. Petition for review. - The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule 42. Appeal by certiorari. - In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45.

In Macawili Gold Mining and Development Co., Inc. v. Court of Appeals, we summarized the rule on appeals as follows:
(1) (2) (3)

In all cases decided by the RTC in the exercise of its original jurisdiction, appeal may be made to the Court of Appeals by mere notice of appeal where the appellant raises questions of fact or mixed questions of fact and law; In all cases decided by the RTC in the exercise of its original jurisdiction where the appellant raises only questions of law, the appeal must be taken to the Supreme Court on a petition for review on certiorari under Rule 45; All appeals from judgments rendered by the RTC in the exercise of its appellate jurisdiction, regardless of whether the appellant raises questions of fact, questions of law, or mixed questions of fact and law, shall be brought to the Court of Appeals by filing a petition for review under Rule 42.

It is not disputed that the issue brought by petitioners to the Court of Appeals involves the jurisdiction of the RTC over the subject matter of the case. We have a long standing rule that a court's jurisdiction over the subject matter of an action is conferred only by the Constitution or by statute. Otherwise put, jurisdiction of a court over the subject matter of the action is a matter of law. Consequently, issues which deal with the jurisdiction of a court over the subject matter of a case are pure questions of law. As petitioners' appeal solely involves a question of law, they should have directly taken their appeal to this Court by filing a petition for review on certiorari under Rule 45, not an ordinary appeal with the Court of Appeals under Rule 41. Clearly, the appellate court did not err in holding that petitioners pursued the wrong mode of appeal. Indeed, the Court of Appeals did not err in dismissing petitioners' appeal. Section 2, Rule 50 of the same Rules provides that an appeal from the RTC to the Court of Appeals raising only questions of law shall be dismissed; and that an appeal erroneously taken to the Court of Appeals shall be dismissed outright, x x x.[19] (Emphasis added) However, to serve the demands of substantial justice and equity, the Court opts to relax procedural rules and rule upon on the merits of the case. In Ong Lim Sing Jr. v. FEB Leasing and Finance Corporation,[20] this Court stated: Courts have the prerogative to relax procedural rules of even the most mandatory character, mindful of the duty to reconcile both the need to speedily put an end to litigation and the parties' right to due process. In numerous cases, this Court has allowed liberal construction of the rules when to do so would serve the demands of substantial justice and equity. In Aguam v. Court of Appeals, the Court explained: "The court has the discretion to dismiss or not to dismiss an appellant's appeal. It is a power conferred on the court, not a duty. The "discretion must be a sound one, to be exercised in accordance with the tenets of justice and fair play, having in mind the circumstances obtaining in each case." Technicalities, however, must be avoided. The law abhors technicalities that impede the cause of justice. The court's primary duty is to render or dispense justice. "A litigation is not a game of technicalities." "Lawsuits unlike duels are not to be won by a rapier's thrust. Technicality, when it deserts its proper office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant consideration from courts." Litigations must be decided on their merits and not on technicality. Every party litigant must be afforded the amplest opportunity for the proper and just determination of his cause, free from the unacceptable plea of technicalities. Thus, dismissal of appeals purely on technical grounds is frowned upon where the policy of the court is to encourage hearings of appeals on their merits and the rules of procedure ought not to be applied in a very rigid, technical sense; rules of procedure are used only to help secure, not override substantial justice. It is a far better and more prudent course of action for the court to excuse a technical lapse and afford the parties a review of the case on appeal to attain the ends of justice rather than dispose of the case on technicality and cause a grave injustice to the parties, giving a false impression of speedy disposal of cases while actually resulting in more delay, if not a miscarriage of justice. [21] II. The "in lieu of all taxes" provision in its franchise does not exemptABS-CBN from payment of local franchise tax. A. The present controversy essentially boils down to a dispute between the inherent taxing power of Congress and the delegated authority to tax of local governments under the 1987 Constitution and effected under the LGC of 1991. The power of the local government of Quezon City to impose franchise tax is based on Section 151 in relation to Section 137 of the LGC, to wit:

Section 137. Franchise Tax. - Notwithstanding any exemption granted by any law or other special law, the province may impose a tax on businesses enjoying a franchise, at the rate not exceeding fifty percent (50%) of one percent (1%) of the gross annual receipts for the preceding calendar year based on the incoming receipt, or realized within its territorial jurisdiction. x x x xxxx Section 151. Scope of Taxing Powers. - Except as otherwise provided in this Code, the city may levy the taxes, fees and charges which the province or municipality may impose: Provided, however, That the taxes, fees and charges levied and collected by highly urbanized and component cities shall accrue to them and distributed in accordance with the provisions of this Code. The rates of taxes that the city may levy may exceed the maximum rates allowed for the province or municipality by not more than fifty percent (50%) except the rates of professional and amusement taxes. (Emphasis supplied) Such taxing power by the local government, however, is limited in the sense that Congress can enact legislation granting exemptions. This principle was upheld in City Government of Quezon City, et al. v. Bayan Telecommunications, Inc.[22] Said this Court: This thus raises the question of whether or not the City's Revenue Code pursuant to which the city treasurer of Quezon City levied real property taxes against Bayantel's real properties located within the City effectively withdrew the tax exemption enjoyed by Bayantel under its franchise, as amended. Bayantel answers the poser in the negative arguing that once again it is only "liable to pay the same taxes, as any other persons or corporations on all its real or personal properties, exclusive of its franchise." Bayantel's posture is well-taken. While the system of local government taxation has changed with the onset of the 1987 Constitution, the power of local government units to tax is still limited. As we explained inMactan Cebu International Airport Authority: "The power to tax is primarily vested in the Congress; however, in our jurisdiction, it may be exercised by local legislative bodies, no longer merely be virtue of a valid delegation as before, but pursuant to direct authority conferred by Section 5, Article X of the Constitution. Under the latter, the exercise of the power may be subject to such guidelines and limitations as the Congress may provide which, however, must be consistent with the basic policy of local autonomy. x x x" Clearly then, while a new slant on the subject of local taxation now prevails in the sense that the former doctrine of local government units' delegated power to tax had been effectively modified with Article X, Section 5 of the 1987 Constitution now in place, the basic doctrine on local taxation remains essentially the same. For as the Court stressed in Mactan, "the power to tax is [still] primarily vested in the Congress." This new perspective is best articulated by Fr. Joaquin G. Bernas, S.J., himself a Commissioner of the 1986 Constitutional Commission which crafted the 1987 Constitution, thus: "What is the effect of Section 5 on the fiscal position of municipal corporations? Section 5 does not change the doctrine that municipal corporations do not possess inherent powers of taxation. What it does is to confer municipal corporations a general power to levy taxes and otherwise create sources of revenue. They no longer have to wait for a statutory grant of these powers. The power of the legislative authority relative to the fiscal powers of local governments has been reduced to the authority to impose limitations on municipal powers. Moreover, these limitations must be "consistent with the basic policy of local autonomy." The important legal effect of Section 5 is thus to reverse the principle that doubts are resolved against municipal corporations. Henceforth, in interpreting statutory provisions on municipal fiscal powers, doubts will be resolved in favor of municipal corporations. It is understood, however, that taxes imposed by local government must be for a public purpose, uniform within a locality, must not be confiscatory, and must be within the jurisdiction of the local unit to pass." In net effect, the controversy presently before the Court involves, at bottom, a clash between the inherent taxing power of the legislature, which necessarily includes the power to exempt, and the local government's delegated power to tax under the aegis of the 1987 Constitution.

Now to go back to the Quezon City Revenue Code which imposed real estate taxes on all real properties within the city's territory and removed exemptions theretofore "previously granted to, or presently enjoyed by all persons, whether natural or juridical [x x x]" there can really be no dispute that the power of the Quezon City Government to tax is limited by Section 232 of the LGC which expressly provides that "a province or city or municipality within the Metropolitan Manila Area may levy an annual ad valorem tax on real property such as land, building, machinery, and other improvement not hereinafter specifically exempted." Under this law, the Legislature highlighted its power to thereafter exempt certain realties from the taxing power of local government units. An interpretation denying Congress such power to exempt would reduce the phrase "not hereinafter specifically exempted" as a pure jargon, without meaning whatsoever. Needless to state, such absurd situation is unacceptable. For sure, in Philippine Long Distance Telephone Company, Inc. (PLDT) vs. City of Davao, this Court has upheld the power of Congress to grant exemptions over the power of local government units to impose taxes. There, the Court wrote: "Indeed, the grant of taxing powers to local government units under the Constitution and the LGC does not affect the power of Congress to grant exemptions to certain persons, pursuant to a declared national policy. The legal effect of the constitutional grant to local governments simply means that in interpreting statutory provisions on municipal taxing powers, doubts must be resolved in favor of municipal corporations."[23] (Emphasis supplied) In the case under review, the Philippine Congress enacted R.A. No. 7966 on March 30, 1995, subsequent to the effectivity of the LGC on January 1, 1992. Under it, ABS-CBN was granted the franchise to install and operate radio and television broadcasting stations in the Philippines. Likewise, Section 8 imposed on ABSCBN the duty of paying 3% franchise tax. It bears stressing, however, that payment of the percentage franchise tax shall be "in lieu of all taxes" on the said franchise.[24] Congress has the inherent power to tax, which includes the power to grant tax exemptions. On the other hand, the power of Quezon City to tax is prescribed by Section 151 in relation to Section 137 of the LGC which expressly provides that notwithstanding any exemption granted by any law or other special law, the City may impose a franchise tax. It must be noted that Section 137 of the LGC does not prohibit grant of future exemptions. As earlier discussed, this Court in City Government of Quezon City v. Bayan Telecommunications, Inc.[25] sustained the power of Congress to grant tax exemptions over and above the power of the local government's delegated power to tax. B. The more pertinent issue now to consider is whether or not by passing R.A. No. 7966, which contains the "in lieu of all taxes" provision, Congress intended to exempt ABS-CBN from local franchise tax. Petitioners argue that the "in lieu of all taxes" provision in ABS-CBN's franchise does not expressly exempt it from payment of local franchise tax. They contend that a tax exemption cannot be created by mere implication and that one who claims tax exemptions must be able to justify his claim by clearest grant of organic law or statute. Taxes are what civilized people pay for civilized society. They are the lifeblood of the nation. Thus, statutes granting tax exemptions are construed stricissimi juris against the taxpayer and liberally in favor of the taxing authority. A claim of tax exemption must be clearly shown and based on language in law too plain to be mistaken. Otherwise stated, taxation is the rule, exemption is the exception. [26] The burden of proof rests upon the party claiming the exemption to prove that it is in fact covered by the exemption so claimed.[27] The basis for the rule on strict construction to statutory provisions granting tax exemptions or deductions is to minimize differential treatment and foster impartiality, fairness and equality of treatment among taxpayers.[28] He who claims an exemption from his share of common burden must justify his claim that the legislature intended to exempt him by unmistakable terms. For exemptions from taxation are not favored in law, nor are they presumed. They must be expressed in the clearest and most unambiguous language and not left to mere implications. It has been held that "exemptions are never presumed, the burden is on the

claimant to establish clearly his right to exemption and cannot be made out of inference or implications but must be laid beyond reasonable doubt. In other words, since taxation is the rule and exemption the exception, the intention to make an exemption ought to be expressed in clear and unambiguous terms.[29] Section 8 of R.A. No. 7966 imposes on ABS-CBN a franchise tax equivalent to three (3) percent of all gross receipts of the radio/television business transacted under the franchise and the franchise tax shall be "in lieu of all taxes" on the franchise or earnings thereof. The "in lieu of all taxes" provision in the franchise of ABS-CBN does not expressly provide what kind of taxes ABS-CBN is exempted from. It is not clear whether the exemption would include both local, whether municipal, city or provincial, and national tax. What is clear is that ABS-CBN shall be liable to pay three (3) percent franchise tax and income taxes under Title II of the NIRC. But whether the "in lieu of all taxes provision" would include exemption from local tax is not unequivocal. As adverted to earlier, the right to exemption from local franchise tax must be clearly established and cannot be made out of inference or implications but must be laid beyond reasonable doubt. Verily, the uncertainty in the "in lieu of all taxes" provision should be construed against ABS-CBN. ABS-CBN has the burden to prove that it is in fact covered by the exemption so claimed. ABS-CBN miserably failed in this regard. ABS-CBN cites the cases Carcar Electric & Ice Plant v. Collector of Internal Revenue, [30] Manila Railroad v. Rafferty,[31] Philippine Railway Co. v. Collector of Internal Revenue,[32] and Visayan Electric Co. v. David[33] to support its claim that that the "in lieu of all taxes" clause includes exemption from all taxes. However, a review of the foregoing case law reveals that the grantees' respective franchises expressly exempt them from municipal and provincial taxes. Said the Court in Manila Railroad v. Rafferty: [34] On the 7th day of July 1906, by an Act of the Philippine Legislature, a special charter was granted to the Manila Railroad Company. Subsection 12 of Section 1 of said Act (No. 1510) provides that: "In consideration of the premises and of the granting of this concession or franchise, there shall be paid by the grantee to the Philippine Government, annually, for the period of thirty (30) years from the date hereof, an amount equal to one-half (1/2) of one per cent of the gross earnings of the grantee in respect of the lines covered hereby for the preceding year; after said period of thirty (30) years, and for the fifty (50) years thereafter, the amount so to be paid annually shall be an amount equal to one and one-half (1) per cent of such gross earnings for the preceding year; and after such period of eighty (80) years, the percentage and amount so to be paid annually by the grantee shall be fixed by the Philippine Government. Such annual payments, when promptly and fully made by the grantee, shall be in lieu of all taxes of every name and nature - municipal, provincial or central - upon its capital stock, franchises, right of way, earnings, and all other property owned or operated by the grantee under this concession or franchise."[35] (Underscoring supplied) In the case under review, ABS-CBN's franchise did not embody an exemption similar to those in Carcar, Manila Railroad, Philippine Railway, and Visayan Electric. Too, the franchise failed to specify the taxing authority from whose jurisdiction the taxing power is withheld, whether municipal, provincial, or national. In fine, since ABS-CBN failed to justify its claim for exemption from local franchise tax, by a grant expressed in terms "too plain to be mistaken" its claim for exemption for local franchise tax must fail. C. The "in lieu of all taxes" clause in the franchise of ABS-CBN has become functus officio with the abolition of the franchise tax on broadcasting companies with yearly gross receipts exceeding Ten Million Pesos. In its decision dated January 20, 1999, the RTC held that pursuant to the "in lieu of all taxes" provision contained in Section 8 of R.A. No. 7966, ABS-CBN is exempt from the payment of the local franchise tax. The RTC further pronounced that ABS-CBN shall instead be liable to pay a franchise tax of 3% of all gross receipts in lieu of all other taxes.

On this score, the RTC ruling is flawed. In keeping with the laws that have been passed since the grant of ABS-CBN's franchise, the corporation should now be subject to VAT, instead of the 3% franchise tax. At the time of the enactment of its franchise on May 3, 1995, ABS-CBN was subject to 3% franchise tax under Section 117(b) of the 1977 National Internal Revenue Code (NIRC), as amended, viz.: SECTION 117. Tax on franchises. - Any provision of general or special laws to the contrary notwithstanding, there shall be levied, assessed and collected in respect to all franchise, upon the gross receipts from the business covered by the law granting the franchise, a tax in accordance with the schedule prescribed hereunder:
(a) (b) (c) On electric utilities, city gas, and water supplies Two (2%) percent On telephone and/or telegraph systems, radio and/or broadcasting stations Three (3%) percent On other franchises Five (5%) percent. (Emphasis supplied)

On January 1, 1996, R.A. No. 7716, otherwise known as the Expanded Value Added Tax Law,[36] took effect and subjected to VAT those services rendered by radio and/or broadcasting stations. Section 3 of R.A. No. 7716 provides: Section 3. Section 102 of the National Internal Revenue Code, as amended is hereby further amended to read as follows: SEC. 102. Value-added tax on sale of services and use or lease of properties. - (a) Rate and base of tax. There shall be levied, assessed and collected, as value-added tax equivalent to 10% of gross receipts derived from the sale or exchange of services, including the use or lease of properties. The phrase "sale or exchange of services" means the performance of all kinds of services in the Philippines, for others for a fee, remuneration or consideration, including those performed or rendered by construction and service contractors; x x x services of franchise grantees of telephone and telegraph, radio and television broadcasting and all other franchise grantees except those under Section 117 of this Code; x x x (Emphasis supplied) Notably, under the same law, "telephone and/or telegraph systems, broadcasting stations and other franchise grantees" were omitted from the list of entities subject to franchise tax. The impression was that these entities were subject to 10% VAT but not to franchise tax. Only the franchise tax on "electric, gas and water utilities" remained. Section 12 of R.A. No. 7716 provides: Section 12. Section 117 of the National Internal Revenue Code, as amended, is hereby further amended to read as follows: SEC. 117. Tax on Franchises. - Any provision of general or special law to the contrary notwithstanding there shall be levied, assessed and collected in respect to all franchises on electric, gas and water utilities a tax of two percent (2%) on the gross receipts derived from the business covered by the law granting the franchise. (Emphasis added) Subsequently, R.A. No. 8241[37] took effect on January 1, 1997[38] containing more amendments to the NIRC. Radio and/or television companies whose annual gross receipts do not exceed P10,000,000.00 were granted the option to choose between paying 3% national franchise tax or 10% VAT. Section 9 of R.A. No. 8241 provides: SECTION 9. Section 12 of Republic Act No. 7716 is hereby amended to read as follows: "Sec. 12. Section 117 of the National Internal Revenue Code, as amended, is hereby further amended to read as follows: "Sec. 117. Tax on franchise. - Any provision of general or special law to the contrary, notwithstanding, there shall be levied, assessed and collected in respect to all franchises on radio and/or television broadcasting companies whose annual gross receipts of the preceding year does not exceed Ten million pesos (P10,000,000.00), subject to Section 107(d) of this Code, a tax of three percent (3%)and on electric, gas and water utilities, a tax of two percent (2%) on the gross receipts derived from the business covered by the law granting the franchise: Provided, however, That radio and television broadcasting companies referred to in this section, shall have an option to be registered as a value-added tax payer and pay the tax due thereon: Provided, further, That once the option is exercised, it shall not be revoked. (Emphasis supplied)

On the other hand, radio and/or television companies with yearly gross receiptsexceeding P10,000,000.00 were subject to 10% VAT, pursuant to Section 102 of the NIRC. On January 1, 1998, R.A. No. 8424[39] was passed confirming the 10% VAT liability of radio and/or television companies with yearly gross receipts exceeding P10,000,000.00. R.A. No. 9337 was subsequently enacted and became effective on July 1, 2005. The said law further amended the NIRC by increasing the rate of VAT to 12%. The effectivity of the imposition of the 12% VAT was later moved from January 1, 2006 to February 1, 2006. In consonance with the above survey of pertinent laws on the matter, ABS-CBN is subject to the payment of VAT. It does not have the option to choose between the payment of franchise tax or VAT since it is a broadcasting company with yearly gross receipts exceeding Ten Million Pesos (P10,000,000.00). VAT is a percentage tax imposed on any person whether or not a franchise grantee, who in the course of trade or business, sells, barters, exchanges, leases, goods or properties, renders services. It is also levied on every importation of goods whether or not in the course of trade or business. The tax base of the VAT is limited only to the value added to such goods, properties, or services by the seller, transferor or lessor. Further, the VAT is an indirect tax and can be passed on to the buyer. The franchise tax, on the other hand, is a percentage tax imposed only on franchise holders. It is imposed under Section 119 of the Tax Code and is a direct liability of the franchise grantee. The clause "in lieu of all taxes" does not pertain to VAT or any other tax. It cannot apply when what is paid is a tax other than a franchise tax. Since the franchise tax on the broadcasting companies with yearly gross receipts exceeding ten million pesos has been abolished, the "in lieu of all taxes" clause has now become functus officio, rendered inoperative. In sum, ABS-CBN's claims for exemption must fail on twin grounds. First, the "in lieu of all taxes" clause in its franchise failed to specify the taxes the company is sought to be exempted from. Neither did it particularize the jurisdiction from which the taxing power is withheld. Second, the clause has become functus officio because as the law now stands, ABS-CBN is no longer subject to a franchise tax. It is now liable for VAT. WHEREFORE, the petition is GRANTED and the appealed Decision REVERSED ANDSET ASIDE. The petition in the trial court for refund of local franchise tax isDISMISSED. SO ORDERED.

EN BANC

[G.R. Nos. 154796-97. October 23, 2003]

RAYMUNDO A. BAUTISTA @ OCA, petitioner, vs. HONORABLE COMMISSION ON ELECTIONS, JOSEFINA P. JAREO, HON. MAYOR RAYMUND M. APACIBLE, FRANCISCA C. RODRIGUEZ, AGRIPINA B. ANTIG, MARIA G. CANOVAS, and DIVINA ALCOREZA,respondents. DECISION
CARPIO, J.:

The Case This is a petition for certiorari and prohibition with a prayer for the issuance of a temporary restraining order to nullify Resolution Nos. 5404 and 5584 of the Commission on Elections (COMELEC) en banc. Resolution No. 5404 dated 23 July 2002 ordered the deletion of Raymundo A. Bautistas (Bautista) name from the official list of candidates for the position of Punong Barangay of Barangay Lumbangan, Nasugbu, Batangas (Lumbangan) in the 15 July 2002 elections. Resolution No. 5584 dated 10 August 2002 provided for the policy of the COMELEC regarding proclaimed candidates found to be ineligible for not being registered voters in the place where they ran for office.
[1] [2]

The Facts On 10 June 2002, Bautista filed his certificate of candidacy for Punong Barangay in Lumbangan for the 15 July 2002 barangay elections. Election Officer Josefina P. Jareo(Election Officer Jareo) refused to accept Bautistas certificate of candidacy because he was not a registered voter in Lumbangan. On 11 June 2002, Bautista filed an action for mandamus against Election Officer Jareo with the Regional Trial Court of Batangas, Branch 14 (trial court). On 1 July 2002, the trial court ordered Election Officer Jareo to accept Bautistas certificate of candidacy and to include his
[3]

name in the certified list of candidates for Punong Barangay. The trial court ruled that Section 7 (g) of COMELEC Resolution No. 4801 mandates Election Officer Jareo to include the name of Bautista in the certified list of candidates until the COMELEC directs otherwise. In compliance with the trial courts order, Election Officer Jareo included Bautista in the certified list of candidates for Punong Barangay. At the same time, Election Officer Jareo referred the matter of Bautistas inclusion in the certified list of candidates with the COMELEC Law Department on 5 July 2002. On 11 July 2002, the COMELEC Law Department recommended the cancellation of Bautistas certificate of candidacy since he was not registered as a voter in Lumbangan. The COMELEC en banc failed to act on the COMELEC Law Departments recommendation before the barangay elections on 15 July 2002.
[4] [5] [6]

During the 15 July 2002 barangay elections, Bautista and private respondent Divina Alcoreza (Alcoreza) were candidates for the position of Punong Barangay in Lumbangan. Bautista obtained the highest number of votes (719) while Alcoreza came in second with 522 votes, or a margin of 197 votes. Thus, the Lumbangan Board of Canvassers (Board of Canvassers) proclaimed Bautista as the elected Punong Barangay on 15 July 2002. On 8 August 2002, Bautista took his oath of office as Punong Barangay before Congresswoman Eileen Ermita-Buhain of the First District of Batangas. On 16 August 2002, Bautista again took his oath of office during a mass oath-taking ceremony administered by Nasugbu Municipal Mayor Raymund Apacible.
[7] [8]

Meanwhile, COMELEC issued Resolution No. 5404 on 23 July 2002 and Resolution No. 5584 on 10 August 2002 (COMELEC Resolutions). In Resolution No. 5404, the COMELEC en banc resolved to cancel Bautistas certificate of candidacy. The COMELEC en banc directed the Election Officer to delete Bautistas name from the official list of candidates. The dispositive portion of Resolution No. 5404 reads: Considering the foregoing, the Commission, RESOLVED, as it hereby RESOLVES, to ADOPT the recommendation, as follows: 1. A. 1. To DENY due course to/or cancel the certificates of candidacy of the following: For Barangay Officials: CONRADO S. PEDRAZA Navotas 2. PIO B. MALIGAYA Sampaga 3. PATERNO H. MENDOZA Sampaga

all of Balayan, Batangas. B. a. RAY OCA A. BAUTISTA, candidate for Punong Barangay of Brgy. Lumbangan, Nasugbu, Batangas, for not being registered voters of barangays where they are running for an office; 2. To DIRECT the Election Officers of Balayan, Batangas and Nasugbu, Batangas, to delete their names in the official list of candidates in their respective Barangays without prejudice to the filing of complaint against them for misrepresentation under Section 74 of the Omnibus Election Code if the evidence so warrants. Let the Law Department implement this resolution. On the other hand, Resolution No. 5584 expressed COMELECs policy regarding proclaimed candidates found to be ineligible for not being registered voters in the place of their election, thus: ON PROCLAIMED CANDIDATES FOUND TO BE INELIGIBLE FOR BEING NOT REGISTERED VOTERS IN THE PLACE WHERE THEY WERE ELECTED. (a) For a proclaimed candidate whose certificate of candidacy was denied due course to or cancelled by virtue of a Resolution of the Commission En Banc albeit such Resolution did not arrive on time. 1. To DIRECT the Election Officers concerned to implement the resolution of the Commission deleting the name of the candidate whose certificate of candidacy was denied due course; 2. To DIRECT the candidate whose name was ordered deleted to cease and desist from taking his oath of office or from assuming the position to which he was elected, unless a temporary restraining order was issued by the Supreme Court; and 3. To RECONVENE the Board of Canvassers for the purpose of proclaiming the duly-elected candidates and correcting the Certificate of Canvass of Proclamation. (b) For a proclaimed candidate who is subsequently declared disqualified by the Commission in the disqualification case filed against him prior to his proclamation. 1. To DIRECT the proclaimed disqualified candidate to cease and desist from taking his oath of office or from assuming the position to which he

was elected, unless a temporary restraining order was issued by the Supreme Court; and 2. To RECONVENE the Board of Canvassers for the purpose of proclaiming the duly-elected candidates and correcting the Certificate of Canvass of Proclamation. (c) For a proclaimed candidate who is found to be ineligible only after his proclamation (i.e., There is no Resolution denying due course to or canceling his certificate of candidacy and there is no petition for disqualification pending against him before his proclamation.) 1. To DISMISS any and all cases questioning the eligibility of such candidate for LACK OF JURISDICTION, the proper remedy being a quo warranto case before the metropolitan or municipal trial court. In a letter dated 19 August 2002, COMELEC Commissioner Luzviminda Tancangco directed Election Officer Jareo to (1) delete the name of Bautista from the official list of candidates for Punong Barangay of Barangay Lumbangan; (2) order the Board of Canvassers of Lumbangan to reconvene for the purpose of proclaiming the elected Punong Barangay with due notice to all candidates concerned; and (3) direct the proclaimed disqualified candidate Bautista to cease and desist from taking his oath of office or from assuming the position which he won in the elections, citing COMELEC Resolution Nos. 5404 and 5584. Consequently, Election Officer Jareo issued on 20 August 2002 an Order deleting the name of Bautista from the list of candidates for Punong Barangay. The Order also prohibited Bautista from assuming the position and discharging the functions of Punong Barangay of Lumbangan pursuant to the COMELEC Resolutions. The Board of Canvassers reconvened on 23 August 2002 and after making the necessary corrections in the Certificate of Canvass of Votes, proclaimed Alcoreza as the winning Punong Barangay. Alcoreza thus assumed the post of Punong Barangay of Lumbangan.
[9] [10] [11]

On 26 August 2002, Bautista wrote a letter to COMELEC requesting the latter for reconsideration of the COMELEC Resolutions. On 9 September 2002, while his letter for reconsideration was still pending with the COMELEC, Bautista filed this petition for certiorari and prohibition with a prayer for the issuance of a temporary restraining order. The Issues

The issues raised are:

1. Whether the COMELEC en banc committed grave abuse of discretion amounting to excess or lack of jurisdiction when it issued Resolution Nos. 5404 and 5584; 2. Whether the COMELEC deprived Bautista of due process when the COMELEC en banc issued Resolution Nos. 5404 and 5584; and 3. Whether it was proper to proclaim Alcoreza as Punong Barangay in view of the alleged disqualification of the winning candidate Bautista.

The Courts Ruling Before considering the merits of the case, we shall first resolve the procedural questions raised by respondents. Respondents contend that a motion for reconsideration of the assailed COMELEC Resolutions is a prerequisite to the filing of a petition for certiorari and prohibition. Absent any extraordinary circumstances, a party who has filed a motion for reconsideration should wait for the resolution of the motion before filing the petition for certiorari. Respondents allege that the instant petition is premature because Bautista has a pending motion for reconsideration of the COMELEC Resolutions. Respondents claim that Bautista filed the instant petition barely two weeks after filing the motion for reconsideration with the COMELEC en banc without waiting for the resolution of his motion.
[12]

The contention of respondents is wrong. The case cited by respondents refers to a motion for reconsideration pending before the COMELEC en banc seeking the reconsideration of a resolution rendered by a COMELEC division. Rule 19 of the 1993 COMELEC Rules of Procedure allows a motion to reconsider a decision, resolution, order, or ruling of a division. However, Section 1 (d), Rule 13 of the 1993 COMELEC Rules of Procedure prohibits a motion to reconsider a resolution of the COMELEC en banc except in cases involving election offenses. As held in Angelia v. Commission on Elections:
[13] [14]

We hold that petitioner acted correctly in filing the present petition because the resolution of the COMELEC in question is not subject to reconsideration and, therefore, any party who disagreed with it only had one recourse, and that was to file a petition for certiorari under Rule 65 of the Rules of Civil Procedure. Rule 13, 1 of the COMELEC Rules of Procedure provides: What Pleadings are Not Allowed. The following pleadings are not allowed: .. . .

d) motion for reconsideration of an en banc ruling, resolution, order or decision except in election offense cases; ... As the case before the COMELEC did not involve an election offense, reconsideration of the COMELEC resolution was not possible and petitioner had no appeal or any plain, speedy, and adequate remedy in the ordinary course of law. For him to wait until the COMELEC denied his motion would be to allow the reglementary period for filing a petition for certiorari with this Court to run and expire. The instant controversy involves resolutions issued by the COMELEC en banc which do not pertain to election offenses. Hence, a special civil action for certiorari is the proper remedy in accordance with Section 2, Rule 64 of the Rules of Court which provides:
[15]

SEC. 2. Mode of review. A judgment or final order or resolution of the Commission on Elections and the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65 except as hereinafter provided. (Emphasis supplied) Whether the COMELEC en banc committed grave abuse of discretion amounting to excess or lack of jurisdiction in issuing Resolution Nos. 5404 and 5584 Bautista argues that without any disqualification case formally filed against him, the COMELEC has no jurisdiction to take cognizance of his case. The COMELEC cannot motu proprio act on the issue of his alleged lack of qualification. Even assuming that there was a disqualification case filed against him, it is the COMELEC sitting in division which has jurisdiction and not the COMELEC en banc.
[16]

On the other hand, respondents allege that the Constitution vests the COMELEC with the power to enforce and administer all laws and regulations relative to the conduct of elections. The Constitution thus empowers the COMELEC to pass upon the qualification of candidates for elective office. Furthermore, respondents submit that the COMELECs jurisdiction to cancel the certificate of candidacy of disqualified candidates is already settled jurisprudence.
[17]

Respondents cited cases to support their claim that the COMELEC has jurisdiction to cancel the certificates of candidacy of disqualified candidates. However, the COMELEC heard these cases first in division and not en banc in the first instance. In Garvida v. Sales, Jr., the Court held that it is the COMELEC sitting in division and not the COMELEC en banc which has jurisdiction over petitions to cancel a certificate of candidacy. The Court held:
[18]

x x x 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. 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. 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 in 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.

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. (Emphasis supplied) In this case, Election Officer Jareo reported to the COMELEC Law Department Bautistas ineligibility for being a non-registered voter. The COMELEC Law Department recommended to the COMELEC en banc to deny due course or to cancel Bautistas certificate of candidacy. The COMELEC en banc approved the recommendation in Resolution No. 5404 dated 23 July 2002. A division of the COMELEC should have first heard this case. The COMELEC en banc can only act on the case if there is a motion for reconsideration of the decision of the COMELEC division. Hence, the COMELEC en banc acted without jurisdiction when it ordered the cancellation of Bautistas certificate of candidacy without first referring the case to a division for summary hearing. The proceeding on the cancellation of a certificate of candidacy does not merely pertain to the administrative functions of the COMELEC. Cancellation proceedings involve the COMELECs quasi-judicial functions. The Court discussed the difference between administrative and quasi-judicial functions in Villarosa v. Commission on Elections:
[19]

In the concurring opinion of Justice Antonio in University of Nueva Caceres vs. Martinez, 56 SCRA 148, he noted that (t)he term administrative connotes, or pertains, to administration, especially management, as by managing or conducting, directing or superintending, the execution, application, or conduct of persons or things. It does not entail an opportunity to be heard, the production and weighing of evidence, and a decision or resolution thereon. While a quasi-judicial function is A term which applies to the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action and to exercise discretion of a judicial nature. (Emphasis supplied) In the exercise of its adjudicatory or quasi-judicial powers, the Constitution mandates the COMELEC to hear and decide cases first by division and upon

motion for reconsideration, by the COMELEC en banc. In Baytan v. COMELEC, the Court expounded on the administrative and quasi-judicial powers of the COMELEC. The Court explained:
[20] [21]

Under Section 2, Article IX-C of the 1987 Constitution, the COMELEC exercises both administrative and quasi-judicial powers. The COMELECs administrative powers are found in Section 2 (1), (3), (4), (5), (6), (7), (8), and (9) of Article IXC. The 1987 Constitution does not prescribe how the COMELEC should exercise its administrative powers, whether en banc or in division. The Constitution merely vests the COMELECs administrative powers in the Commission on Elections, while providing that the COMELEC may sit en banc or in two divisions. Clearly, the COMELEC en banc can act directly on matters falling within its administrative powers. Indeed, this has been the practice of the COMELEC both under the 1973 and 1987 Constitutions. On the other hand, the COMELECs quasi-judicial powers are found in Section 2 (2) of Article IX-C, to wit: Section 2. The Commission on Elections shall exercise the following powers and functions: xxx (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. The COMELECs exercise of its quasi-judicial powers is subject to Section 3 of Article IX-C which expressly requires that all election cases, including preproclamation controversies, shall be decided by the COMELEC in division, and the motion for reconsideration shall be decided by the COMELEC en banc. It follows, as held by the Court in Canicosa, that the COMELEC is mandated to decide cases first in division, and then upon motion for reconsideration en banc, only when the COMELEC exercises its quasi-judicial powers. (Emphasis supplied)

Under Section 3, Rule 23 of the 1993 COMELEC Rules of Procedure, a petition for the denial or cancellation of a certificate of candidacy must be heard summarily after due notice. It is thus clear that cancellation proceedings involve the exercise of the quasi-judicial functions of the COMELEC which the COMELEC in division should first decide. More so in this case where the cancellation proceedings originated not from a petition but from a report of the election officer regarding the lack of qualification of the candidate in the barangay election. The COMELEC en banc cannot short cut the proceedings by acting on the case without a prior action by a division because it denies due process to the candidate. Whether the COMELEC deprived Bautista of due process when it issued Resolution Nos. 5404 and 5584 Bautista alleges that the COMELEC denied him due process because there was no notice and hearing prior to the issuance of Resolution Nos. 5404 and 5584. He became aware of the issuance of the COMELEC Resolutions only when he received a copy of Election Officer Jareos Order dated 20 August 2002 ordering him to cease and desist from assuming the position of Punong Barangay.
[22]

The Solicitor General submits that the COMELEC did not deprive Bautista of due process. Bautista had the chance to be heard and to present his side when he filed a letter to the COMELEC en banc requesting reconsideration of the Resolutions.
[23]

This Court has explained the nature of due process in Stayfast Philippines Corporation v. NLRC:
[24]

The essence of due process is simply the opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain ones side or an opportunity to seek a reconsideration of the action or ruling complained of. A formal or trial-type hearing is not at all times and in all instances essential. The requirements are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. What is frowned upon is absolute lack of notice and hearing. x x x (Emphasis supplied) The opportunity to be heard does not only refer to the right to present verbal arguments in court during a formal hearing. There is due process when a party is able to present evidence in the form of pleadings. However,
[25] [26]

the COMELEC did not give Bautista such opportunity to explain his side. The COMELEC en banc issued Resolution Nos. 5404 and 5584 without prior notice and hearing. We cannot ignore the importance of prior notice and hearing. Severe consequences attach to the COMELEC Resolutions which not only ordered the cancellation of the certificate of candidacy of Bautista but also the annulment of his proclamation as Punong Barangay. What is involved here is not just the right to be voted for public office but the right to hold public office. As held in Sandoval v. Commission on Elections:
[27]

x x x 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. 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. The facts show that COMELEC set aside the proclamation of petitioner without benefit of prior notice and hearing and it rendered the questioned order based solely on private respondents allegations. We held in Bince, Jr. vs. COMELEC: 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. (Emphasis supplied) The fact that Bautista was able to file a letter with the COMELEC en banc requesting for reconsideration of the Resolutions is beside the point. To reiterate, the 1993 COMELEC Rules of Procedure prohibit a motion for reconsideration of a COMELEC en banc resolution except in cases involving election offenses.

Respondents likewise submit that there was no need for presentation and evaluation of evidence since the issue of whether Bautista was a registered voter is easily resolved by looking at the COMELEC registration records. This reasoning fails to consider the instances where a voter may be excluded through inadvertence or registered with an erroneous or misspelled name. Indeed, if it was just a simple matter of looking at the record of registered voters, then the COMELEC would not have included Section 7 (g) in its Resolution No. 4801. This Section allows candidates who are not registered voters to be included in the certified list of candidates until the COMELEC directs otherwise.
[28] [29] [30]

Rule 23 of the 1993 COMELEC Rules of Procedure provides for the twin requirements of prior notice and hearing, as follows: Rule 23 Petition to Deny Due Course to or Cancel Certificates of Candidacy Section 1. Grounds for Denial of Certificate of Candidacy. A petition to deny due course to or cancel, a certificate of candidacy for any elective office may be filed with the Law Department of the Commission by any citizen of voting age or a duly registered political party, organization, or coalition of political parties on the exclusive ground that any material representation contained therein as required by law is false. Sec. 2. Period to File Petition. The petition must be filed within five (5) days following the last day for the filing of certificates of candidacy. Sec. 3. Summary Proceeding. The petition shall be heard summarily after due notice. Sec. 4. Delegation of Reception of Evidence. The Commission may designate any of its officials who are members of the Philippine Bar to hear the case and receive evidence. (Emphasis supplied) A summary proceeding does not mean that the COMELEC could do away with the requirements of notice and hearing. The COMELEC should have at least given notice to Bautista to give him the chance to adduce evidence to explain his side in the cancellation proceeding. The COMELEC en banc deprived Bautista of procedural due process of law when it approved the report and recommendation of the Law Department without notice and hearing.
[31]

Whether Bautista was a registered voter of Barangay Lumbangan when he filed his certificate of candidacy

The events that transpired after the 15 July 2002 elections necessitate the early resolution of this case. The Court deems it proper not to remand the case to the COMELEC to avoid further delay. The Court will resolve this case based on the pleadings submitted by the parties.
[32]

Under the Revised Administrative Code, one of the qualifications of an elective municipal officer is that he must be a qualified voter in his municipality. Section 2174 of the Revised Administrative Code reads:
[33]

Section 2174. Qualifications of elective municipal officer. An elective municipal officer must, at the time of the election, be a qualified voter in his municipality and must have been resident therein for at least one year, and must not be less than twenty-three years of age. He must also be able to read and write intelligently either English, Spanish, or the local dialect. (Emphasis supplied) On the other hand, under the Republic Act No. 2370, otherwise known as the Barrio Charter, a candidate for the barrio council must be a qualified elector. Section 8 of the Barrio Charter reads:
[34] [35]

Section 8. Qualifications for election to the barrio council. Candidates for election to the barrio council: (a) Must be a qualified elector and must have been a resident of the barrio for at least six months prior to the election; and (b) Must not have been convicted of a crime involving moral turpitude or of a crime which carries a penalty of at least one year imprisonment. (Emphasis supplied) Thus, in the 1958 case of Rocha v. Cordis, the Court held that a candidate for an elective municipal office did not have to be a registered voter in the municipality to qualify to run for an elective municipal office. Citing the earlier case of Yra v. Abao, the Court ruled that the words qualified elector meant a person who had all the qualifications provided by law to be a voter and not a person registered in the electoral list. In the same vein, the term qualified when applied to a voter does not necessarily mean that a person must be a registered voter.
[36] [37]

However, under the Local Government Code of 1991, which took effect on 1 January 1992, an elective local official, including a Punong Barangay, must not only be a qualified elector or a qualified voter, he must also be a registered voter. Section 39 of the Local Government Code provides:
[38] [39]

SEC. 39. Qualifications. (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filpino or any other local language or dialect. xxx (e) Candidates for the position of punong barangay or member of the sangguniang barangay must be at least eighteen (18) years of age on election day. xxx These qualifications were reiterated in Section 2 of COMELEC Resolution No. 4801 dated 23 May 2002 which prescribed the guidelines on the filing of certificates of candidacy in connection with the 15 July 2002 elections. Section 2 reads: Sec. 2. Qualifications. (a) Candidates for Punong Barangay and Sangguniang Barangay Kagawad must be: (1) (2) Filipino citizens; At least 18 years old on election day; (3) (4) Able to read and write Pilipino or any local language or dialect; and Registered voters of the barangay where they intend to run for office and residents thereof for at least one (1) year immediately preceding the day of the election. (Emphasis supplied)

Section 7 of COMELEC Resolution No. 4801 likewise requires the Election Officer to verify whether the candidates are registered voters and possess all the qualifications of a candidate. Thus, Section 7 (f) and (g) read: (f) Before the preparation of the certified lists of candidates it shall be the duty of the Election Officer to: (1) verify whether all candidates for barangay and sangguniang kabataan positions are registered voters of the barangay where they file their certificates of candidacy; and (2) examine the entries of the certificates of candidacy and determine on the basis of said entries whether the candidate concerned possesses all the qualifications of a candidate.

(g) If there are candidates who are not registered voters in the barangay where they run for barangay or sangguniang kabataan positions or do not possess all the other qualifications of a candidate, he shall make the corresponding report by REGISTERED MAIL and by RUSH TELEGRAM to the Law Department of the Commission within three (3) days from the last day for filing the certificates of candidacy, copy furnished the Provincial Election Supervisor and the Regional Election Director. The names of said candidates, however, shall still be included in the certified lists of candidates until the Commission directs otherwise. (Emphasis supplied) It is thus clear that the law as it now stands requires a candidate for Punong Barangay to be a registered voter of the barangay where he intends to run for office. Bautista admitted in his affidavit dated 24 August 2002 that he was not a registered voter of Barangay Lumbangan, thus:
[40]

AFFIDAVIT That I, RAYMUNDO A. @ OCA BAUTISTA, of legal age, married, Mechanical Engineer by profession, Filipino citizen and have been residing at Sitio Calamundingan, Barangay Lumbangan, Nasugbu, Batangas, after being duly sworn according to law depose and say: 1. That I was born at Barangay Tumalim, Nasugbu, Batangas, on March 15, 1954 and upon reaching the age of four (4) our family transferred to Sitio Calamundingan, Barangay Lumbangan, Nasugbu, Batangas and I have been permanently residing thereat since that time up to the present, and this fact can be attested to by our immediate neighbors. 2. That since the time I reached the age of majority, I have participated both in the National and Local Elections up to the year 1995 and as matter of fact I ran for the Office of member of the Municipal Council in the year 1992 Elections. 3. Sometime during the late part of the year 1995, I went to the United States of America scounting (sic) for a good job but I was not able to find one so I went home in the year 2000 but again believing that I could land a job in the United States, I again went there but I was not able to get a job therein and so I went back to the Philippines in the year 2001 but I found out that my name was no longer included in the list of registered voters at Barangay Lumbangan, Nasugbu, Batangas.

4. Sometime in the year 2002, I personally went to the Office of the Local Election Registrar particularly talking to Miss Josefina P. Jareo in order to register because as I know, to run for the Office of Barangay Chairman, I have to be a registered voter in our Barangay. 5. However, I was denied registration because according to her, her Office is not open for registration at any time and I should wait for the General Registration and for that reason I was not able to register. xxx 11. That had I known that there is a provision in Section 52, under paragraph (k) A, when Miss Josefina P. Jareo denied my request for registration as a voter, I would have filed a Petition for Mandamus with the proper Court so that she can be ordered to register me as a voter in Barangay Lumbangan, Nasugbu, Batangas so that any and all technicality may be avoided.(Emphasis supplied) According to Bautistas affidavit, he was practically out of the country from 1995 until 2001. When the certified list of voters ceased to be effective and operative after the barangay elections in 1997, qualified voters had to register again to vote in any election. Apparently, Bautista failed to register during the general registration of voters conducted by the COMELEC in 1997 since he was still out of the country during that time. Republic Act No. 8189 (The Voters Registration Act of 1996) provides for a system of continuing registration of voters. Thus, Bautista should have registered anew in the office of the Election Officer when he came back to the Philippines in 2001 and learned that his name was no longer included in the roster of registered voters. The pertinent provisions of RA No. 8189 read: SEC. 7. General Registration of Voters. Immediately after the barangay elections in 1997, the existing certified list of voters shall cease to be effective and operative. For purposes of the May 1998 elections and all elections, plebiscites, referenda, initiatives, and recall subsequent thereto, the Commission shall undertake a general registration of voters before the Board of Election Inspectors on June 14, 15, 21 and 22 and, subject to the discretion of the Commission, on June 28 and 29, 1997 in accordance with this Act. SEC. 8. System of Continuing Registration of Voters. The personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. No registration shall, however be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election.

xxx SEC. 10. Registration of Voters. A qualified voter shall be registered in the permanent list of voters in a precinct of the city or municipality where he resides to be able to vote in any election. To register as a voter, he shall personally accomplish an application form for registration as prescribed by the Commission in three (3) copies before the Election Officer on any date during office hours after having acquired the qualifications of a voter. (Emphasis supplied) xxx It is thus clear that Bautista was remiss in his duty to ensure his right to vote and to be voted for public office. As early as 2001, he was already aware that his name was no longer included in the roster of registered voters. Yet, Bautista chose not to register anew that year despite his knowledge that he needed to register as a voter in the barangay to run for the office of Punong Barangay. Bautista alleges that his non-registration as a voter of Barangay Lumbangan was due to the refusal of Election Officer Jareo to register him sometime in January 2002. Aside from his bare allegation that he tried to register in January 2002, Bautista did not proffer any other proof like a duly accomplished application form for registration to substantiate his claim that he indeed attempted to register anew. On the other hand, Election Officer Jareo denies Bautistas allegations in her comment filed on 10 October 2002, thus:
[41]

COMMENT COMES NOW Respondent JOSEPINA P. JAREO (sic) and to this Honorable Supreme Court by way of comment to the Petition for Certiorari and Prohibition with Prayer for the Issuance of Temporary Restraining Order, filed by herein Petitioner, most respectfully states that:
1. Respondent JOSEPINA P. JAREO (sic) is the Election Officer of Nasugbu, Batangas, while petitioner, RAYMUNDO A. BAUTISTA was one of the candidates for the Barangay Chairman of Barangay Lumbangan, Nasugbu, Batangas, in the recently concluded barangay elections; Based on the records in our files, petitioner was not and is not a registered voter of Barangay Lumbangan or any other barangays in Nasugbu, Batangas; There was never an instance during the period starting June 1997 up to December 26, 2001 when registration of voters for the updating of the Voters Registration Record had been undertaken by the Commission on

2. 3.

Elections on an on again/off again system, did petitioner RAYMUNDO BAUTISTA come to our office to check or ensure that he is still in the active list of voters of Barangay Lumbangan, i.e., assuming that he was registered as a voter thereof, in the first place; 4. The last day of registration of voters (new or transferee) had been last December 26, 2001 and registration shall resume again, this coming September 16, 2002. In the meantime, no general registration nor special registration had been mandated by the Commission on Election (COMELEC, for brevity) between the period December 27, 2001 untilSeptember 15, 2002; I only met petitioner RAYMUNDO BAUTISTA for the first time when he came to our office to file his Certificate of Candidacy last June 10, 2002, which was the last day set by the COMELEC for the filing of Certificates of Candidacy;

5.

xxx Bautista was aware when he filed his certificate of candidacy for the office of Punong Barangay that he lacked one of the qualifications that of being a registered voter in the barangay where he ran for office. He therefore made a misrepresentation of a material fact when he made a false statement in his certificate of candidacy that he was a registered voter in Barangay Lumbangan. An elective office is a public trust. He who aspires for elective office should not make a mockery of the electoral process by falsely representing himself. The importance of a valid certificate of candidacy rests at the very core of the electoral process. Under Section 78 of the Omnibus Election Code, false representation of a material fact in the certificate of candidacy is a ground for the denial or cancellation of the certificate of candidacy. The material misrepresentation contemplated by Section 78 refers to qualifications for elective office. A candidate guilty of misrepresentation may be (1) prevented from running, or (2) if elected, from serving, or (3) prosecuted for violation of the election laws.
[42] [43] [44]

Invoking salus populi est suprema lex, Bautista argues that the peoples choice expressed in the local elections deserves respect. Bautistas invocation of the liberal interpretation of election laws is unavailing. As held in Aquino v. Commission on Elections:
[45]

In fine, we are left with no choice but to affirm the COMELECs conclusion declaring herein petitioner ineligible for the elective position as Representative of Makati Citys Second District on the basis of respondent commissions finding that petitioner lacks the one year residence in the district mandated by the 1987 Constitution. A democratic government is necessarily a government of laws. In a republican government those laws are themselves ordained by the people. Through their

representatives, they dictate the qualifications necessary for service in government positions. And as petitioner clearly lacks one of the essential qualifications for running for membership in the House of Representatives, not even the will of a majority or plurality of the voters of the Second District of Makati City would substitute for a requirement mandated by the fundamental law itself. Indeed, the electorate cannot amend or waive the qualifications prescribed by law for elective office. The will of the people as expressed through the ballot cannot cure the vice of ineligibility. The fact that Bautista, a nonregistered voter, was elected to the office of Punong Barangay does not erase the fact that he lacks one of the qualifications for PunongBarangay.
[46]

Whether it was proper to proclaim Alcoreza as Punong Barangay in view of ineligibility of the winning candidate Bautista subscribes to the view of the Solicitor General that under the law and jurisprudence, the COMELEC cannot proclaim as winner the second placer in case of ineligibility of the winning candidate. The Solicitor General submits that the disqualification of the winning candidate Bautista does not result in the proclamation of Alcoreza who obtained the second highest number of votes because Alcoreza was obviously not the choice of the electorate. The Solicitor General emphasized that the COMELEC declared Bautista ineligible for the post of Punong Barangay only after his election and proclamation as the winning candidate. Respondent Alcoreza, however, alleges that her proclamation as the elected Punong Barangay was legal and valid. Alcoreza claims her case falls under the exception to the rule that the disqualification of the winning candidate does not entitle the candidate with the next higher number of votes to be proclaimed winner. Alcoreza cites Grego v. COMELEC which held that the exception is predicated on the concurrence of two assumptions, namely: (1) the one who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of a candidates disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate.
[47]

This Court agrees with the view of the Solicitor General. It is now settled doctrine that the COMELEC cannot proclaim as winner the candidate who obtains the second highest number of votes in case the winning candidate is ineligible or disqualified. The exception to this well-settled rule was mentioned in Labo, Jr. v. Commission on Elections andreiterated
[48] [49]

in Grego v. COMELEC. However, the facts warranting the exception to the rule do not obtain in the present case.
[50]

Although the COMELEC Law Department recommended to deny due course or to cancel the certificate of candidacy of Bautista on 11 July 2002, the COMELEC en banc failed to act on it before the 15 July 2002 barangay elections. It was only on 23 July 2002 that the COMELEC en banc issued Resolution No. 5404, adopting the recommendation of the COMELEC Law Department and directing the Election Officer to delete Bautistas name from the official list of candidates. Thus, when the electorate voted for Bautista as Punong Barangay on 15 July 2002, it was under the belief that he was qualified. There is no presumption that the electorate agreed to the invalidation of their votes as stray votes in case of Bautistas disqualification. The Court cannot adhere to the theory of respondent Alcoreza that the votes cast in favor of Bautista are stray votes. A subsequent finding by the COMELEC en banc that Bautista is ineligible cannot retroact to the date of elections so as to invalidate the votes cast for him. As held in Domino v. COMELEC:
[51] [52] [53] [54]

Contrary to the claim of INTERVENOR, petitioner was not notoriously known by the public as an ineligible candidate. Although the resolution declaring him ineligible as candidate was rendered before the election, however, the same is not yet final and executory. In fact, it was no less than the COMELEC in its Supplemental Omnibus Resolution No. 3046 that allowed DOMINO to be voted for the office and ordered that the votes cast for him be counted as the Resolution declaring him ineligible has not yet attained finality. Thus the votes cast for DOMINO are presumed to have been cast in the sincere belief that he was a qualified candidate, without any intention to misapply their franchise. Thus, said votes can not be treated as stray, void, or meaningless. The Local Government Code provides for the rule regarding permanent vacancy in the Office of the Punong Barangay, thus: SEC. 44. Permanent vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice-Mayor. 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 the case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vicegovernor, 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. (b) If a permanent vacancy occurs in the office of the punong barangay member, the highest ranking sangguniang barangay member, or in the case of his permanent disability, the second highest ranking sanggunian member, shall become the punong barangay. (c) A tie between or among the highest ranking sanggunian members shall be resolved by the drawing of lots. (d) The successors as defined herein shall serve only the unexpired terms of their predecessors. 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. (Emphasis supplied) Since Bautista failed to qualify for the position of Punong Barangay, the highest ranking sangguniang barangay member, or in the case of his permanent disability, the second highest ranking sangguniang member, shall become the Punong Barangay.
[55]

WHEREFORE, we DISMISS the petition. Petitioner Raymundo A. Bautista is ineligible for the position of Punong Barangay of Barangay Lumbangan for not being a registered voter of Barangay Lumbangan. The proclamation of the second placer Divina Alcoreza as winner in lieu of Bautista is void. Instead, the highest ranking sangguniang barangay member of Barangay Lumbangan shall assume the office of Punong Barangay of Lumbangan for the unexpired portion of the term. SO ORDERED.

[G.R. No. 153945. February 4, 2003]

REYNATO BAYTAN, REYNALDO BAYTAN and ADRIAN BAYTAN, petitioners, vs. THE COMMISSION ON ELECTIONS, respondent. DECISION
CARPIO, J.:

The Case Challenged in this petition for certiorari with prayer for temporary restraining order and preliminary injunction is the Resolution dated June 3, 2002 of the Commission on Elections (COMELEC for brevity) en banc in E.O. Case No. 97-503. In its assailed Resolution, the COMELEC en banc denied the motion to reconsider Minute Resolution No. 00-2281 dated November 9, 2000 ordering the Law Department to file criminal cases for double registration against petitioners Reynato Baytan, Reynaldo Baytan and Adrian Baytan (petitioners for brevity).
[1] [2] [3]

The Antecedents On June 15, 1997, petitioners were on their way to register for the May 1998 elections when they met the newly elected Barangay Captain, Roberto Ignacio (Ignacio for brevity), in Barangay 18, Zone II of Cavite City. Ignacio led petitioners to register in Precinct No. 83-A of Barangay 18. Petitioners registered in this precinct as evidenced by Voters Registration Records Nos. 41762473, 41762472 and 41762470. When petitioners returned home, they wondered why the registrants in this precinct looked unfamiliar to them. This prompted petitioners to return to the registration center to study the precinct map of Barangay 18. They then realized that their residence is situated within the jurisdiction of Barangay 28. Thus, petitioners proceeded to Precinct 129-A of Barangay 28 and registered anew on June 22, 1997 as evidenced by Voters Registration Records Nos. 42662969, 42662968 and 42662917.

Subsequently, petitioners sent a letter dated August 21, 1997 to former COMELEC Assistant Executive Director Jose Pio O. Joson and furnished a copy thereof to COMELEC Registrar Francisco Trias. In this letter, petitioners requested for advice on how to cancel their previous registration. They also explained the reason and circumstances of their second registration and expressed their intention to redress the error. On September 16, 1997, the Election Officer of Cavite City forwarded copies of petitioners Voters Registration Records to the Provincial Election Supervisor, Atty. Juanito V. Ravanzo (Ravanzo for brevity), for evaluation. Ravanzo endorsed the matter to the Regional Director for prosecution. Eventually, the Law Department endorsed the case to Ravanzo for resolution. On January 10, 1998, Ravanzo recommended filing an information for double registration against petitioners. In an en banc meeting held on November 09, 2000, the COMELEC in its Minute Resolution No. 00-2281 affirmed the recommendation of Ravanzo. Petitioners moved for reconsideration. The COMELEC en banc denied the motion and disposed as follows: WHEREFORE, premises considered, the En Banc resolution dated November 9, 2000 is hereby AFFIRMED. The Law Department is hereby directed to file the proper information against respondents for violation of Art. XXII, Sec. 261, par. (y) sub-par. (5) of the Omnibus Election Code. Hence, the instant petition. The Issues Petitioners contend that the COMELEC en banc committed grave abuse of discretion amounting to lack or excess of jurisdiction in
1. Recommending the prosecution of petitioners for double registration despite clear and convincing evidence on record that they had no intention of committing said election offense; 2. Not considering the letter dated August 21, 1997 addressed to the COMELEC Assistant Director of Cavite City as substantial compliance with the requirement of the law for cancellation of previous registration; and 3. Taking cognizance of the case in the first instance in violation of Section 3, Article IX-C of the Constitution.

In sum, petitioners insist they are innocent of any wrongdoing in their act of registering twice on different days in two different precincts. Petitioners argue that they did not intend to perpetrate the act prohibited, and therefore they should be exculpated. They claim honest mistake and good faith in registering twice. Petitioners claim they made the first registration because of the intervention and instigation of Ignacio. Petitioners theorize that their August 21, 1997 letter to the election registrar of Cavite City informing him of the lapse and asking how to rectify the same constitutes substantial compliance with the Omnibus Election Codes requirement of cancellation of prior registration. They further implore a liberal construction of the laws on election offenses since almost five years had lapsed from the date of the commission of the offense on June 15, 1997. They claim the case is about to prescribe under the Election Code. Lastly, petitioners fault the COMELEC en banc for assuming original jurisdiction over the case in contravention of Section 3, Article IX-C of the Constitution. Petitioners argue that this constitutional provision requires that election cases must first be heard and decided by a Division before assumption of jurisdiction by the COMELEC en banc. The Courts Ruling The petition is bereft of merit. First and Second Issues: Whether the criminal cases should be dismissed on the ground of lack of intent and substantial compliance with the requirement of cancellation of previous registration. In Minute Resolution No. 00-2281 dated November 9, 2000, the COMELEC en banc affirmed the recommendation of the investigating officer. The COMELEC thus directed its Law Department to file the necessary information against petitioners for violation of Article XXII, SEC. 261 (y) (5) of the Election Code which reads: SEC. 261. Prohibited Acts. The following shall be guilty of an election offense: (y) On Registration of Voters: (5) Any person who, being a registered voter, registers anew without filing an application for cancellation of his previous registration.

Petitioners filed a motion for reconsideration to which the COMELEC en banc issued the assailed Resolution dated June 3, 2002 affirming the Minute Resolution. The grant by the Constitution to the COMELEC of the power to investigate and prosecute election offenses is intended to enable the COMELEC to assure the people of free, orderly, honest, peaceful and credible elections. This grant is an adjunct to the COMELECs constitutional duty to enforce and administer all election laws. Failure by the COMELEC to exercise this power could result in the frustration of the true will of the people and make an idle ceremony of the sacred right and duty of every qualified citizen to vote.
[4]

Petitioners lose sight of the fact that the assailed resolutions were issued in the preliminary investigation stage. A preliminary investigation is essentially inquisitorial and is only the means to discover who may be charged with a crime, its function being merely to determine probable cause. All that is required in the preliminary investigation is the determination of probable cause to justify the holding of petitioners for trial. By definition, probable cause is
[5]

x x x a reasonable ground of presumption that a matter is, or may be, well founded x x x such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe or entertain an honest or strong suspicion that a thing is so. The term does not mean `actual or positive cause nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge.
[6]

There is no question that petitioners registered twice on different days and in different precincts without canceling their previous registration. Aside from this, the COMELEC found certain circumstances prevailing in the case sufficient to warrant the finding of probable cause. The COMELEC noted that petitioners wrote down their address in Precinct No. 83-A of Barangay 18 as No. 709 T. Gomez Extension St., Barangay 18-Maya, Cavite City. However, in Precinct No. 129-A of Barangay 28, petitioners registered as residents of No. 709 Magcawas St., Barangay 28-Taurus, Caridad, Cavite City. The COMELEC noted further that the affidavits submitted by petitioners contained glaring inconsistencies. Petitioners claimed that Ignacio led them to the wrong precinct to register. However, Ignacios affidavit stated that while he led them to the voting precinct of Barangay 18, he immediately left the area not knowing that petitioners registered in the wrong barangay. Contrary to

petitioners sworn statements, Aurora Baytan, mother of petitioners, had another version. She claimed in her affidavit that on June 15, 1997, Ignacio went to their house to inform them about the redefinition of their barangays territorial jurisdiction. Right then and there, Ignacio brought her sons to Barangay 18 to register. The COMELEC also pointed out that since double registration is malum prohibitum, petitioners claim of lack of intent to violate the law is inconsequential. Neither did the COMELEC consider petitioners letter dated August 22, 1997 as an application to cancel their previous registration. The COMELEC explained that this letter was sent after their second registration was accomplished and after the election officer of Cavite City had already reported their act of double registration to a higher official. All told, a reasonably prudent man would readily conclude that there exists probable cause to hold petitioners for trial for the offense of double registration. Moreover, petitioners claims of honest mistake, good faith and substantial compliance with the Election Codes requirement of cancellation of previous registration are matters of defense best ventilated in the trial proper rather than at the preliminary investigation. The established rule is that a preliminary investigation is not the occasion for the full and exhaustive display of the parties evidence. It is for the presentation of such evidence only as may engender a well-grounded belief that an offense has been committed and the accused is probably guilty thereof.
[7] [8]

It is also well-settled that the finding of probable cause in the prosecution of election offenses rests in the COMELECs sound discretion. The COMELEC exercises the constitutional authority to investigate and, where appropriate, prosecute cases for violation of election laws, including acts or omissions constituting election frauds, offenses and malpractices. Generally, the Court will not interfere with such finding of the COMELEC absent a clear showing of grave abuse of discretion. This principle emanates from the COMELECs exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law.
[9] [10]

We also cannot accept petitioners plea for a liberal construction of the laws on the ground of prescription. Prescription of the crime or offense is the forfeiture or loss of the right of the State to prosecute the offender after the lapse of a certain time.
[11]

Section 267 of the Election Code provides that election offenses shall prescribe after five years from the date of their commission. In this case, the offense of double registration allegedly occurred on June 22, 1997 when petitioners registered for a second time in a different precinct without canceling their previous registration. At this point, the period of prescription for the alleged offense started to run. However, prescription is interrupted when proceedings are instituted against the offender. Specifically, the period of prescription is interrupted by the filing of the complaint even if it be merely for purposes of preliminary examination or investigation.
[12]

The COMELEC initiated the complaint for double registration against petitioners motu proprio under Sections 3, 4 and 5, Rule 34 of the 1993 COMELEC Rules of Procedure. On September 16, 1997, the Election Officer of Cavite City forwarded copies of petitioners Voters Registration Records for evaluation to Atty. Juanito V. Ravanzo, Provincial Election Supervisor of Cavite City, who was also tasked to investigate the case. Ravanzo endorsed the matter to the Regional Director for prosecution. The Regional Director forwarded the case to the Law Department and the latter re-endorsed the same to the office of Ravanzo for resolution. A preliminary investigation hearing was conducted on January 19, 1998 where petitioners were instructed to submit their counter-affidavits. After the preliminary investigation and based on the affidavits and other evidence submitted in the case, Ravanzo recommended the prosecution of petitioners for the offense of double registration. Ineluctably, the prescriptive period of the offense was interrupted upon the COMELECs initiation of proceedings against petitioners and remains tolled pending the termination of the case.
[13] [14] [15]

The liberal construction of punitive laws in relation to the prescription of offenses cannot be invoked to prejudice the interest of the State to prosecute election offenses, especially those which the COMELEC described as ruffling the electoral system.
[16]

Third Issue: Whether the COMELEC en bancs assumption of original jurisdiction over the case violated the Constitution. Petitioners rely on Section 3, Article IX-C of the 1987 Constitution which states: 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. Petitioners assert that this constitutional provision serves as basis to nullify the proceedings conducted and orders issued by the COMELEC en banc in E.O. Case No. 97-503. Petitioners cite Sarmiento v. Comelec and Zarate v. Comelec to support their stand that the COMELEC en banc acted without jurisdiction or with grave abuse of discretion when it assumed original jurisdiction over the case without first referring the same to any of its divisions. In Sarmiento and Zarate, the Court similarly held that election cases must first be heard and decided by a Division of the Commission, and that the Commission, sitting en banc, does not have the authority to hear and decide the same at the first instance.
[17] [18]

In its Comment for the COMELEC, the Solicitor General points out that the rulings in Sarmiento and Zarate were clarified in Canicosa v. COMELEC to mean that
[19]

[I]t 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. The Solicitor General contends that the conduct of a preliminary investigation before the filing of an information in court does not in any way adjudicate with finality the rights and liabilities of the parties investigated. A preliminary investigation does not make any pronouncement as to the guilt or innocence of the party involved. Hence, a preliminary investigation cannot be considered a judicial or quasi-judicial proceeding required to be heard by the Division in the first instance. On the other hand, petitioners countered that in Cruz v. People, the Court held that the conduct of a preliminary investigation is a judicial or quasijudicial proceeding since there is opportunity to be heard and for the production and weighing of evidence and a decision is rendered thereon.
[20]

Under Section 2, Article IX-C of the 1987 Constitution, the COMELEC exercises both administrative and quasi-judicial powers. The COMELECs administrative powers are found in Section 2 (1), (3), (4), (5), (6), (7), (8), and (9) of Article IX-C. The 1987 Constitution does not prescribe how the COMELEC should exercise its administrative powers, whether en banc or in division. The Constitution merely vests the COMELECs administrative powers in the Commission on Elections, while providing that the COMELEC
[21]

may siten banc or in two divisions. Clearly, the COMELEC en banc can act directly on matters falling within its administrative powers. Indeed, this has been the practice of the COMELEC both under the 1973 and 1987 Constitutions.
[22]

On the other hand, the COMELECs quasi-judicial powers are found in Section 2 (2) of Article IX-C, to wit: Section 2. The Commission on Elections shall exercise the following powers and functions: xxx (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. The COMELECs exercise of its quasi-judicial powers is subject to Section 3 of Article IX-C which expressly requires that all election cases, including preproclamation controversies, shall be decided by the COMELEC in division, and the motion for reconsideration shall be decided by the COMELEC en banc. It follows, as held by the Court inCanicosa, that the COMELEC is mandated to decide cases first in division, and then upon motion for reconsideration en banc, only when the COMELEC exercises its quasijudicial powers.
[23]

The COMELEC is empowered in Section 2(6), Article IX-C of the 1987 Constitution to prosecute cases of violations of election laws. The prosecution of election law violators involves the exercise of the COMELECs administrative powers. Thus, the COMELEC en banc can directly approve the recommendation of its Law Department to file the criminal information for double registration against petitioners in the instant case. There is no constitutional requirement that the filing of the criminal information be first decided by any of the divisions of the COMELEC. In sum, the second sentence of Section 3, Article IX-C of the 1987 Constitution is not applicable in administrative cases, like the instant case where the COMELEC is determining whether probable cause exists to charge

petitioners for violation of the provision of the Election Code prohibiting double registration. Indeed, the COMELEC acted in accordance with Section 9(b), Rule 34 of the 1993 COMELEC Rules of Procedure governing the prosecution of election offenses in meeting en banc in the first instance and acting on the recommendation of Investigating Officer Ravanzo to file charges against petitioners. The rule reads: SEC. 9. Duty of the Law Department, State Prosecutor, Provincial or City Fiscal Upon Receipt of Records. x x x (b). In cases investigated by the lawyers or the field personnel of the Commission, the Director of the Law Department shall review and evaluate the recommendation of said legal officer, prepare a report and make a recommendation to the Commission affirming, modifying or reversing the same which shall be included in the agenda of the succeeding meeting en banc of the Commission. If the Commission approves the filing of an information against the respondent/s, the Director of the Law Department shall prepare and sign the information for immediate filing with the appropriate court. (Emphasis supplied) Minute Resolution No. 00-2281 was issued during the en banc meeting held on November 9, 2000 to resolve the recommendation of Ravanzo in the case. WHEREFORE, the petition is DISMISSED for lack of merit. SO ORDERED.

[G.R. No. 120318. December 5, 1997]

RICARDO "BOY" CANICOSA, petitioner, vs. COMMISSION ELECTIONS, MUNICIPAL BOARD OF CANVASSERS CALAMBA LAGUNA and SEVERINO LAJARA, respondents. DECISION
BELLOSILLO, J.:

ON OF

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 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.
[1]

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 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:
[3]

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, 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.
[4] [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 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.
[6] [7]

Canicosa finally insists that it was error on the part of COMELEC sitting en banc to rule on his petition. He maintains that his petition should have first been heard by a division of COMELEC and later by the

COMELEC en banc upon motion for reconsideration, pursuant to Sec. 3, Art. IX-C, of the Constitution.
[8]

But this provision applies only when the COMELEC acts in the exercise of its adjudicatory or quasi-judicial functions and not when it merely exercises purely administrative functions. To reiterate, the grounds cited by Canicosa in his petition are that: (a) the names of the registered voters did not appear in the list of voters in their respective precincts; (b) more than one-half of the legitimate registered voters were not able to vote with strangers voting in their stead; (c) he was credited with less votes than he actually received; (d) the control data of the election returns was not filled up in some precincts; (e) ballot boxes brought to the Office of the Municipal Treasurer were unsecured, i. e., without padlocks nor self-locking metal seals; and, (f) there was delay in the delivery of election returns. Clearly, all these matters require the exercise by the COMELEC of its administrative functions. Section 2, Art. IX-C, of the 1987 Constitution grants extensive administrative powers to the COMELEC with regard to the enforcement and administration of all laws and regulations relative to the conduct of elections. Likewise, Sec. 52 of BP Blg. 881, otherwise known as the Omnibus Election Code, states: Sec. 52. Powers and functions of the Commission on Elections. - In addition to the powers and functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections x x xx 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. It exercises immediate supervision and control over the members of the boards of election inspectors and canvassers. Its statutory power of
[9]

supervision and control includes the power to revise, reverse or set aside the action of the boards, as well as to do what the boards should have done, even if questions relative thereto have not been elevated to it by an aggrieved party, for such power includes the authority to initiate motu proprio or by itself such steps or actions as may be required pursuant to law.
[10]

Specifically, Canicosa alleged that he was credited with less votes than 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 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.
[11]

Moreover, it is expressly provided in Rule 27, Sec. 7, of the Comelec Rules of Procedure that any party dissatisfied with the ruling of the board of canvassers shall have a right to appeal to the COMELEC en banc: Sec. 7. Correction of Errors in Tabulation or Tallying of Results by the Board of Canvassers. - (a) Where it is clearly shown before proclamation that manifest errors were committed in the tabulation or tallying or election returns, or certificates of canvass, during the canvassing as where (1) a copy of the election returns of one precinct or two or more copies of a certificate of canvass were tabulated more than once, (2) two copies of the election returns or certificate of canvass were tabulated separately, (3) there was a mistake in the adding or copying of the figures into the certificate of canvass or into the statement of votes by precinct, or (4) so-called election returns from non-existent precincts were included in the canvass, the board may motu proprio, or upon verified petition by any candidate, political party, organization or coalition of political parties, after due notice and hearing, correct the errors committed x x x x (h) The appeal shall be heard and decided by the Commission en banc.

In Tatlonghari v. Commission on Elections 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 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 theadministrative jurisdiction of COMELEC, hence, may be acted upon directly by the COMELEC en banc without having to pass through any of its divisions.
[12] [13] [14]

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

[G.R. No. 158830. August 10, 2004]

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

May the Commission on Elections (COMELEC), on its own, in the exercise of its power to enforce and administer election laws, look into the qualifications of a candidate and cancel his certificate of candidacy on the ground that he lacks the qualifications prescribed by law? This is the issue that needs to be resolved in this petition for certiorari filed by Ellan Marie P. Cipriano, the duly elected SK Chairman of Barangay 38, Pasay City, whose certificate of candidacy was cancelled by the COMELEC motu proprio on the ground that she was not a registered voter in the barangay where she intended to run. On June 7, 2002, petitioner filed with the COMELEC her certificate of candidacy as Chairman of the Sangguniang Kabataan (SK) for the SK elections held on July 15, 2002.
[1]

On the date of the elections, July 15, 2002, the COMELEC issued Resolution No. 5363 adopting the recommendation of the Commissions Law Department to deny due course to or cancel the certificates of candidacy of several candidates for the SK elections, including petitioners. The ruling was based on the findings of the Law Department that petitioner and all the other

candidates affected by said resolution were not registered voters in the barangay where they intended to run.
[2]

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

On August 19, 2002, petitioner, after learning of Resolution No. 5363, filed with the COMELEC a motion for reconsideration of said resolution. She argued that a certificate of candidacy may only be denied due course or cancelled via an appropriate petition filed by any registered candidate for the same position under Section 78 of the Omnibus Election Code in relation to Sections 5 and 7 of Republic Act (R.A.) No. 6646. According to petitioner, the report of the Election Officer of Pasay City cannot be considered a petition under Section 78 of the Omnibus Election Code, and the COMELEC cannot, by itself, deny due course to or cancel ones certificate of candidacy. Petitioner also claimed that she was denied due process when her certificate of candidacy was cancelled by the Commission without notice and hearing. Petitioner further argued that the COMELEC en banc did not have jurisdiction to act on the cancellation of her certificate of candidacy on the first instance because it is the Division of the Commission that has authority to decide election-related cases, including pre-proclamation controversies. Finally, she contended that she may only be removed by a petition for quo warranto after her proclamation as duly-elected SK Chairman.
[5]

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

A portion of Resolution No. 5584 explained the procedure adopted by the Commission in denying due course the certificate of candidacy of a candidate. It reads: Under COMELEC Resolution No. 4801, Election Officers were given the duty to: (1) verify whether all candidates for barangay and sangguniang kabataan positions are registered voters of the barangaywhere they filed their certificates of candidacy; and (2) examine the entries of the certificates of candidacy and determine on the basis of

said entries whether the candidate concerned possesses all the qualifications of a candidate. Further, Election Officers are mandated to report by registered mail and by rush telegram to the Law Department of this Commission the names of candidates who are not registered voters in the place where they seek to run for public office within three (3) days from the last day for filing of certificates of candidacy. The names of these candidates, however, shall still be included in the certified lists of candidates until the Commission directs otherwise. By virtue of the said report, the Law Department makes a recommendation to the Commission En Banc, and the latter, by virtue of an En Banc Resolution either gives due course to or denies/cancels the certificates of candidacy of the said candidates. Verily, the administrative inquiry of the Commission on the eligibility of candidates starts from the time they filed their certificates of candidacy. The candidates, by virtue of the publication of COMELEC Resolution No. 4801 on May 25, 2002 in the Manila Standard and Manila Bulletin are deemed to have constructive notice of the said administrative inquiry. Thus, the Commission, by virtue of its administrative powers, may motu proprio deny/cancel the certificates of candidacy of candidates who are found to be not registered voters in the place where they seek to run for public office. Any registered candidate for the same office may also file a verified petition to deny due course to or cancel a certificate of candidacy pursuant to Section 69 (nuisance candidate) or Sec. 78 (material misrepresentation in the certificate of candidacy) of the Omnibus Election Code either personally or through a duly authorized representative within five (5) days from the last day for filing of certificate of candidacy directly with the Office of the Provincial Election Supervisor or with the Office of the Election Officer concerned. Hence, as long as the Election Officer reported the alleged ineligibility in accordance with COMELEC Resolution No. 4801, or the petition to deny due course to or cancel a certificate of candidacy was filed within the reglementary period, the fact that the Resolution of this Commission, denying due course to or canceling the certificate of candidacy of an ineligible candidate, was not promulgated or did not arrive prior to or on the day of the elections is therefore of no moment. The proclamation of an ineligible candidate is not a bar to the exercise of this Commissions power to implement the said Resolution of the Commission En Banc because it already acquired the jurisdiction to determine the ineligibility of the candidates who filed their certificates of candidacy even before elections by virtue of either the report of the

Election Officer or the petition to deny due course to or cancel the certificate of candidacy filed against them. On the matter of petitions for disqualification, the provisions of COMELEC Resolution No. 4801 are likewise clear: (1) A verified petition to disqualify a candidate on the ground of ineligibility or under Section 68 of the Omnibus Election Code may be filed at anytime before proclamation of the winning candidate by any registered voter or any candidate for the same office, (2) All disqualification cases filed on the ground of ineligibility shall survive, although the candidate has already been proclaimed. Clearly, by virtue of the above-quoted provisions, the proclamation of a candidate who is found to be disqualified is also not a bar to the Commissions power to order a proclaimed candidate to cease and desist from taking his oath of office or from assuming the position to which he was elected. By way of contrast, in case of proclaimed candidates who were found to be ineligible only after they were elected and proclaimed, the provisions of Section 253 of the Omnibus Election Code are clear: The remedy of losing candidates is to file a petition for quo warranto before the metropolitan or municipal trial court. This is logical The Commission did not acquire jurisdiction over these proclaimed candidates prior to election (i.e., There was no report from the Election Officer regarding their ineligibility and no petition to deny due course to or cancel certificate of candidacy and/or petition for disqualification was filed against them.) Thus, the Commission has no jurisdiction to annul their proclamation on the ground of ineligibility, except in cases wherein the proclamation is null and void for being based on incomplete canvass. Thus, the Commission ruled: Premises considered, the Commission, RESOLVED, as it hereby RESOLVES, to establish a policy as follows: ON PROCLAIMED CANDIDATES FOUND TO BE INELIGIBLE FOR BEING NOT REGISTERED VOTERS IN THE PLACE WHERE THEY WERE ELECTED. (a) For a proclaimed candidate whose certificate of candidacy was denied due course to or cancelled by virtue of a Resolution of the Commission En Banc albeit such Resolution did not arrive on time.

1. To DIRECT the Election Officers concerned to implement the resolution of the Commission deleting the name of the candidate whose certificate of candidacy was denied due course; 2. To DIRECT the candidate whose name was ordered deleted to cease and desist from taking his oath of office or from assuming the position to which he was elected, unless a temporary restraining order was issued by the Supreme Court; and 3. To RECONVENE the Board of Canvassers for the purpose of proclaiming the duly-elected candidates and correcting the Certificate of Canvass of Proclamation.
[7]

The Commission further stated: Considering that there are queries as to the status of the proclamation of disqualified candidates as an offshoot of Resolution No. 5584, the same was amended by virtue of Resolution No. 5666, the dispositive portion of which now reads: Considering the above-quoted provision, the Commission RESOLVED, as it hereby RESOLVES, to APPROVE the recommendation of Commissioner Sadain to amend Resolution No. 5584 promulgated on 10 August 2002 with modification. Accordingly, Resolution No. 5584 shall now read as follows:
I

ON PROCLAIMED CANDIDATES FOUND TO BE INELIGIBLE FOR BEING NOT REGISTERED VOTERS IN THE PLACE WHERE THEY WERE ELECTED XXX XXX (a) xxx (b) xxx (c) xxx (d) For both (a) and (b), in the event that the disqualified candidate is proclaimed the winner despite his disqualification or despite the pending disqualification case filed before his proclamation, but which is subsequently resolved against him, the proclamation of said disqualified candidate is hereby declared void from the beginning, even if the dispositive portion of the resolution disqualifying him or canceling his certificate of candidacy does not provide for such an annulment.
[8]

Hence, petitioner filed the instant petition seeking: a) To declare illegal and unconstitutional the COMELEC Resolution No. 5363 promulgated on 15 July 2002 and COMELEC Resolution No. 5781 promulgated on October 7, 2002 and any other COMELEC actions and resolutions which are intended to summarily oust and remove petitioner as SK Chairman of Barangay 38, Pasay City without any notice, inquiry, election protest, petition forquo warranto, investigation and hearing, and therefore a clear violation of due process of law. b) To declare illegal the aforesaid COMELEC Resolutions sitting en banc which does not have authority to decide election related case, including preproclamation controversies, in the first instance, in consonance to this Honorable Courts ruling in the cases of Sarmiento vs. COMELEC, G.R. No. 87308, August 29, 1989 and Garvida vs. Sales, G.R. No. 124893, April 18, 1997. c) To declare unconstitutional Sections 6 and 7 of R.A. 9164 and also to declare the age of membership and its officers of the KK or SK organization from 15 to 21 years old in accordance with Sec. 39 (f) and Sec. 423 (b) and other provisions of R.A. 7160 otherwise known as Local Government Code of 1991. d) If Sections 6 and 7 of R.A. 9164 are sustained as constitutional to direct all SK Officers and Members who are now more than 18 years old to cease and desist from continuously functioning as such SK Officers and Members and to vacate their respective SK Officers position, as they are no longer members of the Sangguniang Kabataan organization or Katipunan ng Kabataan organization for being over age upon attaining the age of 18 years old. e) To direct respondents to pay the salary, allowance and other benefits of the petitioner as SK Chairperson of Barangay 38, Pasay City.
[9]

Stripped of the non-essentials, the only issue in this case is the validity of Resolution No. 5363 of the COMELEC. Petitioner argues that she was deprived of due process when the COMELEC issued Resolution No. 5363 canceling her certificate of candidacy. She claims that the resolution was intended to oust her from her position as SK Chairman without any appropriate action and proceedings. The COMELEC, on the other hand, defends its resolution by invoking its administrative power to enforce and administer election laws. Thus, in the exercise of such power, it maymotu proprio deny or cancel the certificates of

candidacy of candidates who are found to be unqualified for the position they are seeking. The Commission further contends that the publication of COMELEC Resolution No. 4801 governing the conduct of the Barangay and SK elections in two newspapers of general circulation is sufficient notice to the candidates regarding the Commissions administrative inquiry into their certificates of candidacy. The petition is impressed with merit. The COMELEC is an institution created by the Constitution to govern the conduct of elections and to ensure that the electoral process is clean, honest, orderly, and peaceful. It is mandated to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall. As an independent Constitutional Commission, it is clothed with the three powers of government - executive or administrative, legislative, and quasi-judicial powers. The administrative powers of the COMELEC, for example, include the power to determine the number and location of polling places, appoint election officials and inspectors, conduct registration of voters, deputize law enforcement agencies and government instrumentalities to ensure free, orderly, honest, peaceful and credible elections; register political parties, organization or coalitions, accredit citizens arms of the Commission, prosecute election offenses, and recommend to the President the removal or imposition of any other disciplinary action upon any officer or employee it has deputized for violation or disregard of its directive, order or decision. It also has direct control and supervision over all personnel involved in the conduct of election. Its legislative authority is found in its power to promulgate rules and regulations implementing the provisions of the Omnibus Election Code or other laws which the Commission is required to enforce and administer. The Constitution has also vested it with quasijudicial powers when it was granted exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective regional, provincial and city officials; and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction.
[10] [11] [12] [13]

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

The COMELEC asserts that it is authorized to motu proprio deny due course to or cancel a certificate of candidacy based on its broad administrative power to enforce and administer all laws and regulations relative to the conduct of elections. We disagree. The Commission may not, by itself, without the proper proceedings, deny due course to or cancel a certificate of candidacy filed in due form. When a candidate files his certificate of candidacy, the COMELEC has a ministerial duty to receive and acknowledge its receipt. This is provided in Sec. 76 of the Omnibus Election Code, thus: Sec. 76. Ministerial duty of receiving and acknowledging receipt. - The Commission, provincial election supervisor, election registrar or officer designated by the Commission or the board of election inspectors under the succeeding section shall have the ministerial duty to receive and acknowledge receipt of the certificate of candidacy. The Court has ruled that the Commission has no discretion to give or not to give due course to petitioners certificate of candidacy. The duty of the COMELEC to give due course to certificates of candidacy filed in due form is ministerial in character. While the Commission may look into patent defects in the certificates, it may not go into matters not appearing on their face. The question of eligibility or ineligibility of a candidate is thus beyond the usual and proper cognizance of said body.
[14] [15]

Nonetheless, Section 78 of the Omnibus Election Code allows any person to file before the COMELEC a petition to deny due course to or cancel a certificate of candidacy on the ground that any material representation therein is false. It states: Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after notice and hearing, not later than fifteen days before the election. Under Rule 23 of the COMELEC Rules of Procedure, the petition shall be heard summarily after due notice. It is therefore clear that the law mandates that the candidate must be notified of the petition against him and he should be given the opportunity to

present evidence in his behalf. This is the essence of due process. Due process demands prior notice and hearing. Then after the hearing, it is also necessary that the tribunal shows substantial evidence to support its ruling. In other words, due process requires that a party be given an opportunity to adduce his evidence to support his side of the case and that the evidence should be considered in the adjudication of the case. In a petition to deny due course to or cancel a certificate of candidacy, since the proceedings are required to be summary, the parties may, after due notice, be required to submit their position papers together with affidavits, counter-affidavits, and other documentary evidence in lieu of oral testimony. When there is a need for clarification of certain matters, at the discretion of the Commission en banc or Division, the parties may be allowed to cross-examine the affiants.
[16] [17]

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

The determination whether a material representation in the certificate of candidacy is false or not, or the determination whether a candidate is eligible for the position he is seeking involves a determination of fact where both parties must be allowed to adduce evidence in support of their contentions. Because the resolution of such fact may result to a deprivation of ones right to run for public office, or, as in this case, ones right to hold public office, it is only proper and fair that the candidate concerned be notified of the proceedings against him and that he be given the opportunity to refute the allegations against him. It should be stressed that it is not sufficient, as the COMELEC claims, that the candidate be notified of the Commissions inquiry into the veracity of the contents of his certificate of candidacy, but he must also be allowed to present his own evidence to prove that he possesses the qualifications for the office he seeks. In view of the foregoing discussion, we rule that Resolution No. 5363 and Resolution No. 5781, canceling petitioners certificate of candidacy without proper proceedings, are tainted with grave abuse of discretion and therefore void.

We need not rule on the question raised by petitioner as regards the constitutionality of Sections 6 and 7 of Republic Act No. 9164 lowering the age of membership in the SK as it is not the lis mota of this case. IN VIEW WHEREOF, COMELEC Resolution No. 5363 promulgated on July 15, 2002 and COMELEC Resolution No. 5781 issued on October 7, 2002 are hereby SET ASIDE. SO ORDERED.

[G.R. No. 147571. May 5, 2001]

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

Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research institution conducting surveys in various fields, including economics, politics, demography, and social development, and thereafter processing, analyzing, and publicly reporting the results thereof. On the other hand, petitioner Kamahalan Publishing Corporation publishes the Manila Standard, a newspaper of general circulation, which features newsworthy items of information including election surveys. Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing 5.4 of R.A. No. 9006 (Fair Election Act), which provides:

Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election.
The term election surveys is defined in 5.1 of the law as follows:

Election surveys refer to the measurement of opinions and perceptions of the voters as regards a candidates popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters preference for candidates or publicly discussed issues during the campaign period (hereafter referred to as Survey).
To implement 5.4, Resolution 3636, 24(h), dated March 1, 2001, of the COMELEC enjoins

Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election.
Petitioner SWS states that it wishes to conduct an election survey throughout the period of the elections both at the national and local levels and release to the media the results of such survey as well as publish them directly. Petitioner Kamahalan Publishing Corporation, on the other hand, states that it intends to publish election survey results up to the last day of the elections on May 14, 2001.

Petitioners argue that the restriction on the publication of election survey results constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint. They claim that SWS and other pollsters conducted and published the results of surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before the election day without causing confusion among the voters and that there is neither empirical nor historical evidence to support the conclusion that there is an immediate and inevitable danger to the voting process posed by election surveys. They point out that no similar restriction is imposed on politicians from explaining their opinion or on newspapers or broadcast media from writing and publishing articles concerning political issues up to the day of the election. Consequently, they contend that there is no reason for ordinary voters to be denied access to the results of election surveys which are relatively objective. Respondent Commission on Elections justifies the restrictions in 5.4 of R.A. No. 9006 as necessary to prevent the manipulation and corruption of the electoral process by unscrupulous and erroneous surveys just before the election. It contends that (1) the prohibition on the publication of election survey results during the period proscribed by law bears a rational connection to the objective of the law, i.e., the prevention of the debasement of the electoral process resulting from manipulated surveys, bandwagon effect, and absence of reply; (2) it is narrowly tailored to meet the evils sought to be prevented; and (3) the impairment of freedom of expression is minimal, the restriction being limited both in duration, i.e., the last 15 days before the national election and the last 7 days before a local election, and in scope as it does not prohibit election survey results but only require timeliness. Respondent claims that in National Press Club v. COMELEC,[1] a total ban on political advertisements, with candidates being merely allocated broadcast time during the so-called COMELEC space or COMELEC hour, was upheld by this Court. In contrast, according to respondent, it states that the prohibition in 5.4 of R.A. No. 9006 is much more limited. For reasons hereunder given, we hold that 5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of freedom of speech, expression, and the press. To be sure, 5.4 lays a prior restraint on freedom of speech, expression, and the press by prohibiting the publication of election survey results affecting candidates within the prescribed periods of fifteen (15) days immediately preceding a national election and seven (7) days before a local election. Because of the preferred status of the constitutional rights of speech, expression, and the press, such a measure is vitiated by a weighty presumption of invalidity.[2] Indeed, any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. . . . The Government thus carries a heavy burden of showing justification for the enforcement of such restraint.[3] There is thus a reversal of the normal presumption of validity that inheres in every legislation. Nor may it be argued that because of Art. IX-C, 4 of the Constitution, which gives the COMELEC supervisory power to regulate the enjoyment or utilization of franchise for the operation of media of communication, no presumption of invalidity attaches to a measure like 5.4. For as we have pointed out in sustaining the ban on media political advertisements, the grant of power to the COMELEC under Art. IX-C, 4 is limited to ensuring equal opportunity, time, space, and the right to reply as well as uniform and reasonable rates of charges for the use of such media facilities for public information campaigns and forums among candidates.[4] This Court stated:

The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in respect of exercises of supervisory or regulatory authority on the part of the Comelec for the purpose of securing equal opportunity among candidates for political office, although such supervision or regulation may result in some limitation of the rights of free speech and free press.[5]
MR. JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present danger for determining the validity of 5.4. Indeed, as has been pointed out in Osmea v. COMELEC,[6]this test was originally formulated for the criminal law and only later appropriated for free speech cases. Hence, while it may be useful for determining the validity of laws dealing with inciting to sedition or incendiary speech, it may not be adequate for such regulations as the one in question. For such a test is concerned with questions of the gravity and imminence of the danger as basis for curtailing free speech, which is not the case of 5.4 and similar regulations. Instead, MR. JUSTICE KAPUNAN purports to engage in a form of balancing by weighing and balancing the circumstances to determine whether public interest [in free, orderly, honest, peaceful and credible elections] is served by the regulation of the free enjoyment of the rights (page 7). After canvassing the reasons for the prohibition, i.e., to prevent last-minute pressure on voters, the creation of bandwagon effect to favor candidates, misinformation, the junking of weak and losing candidates by their parties, and the form of election cheating called dagdagbawas and invoking the States power to supervise media of information during the election period (pages 11-16), the dissenting opinion simply concludes:

Viewed in the light of the legitimate and significant objectives of Section 5.4, it may be seen that its limiting impact on the rights of free speech and of the press is not unduly repressive or unreasonable. Indeed, it is a mere restriction, not an absolute prohibition, on the publication of election surveys. It is limited in duration; it applies only during the period when the voters are presumably contemplating whom they should elect and when they are most susceptible to such unwarranted persuasion. These surveys may be published thereafter. (Pages 17-18)
The dissent does not, however, show why, on balance, these considerations should outweigh the value of freedom of expression. Instead, reliance is placed on Art. IX-C, 4. As already stated, the purpose of Art. IX-C, 4 is to ensure equal opportunity, time, and space and the right of reply, including reasonable, equal rates therefor for public information campaigns and forums among candidates. Hence the validity of the ban on media advertising. It is noteworthy that R.A. No. 9006, 14 has lifted the ban and now allows candidates to advertise their candidacies in print and broadcast media. Indeed, to sustain the ban on the publication of survey results would sanction the censorship of all speaking by candidates in an election on the ground that the usual bombasts and hyperbolic claims made during the campaigns can confuse voters and thus debase the electoral process. In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing predictably results in sustaining the challenged legislation and leaves freedom of speech, expression, and the press with little protection. For anyone who can bring a plausible justification forward can easily show a rational connection between the statute and a legitimate

governmental purpose. In contrast, the balancing of interest undertaken by then Justice Castro in Gonzales v. COMELEC,[7] from which the dissent in this case takes its cue, was a strong one resulting in his conclusion that 50-B of R.A. No. 4880, which limited the period of election campaign and partisan political activity, was an unconstitutional abridgment of freedom of expression. Nor can the ban on election surveys be justified on the ground that there are other countries 78, according to the Solicitor General, while the dissent cites 28 which similarly impose restrictions on the publication of election surveys. At best this survey is inconclusive. It is noteworthy that in the United States no restriction on the publication of election survey results exists. It cannot be argued that this is because the United States is a mature democracy. Neither are there laws imposing an embargo on survey results, even for a limited period, in other countries. As pointed out by petitioners, the United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland, Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are no older nor more mature than the Philippines in political development, do not restrict the publication of election survey results. What test should then be employed to determine the constitutional validity of 5.4? The United States Supreme Court, through Chief Justice Warren, held in United States v. OBrien:

[A] government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of speech, expression and press] is no greater than is essential to the furtherance of that interest.[8]
This is so far the most influential test for distinguishing content-based from content-neutral regulations and is said to have become canonical in the review of such laws.[9] It is noteworthy that the OBrientest has been applied by this Court in at least two cases.[10] Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmental interest is not unrelated to the suppression of free expression. Moreover, even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in question. Our inquiry should accordingly focus on these two considerations as applied to 5.4. First. Sec. 5.4 fails to meet criterion [3] of the OBrien test because the causal connection of expression to the asserted governmental interest makes such interest not unrelated to the suppression of free expression. By prohibiting the publication of election survey results because of the possibility that such publication might undermine the integrity of the election, 5.4 actually suppresses a whole class of expression, while allowing the expression of opinion concerning the same subject matter by newspaper columnists, radio and TV commentators, armchair theorists, and other opinion makers. In effect, 5.4 shows a bias for a particular subject matter, if not viewpoint, by preferring personal opinion to statistical results. The constitutional guarantee of freedom of expression means that the government has no power to restrict

expression because of its message, its ideas, its subject matter, or its content.[11] The inhibition of speech should be upheld only if the expression falls within one of the few unprotected categories dealt with in Chaplinsky v. New Hampshire,[12] thus:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
Nor is there justification for the prior restraint which 5.4 lays on protected speech. In Near v. Minnesota,[13] it was held:

[The] protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. . . . No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government . . . .
Thus, contrary to the claim of the Solicitor General, the prohibition imposed by 5.4 cannot be justified on the ground that it is only for a limited period and is only incidental. The prohibition may be for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a category of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a national election and seven (7) days immediately before a local election. This sufficiently distinguishes 5.4 from R.A. No. 6646, 11(b), which this Court found to be valid in National Press Club v. COMELEC[14] and Osmea v. COMELEC.[15] For the ban imposed by R.A. No. 6646, 11(b) is not only authorized by a specific constitutional provision,[16] but it also provided an alternative so that, as this Court pointed out in Osmea, there was actually no ban but only a substitution of media advertisements by the COMELEC space and COMELEC hour. Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of speech and the resulting restriction of free expression is only incidental, 5.4 nonetheless fails to meet criterion [4] of the OBrien test, namely, that the restriction be not greater than is necessary to further the governmental interest. As already stated, 5.4 aims at the prevention of last-minute pressure on voters, the creation of bandwagon effect, junking of weak or losing candidates, and resort to the form of election cheating called dagdagbawas. Praiseworthy as these aims of the regulation might be, they cannot be attained at the

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

To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false election propaganda, after due notice and hearing.
This is surely a less restrictive means than the prohibition contained in 5.4. Pursuant to this power of the COMELEC, it can confiscate bogus survey results calculated to mislead voters. Candidates can have their own surveys conducted. No right of reply can be invoked by others. No principle of equality is involved. It is a free market to which each candidate brings his ideas. As for the purpose of the law to prevent bandwagon effects, it is doubtful whether the Government can deal with this natural-enough tendency of some voters. Some voters want to be identified with the winners. Some are susceptible to the herd mentality. Can these be legitimately prohibited by suppressing the publication of survey results which are a form of expression? It has been held that [mere] legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions.[18] To summarize then, we hold that 5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than the suppression of freedom of expression. On the other hand, the COMELEC contends that under Art. IX-A, 7 of the Constitution, its decisions, orders, or resolutions may be reviewed by this Court only by certiorari. The flaws in this argument is that it assumes that its Resolution 3636, dated March 1, 2001 is a decision, order, or resolution within the meaning of Art. IX-A, 7. Indeed, counsel for COMELEC maintains that Resolution 3636 was rendered by the Commission. However, the Resolution does not purport to adjudicate the right of any party. It is not an exercise by the COMELEC of its adjudicatory power to settle the claims of parties. To the contrary, Resolution 3636 clearly states that it is promulgated to implement the provisions of R.A. No. 9006. Hence, there is no basis for the COMELECs claim that this petition for prohibition is inappropriate. Prohibition has been found appropriate for testing the constitutionality of various election laws, rules, and regulations.[19] WHEREFORE, the petition for prohibition is GRANTED and 5.4 of R.A. No. 9006 and 24(h) of COMELEC Resolution 3636, dated March 1, 2001, are declared unconstitutional. SO ORDERED.

[G.R. No. 155717. October 23, 2003]

ALBERTO JARAMILLA, petitioner, vs. COMMISSION ON ELECTIONS, ANTONIO SUYAT, MUNICIPAL BOARD OF CANVASSERS OF STA. CRUZ, ILOCOS SUR, THE NEW MUNICIPAL BOARD OF CANVASSERS (COMELEC), AND IRENEO CORTEZ, respondents. DECISION
AZCUNA, J.:

For review before the Court is the instant petition for certiorari with prayer for temporary restraining order and preliminary injunction ascribing grave abuse of discretion to public respondent Commission on Elections (COMELEC) in issuing its en banc resolution dated October 24, 2002.
[1]

The antecedent facts, as summarized in the COMELEC resolution, are as follows:

[2]

[Respondent] Antonio Suyat and [petitioner] Alberto J. Jaramilla both ran for the position of Member of the Sangguniang Bayan in the Municipality of Sta. Cruz, Ilocos Sur in the May 14, 2001 elections. On May 16, 2001, the Municipal Board of Canvassers of Sta. Cruz, proclaimed the winning candidates for the offices of Mayor, Vice-Mayor and eight (8) members of the Sangguniang Bayan. The Certificate of Canvass of Votes and Proclamation shows the following results and ranking with respect to the members of the Sangguniang Bayan, to wit: Name of Candidates 1. RAGUCOS, Ma. Luisa Laxamana 2. ABAYA, Juan Jr., Andaquig 3. GINES, Fidel Cudiamat 4. QUILOP, Renato Avila 5. BILIGAN, Osias Depdepen 6,013 5,789 5,227 5,130 Total Votes Obtained 6,324

6. RUIZ, Agustin Turgano 7. JARAMILLA, Alberto Jimeno 8. CORTEZ, Ireneo Habon

4,972 4,815 4,807

In the tabulated results issued by the Election Officer and Chairperson of the Municipal Board of Canvassers of Sta. Cruz, it is shown that [respondent Suyat] obtained Four thousand seven hundred seventy nine (4,779) votes and was ranked no. 9. Upon review by [respondent Suyat], he discovered that [petitioner] was credited with only twenty three (23) votes per Election Return from Precinct No. 34A1. However, when the figures were forwarded to the Statement of Votes by Precinct, [petitioner] was credited with seventy three (73) votes for Precinct No. 34A1 or fifty (50) votes more than what he actually obtained. If the entry were to be corrected, the affected candidates would be ranked as follows: 7. CORTEZ, Ireneo Habon 4,807 8. SUYAT, Antonio 4,779 9. JARAMILLA, Alberto 4,765 On June 13, 2001, respondent Suyat filed before the COMELEC en banc an Urgent Motion for Issuance of Order to Reconvene, which the latter treated as a Petition for Correction of Manifest Error. Petitioner countered in his Answer that said petition should be dismissed for having been filed out of time and for lack of the required certification of non-forum shopping.
[3] [4]

On October 24, 2002, COMELEC en banc issued the assailed resolution, the dispositive portion of which reads:
[5]

WHEREFORE, premises considered, the Motion/Petition is hereby GRANTED. The proclamation of Respondent ALBERTO J. JARAMILLA [herein petitioner] is ANNULLED. A New Municipal Board of Canvassers is hereby created composed of the following: Atty. NELIA AUREUS Chairman Atty. MICHAEL D. DIONEDA Vice Chairman Atty. ALLEN FRANCIS F. ABAYA Member

The New Board is hereby directed to immediately convene at the Comelec Session Hall, Intramuros, Manila, after due notice to parties and effect a correction in the entry in the Statement of Votes by Precinct particularly the votes for Respondent Alberto Jaramilla [herein petitioner], who should be credited with twenty three (23) votes only. Thereafter, the New Board shall prepare a corrected Certificate of Canvass and Proclamation on the basis of the New Statement of Votes and proclaim the Petitioner [herein private respondent Suyat] as the eighth (8th) Board Member of Sta. Cruz, Ilocos Sur. Mr. IreneoHabon Cortez shall be declared the 7th Municipal Board Member. The New Board shall use the Comelec copies of the election returns and Statement of Votes pertaining to the instant case. SO ORDERED. Hence the present recourse by petitioner anchored on the following grounds:
I. THAT THE COMMISSION ON ELECTION ERRED IN NOT DISMISSING THE CASE CONSIDERING THAT THE PETITION FILED BEFORE THE COMELEC WAS FILED BEYOND THE PRESCRIPTIVE PERIOD AS SET FORTH IN THE COMELEC RULES OF PROCEDURE. II. THAT THE COMMISSION ON ELECTION ERRED IN GIVING DUE COURSE TO THE PETITION INSTEAD OF DISMISSING IT CONSIDERING THAT THE PETITION LACKED A CERTIFICATION AGAINST FORUM-SHOPPING. III. THAT THE COMMISSION ON ELECTION ERRED IN NOT DISMISSING THE CASE FOR FAILURE TO PAY THE DOCKET OR FILING FEE ON TIME.[6]

Before discussing the merits, although not raised in the petition, the Court deems it appropriate to discuss the jurisdiction of the COMELEC en banc in election cases. Article IX-C of the Constitution states in part 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.
[7]

As stated in the provision, and in line with the Courts recent pronouncement cases including pre-proclamation in Milla v. Balmores-Laxa, election controversies should first be heard and decided by a division of the COMELEC, and then by the commission en banc if a motion for reconsideration of the division is filed.
[8]

It must be noted however that this provision applies only in cases where the COMELEC exercises its adjudicatory or quasi-judicial powers, and not

when it merely exercises purely administrative functions. This doctrine was laid out in Castromayor v. COMELEC, and reiterated in subsequent cases. Accordingly, when the case demands only the exercise by the COMELEC of its administrative functions, such as the correction of a manifest mistake in the addition of votes or an erroneous tabulation in the statement of votes, the COMELEC en banc can directly act on it in the exercise of its constitutional function to decide questions affecting elections.
[9] [10] [11]

The Petition for Correction of Manifest Errors in the case at bar alleges an erroneous copying of figures from the election return to the Statement of Votes by Precinct. Such an error in the tabulation of the results, which merely requires a clerical correction without the necessity of opening ballot boxes or examining ballots, demands only the exercise of the administrative power of the COMELEC. Hence, the Commission en banc properly assumed original jurisdiction over the aforesaid petition. Now we proceed to the merits of the case. Petitioner bewails the fact that the COMELEC took cognizance of respondent Suyats petition for correction despite its having been filed beyond the 5-day reglementary period fixed in the COMELEC Rules of Procedure and its lack of certification against forum-shopping.
[12]

Petitioner overlooks the fact that the COMELEC has the discretion to suspend its rules or any portion thereof in the interest of justice. Section 4, Rule 1 of the COMELEC Rules expressly provides that: SEC. 4. Suspension of the Rules In the interest of justice and in order to obtain speedy disposition of all matters pending before the commission, these rules or any portion thereof may be suspended by the Commission. The COMELEC therefore has authority to suspend the reglementary periods provided by the rules, or the requirement of certification of non-forum shopping for that matter, in the interest of justice and speedy resolution of the cases before it.
[13]

Petitioner next points out respondent Suyats omission to pay the prescribed filing fees. As correctly pointed out by the Office of the Solicitor General, the COMELEC is not constrained to dismiss a case before it by reason of nonpayment of filing fees. Section 18, Rule 40 the COMELEC Rules of Procedure states:
[14]

SEC 18. Nonpayment of Prescribed Fees If the fees above prescribed are not paid, the Commission may refuse to take action thereon until they are paid and may dismiss the action or the proceeding.
[15]

The use of the word may in the aforecited provision readily shows that the COMELEC is conferred the discretion whether to entertain the petition or not in case of non-payment of legal fees. And even if it were not afforded such discretion, as discussed above, it is authorized to suspend its rules or any portion thereof in the interest of justice.
[16] [17]

It is noteworthy that petitioner only raised issues on the foregoing technicalities, without questioning the COMELECs finding of manifest error in the tabulation of votes. Even at the COMELEC stage, his denial in his Answer was unsubstantiated by any rebuttal evidence to disprove the submitted photocopies of the election returns and statement of votes, which clearly showed the erroneous addition of 50 votes in his favor. The COMELECs unquestioned findings of fact are therefore sustained. The Court reiterates that factual findings of the COMELEC based on its own assessments and duly supported by evidence, are given conclusive weight in the absence of arbitrariness or grave abuse of discretion.
[18] [19]

Laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections. Adherence to technicality that would put a stamp on a palpably void proclamation, with the inevitable result of frustrating the peoples will, can never be countenanced.
[20] [21]

WHEREFORE, finding no grave abuse of discretion committed by public respondent COMELEC, its Resolution en banc dated October 24, 2002 is AFFIRMED. The petition is DISMISSED. No pronouncement as to costs. SO ORDERED.

[G.R. No. 150469. July 3, 2002]

MAYOR JUN RASCAL CAWASA, COUNCILORS MAASIRAL DAMPA, H. ACKIL MAMANTUC, MOMOLAWAN MACALI, ANDAR TALI, ALLAN SANAYON, and AMIN SANGARAN, petitioners, vs. THE COMMISSION ON ELECTIONS and ABDULMALIK M. MANAMPARAN,respondents. DECISION
CARPIO, J.:

The Case Before us is a Petition for Certiorari with prayer for the issuance of a writ of preliminary injunction and a temporary restraining order under Rule 64 of the 1997 Rules of Civil Procedure[1] assailing the Resolution of the Commission on Elections (Comelec for brevity) en banc[2] in SPC No. 01-276 dated October 24, 2001, the dispositive portion of which reads:

WHEREFORE, premises considered, the instant petition is hereby GRANTED. The results of special elections held on 30 May 2001 covering Precincts Nos. 2A, 2A1/2A2 in Barangay Bangko, Precinct No. 3A in Barangay Cabasaran and clustered Precinct No. 10A/10A1 in Barangay Liangan are hereby ANNULLED. Accordingly, the proclamation of all winning candidates insofar as the results in the four (4) contested precincts affect the standing of candidates is hereby SET ASIDE until the choice of the people is finally determined through another special election to be authorized, conducted and supervised by this Commission as soon as possible unless restrained. Finally, the Law Department is hereby directed to investigate the election irregularities that transpired in the Municipality of Nunungan, Lanao del Norte involving the Office of the Election Officer and thereafter, file election offense case/s should there be finding of probable cause and other appropriate cases if warranted under the circumstances. SO ORDERED.
[3]

The Facts During the May 14, 2001 elections, petitioner Jun Rascal Cawasa (petitioner Cawasa for brevity) and private respondent Adbulmalik M. Manamparan (private respondent Manamparan for brevity) were among the candidates for mayor in the Municipality of Nunungan, Lanao del Norte (Nunungan for brevity). Out of the forty (40) precincts in Nunungan, only thirty-six (36) functioned, as there was a failure of election in the remaining four (4) precincts. The following were the precincts, barangays, polling places and number of registered voters where there was a failure of election:

PRECINCT NO. BARANGAY 2A 2A1/2A2 3A 10A/10A1 Bangko Bangko Cabasaran Liangan

POLLING PLACE

REG. VOTERS 200 254 155 236

Bangko Prim School -doCabasaran Prim. Sch. Liangan Prim. Sch. Total 845

After canvassing the election returns from the 36 precincts, the Municipal Board of Canvassers of Nunungan deferred the proclamation of all winning candidates due to the failure of the said 4 precincts to function. Special elections were set on May 30, 2001 considering that the number of registered voters in the remaining four precincts would affect the election results. The Comelec promulgated Resolution No. 4360 on May 21, 2001 authorizing the conduct of special elections in the affected areas, including barangays Bangko, Cabasaran and Liangan in Nunungan, the pertinent portion of which states:

VII. Memorandum of Commissioner Mehol K. Sadain dated 19 May 2001. REGION Region XII MUNICIPALITY/PROVINCE Nunu(n)gan, Lanao del Norte Barangays: 1. Bangco 2. Cabasaran 3. Liangan

REASONS : disagreement of venue of election, tension of BEIs, forcible taking of the ballot boxes and other election paraphernalia. Scheduled date: May 30, 2001

xxx In view of the foregoing the Commission RESOLVED, as it hereby RESOLVED, as follows: 1. To schedule the special elections in the foregoing areas on May 26 and 30, 2001 as herein specified; xxx Let the Executive Director, Deputy Executive Directors for Operations and all the working Committees implement this resolution. SO ORDERED.
[4]

As scheduled, the special elections covering the 4 precincts were conducted on May 30, 2001. The special elections for Precincts Nos. 2A, 2A1/2A2 of Barangay Bangko were conducted in the Municipality of Sultan Naga Dimaporo, Lanao del Norte. The special elections for Precinct No. 3A of Barangay Cabasara and Precinct Nos. 10A/10A1 of Barangay Liangan were conducted in the Municipality of Sapad, Lanao del Norte. The Municipal Board of Canvassers of Nunungan canvassed the election returns of the 4 precincts on May 31, 2001. After the canvassing of the election returns, the Municipal Board of Canvassers proclaimed the winning candidates on the basis of the earlier 36 election returns of the May 14, 2001 regular elections and the 4 election returns of the 4 precincts subject of the special elections. The May 14, 2001 regular elections and the May 30, 2001 special elections show the following results with respect to the position of mayor:

30,

Sub-Total of Votes Obtained May 14, 2001 Total Regular Elections

Sub-Total of votes Grand Obtained May 2001 Special Elections 570 1,767 187 Margin . . . . . 297

Private Respondent Manamparan 1,197 Petitioner Cawasa 1,470

1,283

As shown above, during the May 14, 2001 regular elections, the lead of petitioner Cawasa was eighty six (86). After the May 30, 2001 special elections, private respondent Manamparan overcame the margin with a lead of 297 votes. Petitioner Cawasa was proclaimed mayor of Nunungan and his co-petitioners Maasiral Dampa, H. Ackil Mamantuc, Momolawan Macali, Andar Tali, Allan Sanayon and Amin Sangaran were also proclaimed as councilors of Nunungan. On June 4, 2001, private respondent Manamparan filed an appeal and petition to annul the proclamation of petitioner Cawasa docketed as SPC No. 01-252. The appeal/petition was dismissed by the Comelec Second Division on September 26, 2001. In the meantime, on June 8, 2001, private respondent Manamparan filed a petition for Annulment of Election Results during the May 30, 2001 Special Elections in Precincts No. 2A, 2A1/2A2, 3A, and 10A/10A1 of Nunungan, Lanao Del Norte, and Annulment of Canvass and Proclamation with Prayer for Issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction docketed as SPC Case No. 01276. Impleaded as respondents were petitioner Cawasa and the Municipal Board of Canvassers composed of Mario Allan Ballesta,[5] Nedalyn S. Sebial[6] and Iluminada O. Pegalan.[7] As mentioned at the outset, on October 24, 2001, the Comelec en banc promulgated a resolution annulling the results of the special elections of the 4 precincts (Precinct Nos. 2A, 2A1/2A2, 3A, 10A/10A1) held on May 30, 2001 conducted in the municipalities of Sultan Naga Dimaporo and Sapad. The Com elec en banc also annulled the proclamation of all winning candidates insofar as the results in the 4 contested precincts affect the standing of candidates. The Comelec Ruling In granting the petition, the Comelec held that the special elections in the 4 contested precincts were not genuinely held and resulted in failure to elect on account of fraud. The Comelecs ruling is summarized as follows: First. The Comelec clarified that the Comelec en banc can take cognizance of the petition for annulment of election results in accordance with Section 4 of RA 7166[8], otherwise known as the Synchronized Elections Law of 1991. It explained that while the proclamation of a candidate has the effect of terminating pre-proclamation issues, a proclamation that is a result of an illegal act is void and cannot be ratified by such proclamation and subsequent assumption of office. The Comelec declared that there is no forum-shopping considering that SPC 01-252 pending before the Second Division of the Comelec is a pre-proclamation controversy,[9] while SPC 01-276 pending before the Comelec en banc is a case for annulment of election results. Second. The Comelec found that the special elections were not held in the designated polling places in Nunungan but were transferred to the municipalities of Sapad and Sultan Naga Dimaporo without any authority from the Comelec. According to the Comelec, the Election Officer, who happened to be the chairman of the Municipal

Board of Canvassers, caused the transfer of the polling places without asking permission from the Comelec. The transfer was likewise in violation of the due process requirements found in Section 153 of the Omnibus Election Code. Moreover, it ruled that the unauthorized transfer of a polling place is also punishable as an election offense under Section 261(z) (17) of the Same Code. We quote the pertinent portion of the Comelec ruling thus:

The transfer of polling places cannot be done without due process. This is the explicit rule of Section 153 of the Omnibus Election Code, x x x: xxx xxx xxx

In the instant case, the Election Officer, who happened to be the Chairman of the respondent Board, also caused the transfer of the polling places without asking the permission of this Commission and in violation of the due process rule, thereby, making the afore-quoted Section 153 inutile. Considering these unwarranted acts of the official of this Commission, the sanctity of the special elections therefore is suspect. Nothing in the records could show that notice was given to the political candidates and to the registered voters affected by the special elections of the said transfer of polling places. Who therefore voted on the assailed special elections given these circumstances? This issue has never been squarely addressed by the respondents.
We take judicial notice of the distance of the venues of voting which are more or less 25 kilometers away from Nunungan, far from being accessible to the voters given the time and material constraints. The panorama of what is supposed to be a free and honest exercise of democracy is indeed rendered myopic by fraud perpetrated by no other than the COMELEC officials concerned.[10] Third. The Comelec found that the Municipal Board of Canvassers, headed by Mario Allan Ballesta, preposterously feigned ignorance of the fact that during the said special elections, members of the Philippine Army 26th Infantry Battalion served as election inspectors without authority from the Comelec. Hence, the instant petition. The Issues Petitioners argue that the COMELEC en banc Resolution was issued without jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction for the following reasons:

"1. The proclamation of the six (6) petitioners Maasiral Dampa, H. Ackil Mamantuc, Momolawan Macali, Andar Tali, Allan Sanayon, and Amin Sangaran were annulled and set aside in violation of due process of law. They were not impleaded as respondents in the petition to annul the election. They were not notified of the proceedings. x x x. 2. The transfer of the venue of the special elections at Sultan Naga Dimaporo and Sapad and the appointment of military personnel as members of the Board of election Inspectors of the four (4) precincts were agreed upon by the private respondent and the municipal candidates and their respective political parties. 3. The election officer in the exercise of his discretion has authority to transfer the venue of the special elections in view of the agreement of the political parties and municipal candidates on the transfer of the venue of the special elections. x x x. 4. There is substantial compliance with the provisions of Sec. 153 of the Omnibus Election Code. The political parties and municipal candidates of the municipality Nunungan were notified and in fact agreed to the transfer of venue of the special elections.

5.

The COMELEC en banc promulgated the October 24, 2001 resolution without requiring its election officer of Nunungan, the provincial election supervisor of Lanao del Norte, and Regional Election Director of Region XII to explain why the special elections of the four (4) precincts were transferred to the municipalities of Sultan Naga Dimaporo and Sapad. The petitioner Mayor Jun Rascal Cawasa prayed that the case be set for trial and hearing in order that the election officer of Nunungan be required to testify and explain the circumstances of the special elections. The COMELEC en banc did not act on the motion. It promulgated the resolution of October 24, 2001 without investigating the circumstances why the election officer transferred the venue of the special elections to the municipalities of Sultan Naga Dimaporo and Sapad. No hearing was conducted by the COMELEC en banc.[11]

Simply put, the issues raised boil down to whether or not : (1) the transfer of the polling places to the adjacent municipalities is legal; (2) the appointment of military personnel as members of the board of election inspectors is legal; and (3) the petitioners were accorded due process prior to the promulgation of the assailed resolution in SPC No. 01-276. The Courts Ruling The petition is bereft of merit. First Issue: Legality of the Transfer of Polling Places and Appointment of Military Personnel as Members of the Board of Election Inspectors There is no dispute that the venue of the special elections was transferred to the adjacent municipalities of Sultan Naga Dimaporo and Sapad in lieu of the regular polling places located in barangays Bangko, Cabasaran and Liangan. There is likewise no dispute that military personnel were appointed as members of the Board of Election Inspectors (BEI for brevity) in the 4 precincts. Petitioners and private respondent

Manamparan agree that the 4 precincts covered by the special elections with a total of 845 registered voters will affect the result of the elections. Petitioners insist on the validity of the conduct of the special elections claiming that the political parties and the municipal candidates were notified and in fact agreed on the transfer of venue and the appointment of military personnel as members of the BEI. They contend that there is substantial compliance with the provisions of Section 153 of the Omnibus Election Code considering that the election officer as the representative of the Comelec reported the matter to the Provincial Election Supervisor of Lanao del Norte and the transfer was not disapproved by the Comelec. Petitioners claim that an election officer has authority to transfer the polling places even four days before the scheduled election citingBalindong vs. Comelec[12] and Alonto vs. Comelec.[13] Petitioners fail to persuade. Sections 152, 153 and 154 of the Omnibus Election Code shed light on this matter, to wit:

SEC. 152. Polling Place. A polling place is the building or place where the board of election inspectors conducts its proceedings and where the voters shall cast their votes. SEC. 153. Designation of polling places. The location of polling places designated in the preceding regular election shall continue with such changes as the Commission may find necessary, after notice to registered political parties and candidates in the political unit affected, if any, and hearing: provided, That no location shall be changed within forty-five days before a regular election and thirty days before a special election or a referendum or plebiscite, except in case it is destroyed or it cannot be used. SEC. 154. Requirements for polling places. Each polling place shall be, as far as practicable, a ground floor and shall be of sufficient size to admit and comfortably accommodate forty voters at one time outside the guard rail for the board of election inspectors. The polling place shall be located within the territory of the precinct as centrally as possible with respect to the residence of the voters therein and whenever possible, such location shall be along a public road. No designation of polling places shall be changed except upon written petition of the majority of the voters of the precinct or agreement of all the political parties or by resolution of the Commission upon prior notice and hearing.
A public having the requirements prescribed in the preceding paragraph shall be preferred as polling place.[14] The transfer was made not only in blatant disregard of Comelec Resolution No. 4360 issued on May 21, 2001 specifying the polling places but also Sections 153 and 154 of the Election Code. As clearly provided by the law, the location of polling places

shall be the same as that of the preceding regular election. However, changes may be initiated by written petition of the majority of the voters of the precinct or agreement of all the political parties or by resolution of the Comelec after notice and hearing. But ultimately, it is the Comelec which determines whether a change is necessary after notice and hearing. The Comelec has unequivocally stated that nothing in the records showed that notice was given to the political candidates and registered voters affected by the transfer. Private respondent Manamparan has categorically denied petitioners claim that all the political parties and municipal candidates agreed to the transfer of venue. The Court discerns no substantiation of petitioners claim regarding the agreement to transfer. There is then no cogent reason for us to disturb the findings of the Comelec on this matter. Indeed, the factual findings of the Comelec supported by substantial evidence shall be final and non-reviewable.[15] Thus, it has been held that findings of fact of the Comelec based on its own assessments and duly supported by evidence, are conclusive upon this Court, more so, in the absence of a substantiated attack on the validity of the same.[16] Moreover, there is no question that the transfer of venue was made within the prohibited period of thirty days before the special election. Reliance on Balindong vs. Comelec[17] and Alonto vs. Comelec[18] is misplaced. Alonto involved an entirely different factual scenario from the instant case. In said case, the Court upheld the validity of the transfer of the counting and tallying of the votes after the closing of the polls from the precincts to the PC camps. The Court held that the transfer was dictated by necessity and authorized by the Comelec directly or by its provincial representative. The Court explained that while it is highly desirable that the authority for the transfer of the counting should be directly authorized by the Comelec itself, the latters denial of the petitioners motion for reconsideration where this legal point was advanced was tantamount to a validation of the authority issued by its provincial representatives. On the other hand, the Court in Balindong[19] held that the mere fact that the transfer of polling place was not made in accordance with law, particularly Secs. 152-154 of the Omnibus Election Code, does not warrant a declaration of failure of election and the annulment of the proclamation of the winning candidate, because the number of uncast votes will not affect the result of the election. In the case at bar, there is no dispute that the election returns from the 45 precincts will affect the results of the elections. Next, the appointment of military personnel as members of the BEI is another grave electoral irregularity that attended the special elections held on May 30, 2001. There was absolutely no legal basis for the appointment of military personnel as members of the BEI. Verily, the appointments were devoid of any justification other than the bare assertion, again, that the political parties and municipal candidates agreed on the said arrangement. The pertinent provisions of the Omnibus Election Code regarding the composition, appointments and substitution of the members of the BEI are quoted as follows:

SEC. 164. Composition and appointments of board of election inspectors. - At least thirty days before the date when the voters list is to be

prepared in accordance with this Code, in the case of a regular election or fifteen days before a special election, the Commission shall, directly or through its duly authorized representatives, constitute a board of election inspectors for each precinct to be composed of a chairman and a poll clerk who must be public school teachers, priority to be given to civil service eligibles, and two members, each representing the two accredited political parties. The appointment shall state the precinct to which they are assigned and the date of the appointment. SEC. 165. Oath of the members of the board of election inspectors. The members of the board of election inspectors, whether permanent, substitute or temporary, shall before assuming their office, take and sign an oath upon forms prepared by the Commission, before an officer authorized to administer oaths or, in his absence, before any other member of the board of election inspectors present, or in case no one is present, they shall take it before any voter. The oaths shall be sent immediately to the city or municipal treasurer. (Sec. 157, 1971 EC) SEC. 166. Qualification of members of the board of election inspectors. - No person shall be appointed chairman, member or substitute member of the board of election inspectors unless he is of good moral character and irreproachable reputation, a registered voter of the city or municipality, has never been convicted of any election offense or of any other crime punishable by more than six months of imprisonment, or if he has pending against him an information for any election offense. He must be able to speak and write English or the local dialect. (Sec. 114, 1978 EC) xxx SEC. 170. Relief and substitution of members of the board of election inspectors. - Public school teachers who are members of the board of election inspectors shall not be relieved nor disqualified from acting as such members, except for cause and after due hearing. xxx
Section 13 of Republic Act No. 6646[20] modified Section 164 of the Omnibus Election Code. Said section reads:

SEC. 13. Board of Election Inspectors. The board of election inspectors to be constituted by the Commission under Section 164 of Batas Pambansa Blg. 881 shall be composed of a chairman and two (2) members, one of whom

shall be designated as poll clerk, all of whom shall be public school teachers, giving preference to those with permanent appointments. In case there are not enough public school teachers, teachers in private schools, employees in the civil service, or other citizens of known probity and competence who are registered voters of the city or municipality may be appointed for election duty.
Clearly, the BEI shall be composed of a chairman and two members, all of whom are public school teachers. If there are not enough public school teachers, teachers in private schools, employees in the civil service or other citizens of known probity and competence may be appointed. It was highly irregular to replace the duly constituted members of the BEI, who were public school teachers. Nothing in petitioners pleadings would even suggest that the substitution was made for cause and after hearing. The importance of the constitution of the BEI to the conduct of free, honest and orderly elections cannot be overemphasized. The Court has held that, the members of the board of election inspectors are the front line election officers. They perform such duties and discharge such responsibilities that make them, in a real sense, foot soldiers who see to it that elections are free, honest and orderly. They are essential to the holding of elections.[21]

Second Issue: Denial of Due Process Petitioners claim that there was a clear violation of due process of law because a hearing was not conducted on the circumstances of the special election. Petitioners further claim that the Comelec rendered the assailed resolution without requiring its field officers, specifically, the election officer, provincial election supervisor and the regional election director to explain the transfer of the polling places. Lastly, petitioners point out that none of the eight (8) proclaimed members of the Sangguniang Bayan[22] of Nunungan, Lanao del Norte and the proclaimed Vice Mayor were notified and impleaded as respondents in the petition to annul the election results citing Velayo vs. Commission on Elections.[23] Section 4 of Republic Act No. 7166 or The Synchronized Elections Law of 1991 provides that the Comelec sitting en banc by a majority vote of its members may decide, among others, the declaration of failure of election and the calling of special elections as provided in Section 6 of the Omnibus Election Code. Said Section 6, in turn, provides as follows:

SEC. 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the

election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect.
A prayer to annul election results, as in the instant case, and a prayer to declare failure of elections based on allegations of fraud, terrorism, violence or analogous causes, are actually of the same nature and the Election Code denominates them similarly.[24] The Comelec may exercise the power to annul election results or declare a failure of election motu proprio[25] or upon a verified petition.[26] The hearing of the case shall be summary in nature.[27] A formal trial-type hearing is not at all times and in all instances essential to due process it is enough that the parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present evidence on which a fair decision can be based.[28] In fine, a trial is not at all indispensable to satisfy the demands of due process. The petition was heard by the Comelec en banc on June 27, 2001. During the said hearing, the Comelec directed the parties, as agreed upon, to submit their respective memoranda within five (5) days from date and after which, the case shall be submitted for resolution. Petitioners were duly heard through their pleadings, thus, there is no denial of procedural due process to speak of. Moreover, contrary to the claim of petitioners, the Municipal Board of Canvassers of Nunungan, including Election Officer Ballesta, were summoned to the hearing held on June 27, 2001 and furnished a copy of the petition. The pre-conditions for declaring a failure of election are: (1) that no voting has been held in any precinct or precincts because of force majeure, violence, terrorism, fraud or other analogous causes and (2) that the votes not cast therein are sufficient to affect the results of the elections. The concurrence of these two circumstances justifies the calling of special elections.[29] Here, the Comelec found that the special elections were vitiated by fraud due to the illegal transfer of the polling places and the appointment of military personnel as members of the BEI. Inevitably, the Comelec could not ascertain who voted during the special elections. The circumstances were such that the entire electoral process was not worthy of faith and credit, hence, in practical effect no election was held.[30] In Velayo vs. Commission of Elections,[31] the Court held that the non-inclusion of a proclaimed winner as respondent in a pre-proclamation controversy and his lack of notice of the proceedings in the Comelec which resulted in the cancellation of his proclamation constitute clear denial of due process. In the Velayo case, the proclaimed mayor and the members of the Municipal Board of Canvassers were not impleaded in the pre-proclamation cases brought before the Comelec. However, in this case, petitioner Cawasa and the members of the Municipal Board of Canvassers were in fact impleaded, notified and even heard by the Comelec in SPC No. 01-276. At this

late stage, public interest in the speedy disposition of this case will only be further derailed by the re-opening of the case for the benefit of petitioners-councilors who did not advance any new and substantial matters in this petition warranting the declaration that the special elections were valid and untainted by fraud. WHEREFORE, finding no grave abuse of discretion amounting to lack or excess of jurisdiction on the part of public respondent Commission on Elections, the instant petition is hereby DISMISSED. The resolution of the Commission on Elections en banc in SPC No. 01-276 dated October 24, 20001 is hereby AFFIRMED.

[G.R. No. 134096. March 3, 1999]

JOSEPH PETER S. SISON, petitioner, ELECTIONS, respondents. DECISION

ROMERO, J.:

vs. COMMISSION

ON

Before this Court is a petition for certiorari under Rule 65 of the Revised Rules of Court which impugns the Resolution[1] of public respondent Commission on Elections (COMELEC) dated June 22, 1998 that dismissed petitioner Joseph Peter S. Sison's earlier petition[2] in SPC No. 98-134, entitled In the Matter of the Petition to Suspend the Canvassing of Votes and/or Proclamation in Quezon City and to Declare a Failure of Elections. It appears that while the election returns were being canvassed by the Quezon City Board of Canvassers but before the winning candidates were proclaimed, petitioner commenced suit before the COMELEC by filing a petition seeking to suspend the canvassing of votes and/or proclamation in Quezon City and to declare a failure of elections. The said petition was supposedly filed pursuant to Section 6[3] of the Omnibus Election Code (Batas Pambansa Blg. 881, as amended) on the ground of massive and orchestrated fraud and acts analogous thereto which occurred after the voting and during the preparation of election returns and in the custody or canvass thereof, which resulted in a failure to elect.[4] In support of his allegation of massive and orchestrated fraud, petitioner cited specific instances which are summarized and set forth below:
1. The Board of Canvassers announced that election returns with no inner seal would be included in the canvass; 2. Board of Election Inspectors brought home copies of election returns meant for the City Board of Canvassers; 3. Petitioner, through counsel, raised written objections to the inclusion in the canvass of election returns which were either tampered with, altered or falsified, or otherwise not authentic; 4. According to the minutes of the City Board of Canvassers, there were precincts with missing election returns; 5. Several election returns with no data on the number of votes cast for vice mayoralty position; 6. Highly suspicious persons sneaking in some election returns and documents into the canvassing area; 7. Concerned citizen found minutes of the counting, keys, locks and metal seal in the COMELEC area for disposal as trash; 8. Board of Election Inspectors have volunteered information that they placed the copy of the election returns meant for the City Board of Canvassers in the ballot boxes deposited with the City Treasurer allegedly due to fatigue and lack of sleep;

9. Ballot boxes were never in the custody of the COMELEC and neither the parties nor their watchers were allowed to enter the restricted area where these boxes passed through on the way to the basement of the City Hall where they were supposedly kept; and 10. In the elections in Barangay New Era, there was a clear pattern of voting which would show that the election returns were manufactured and that no actual voting by duly qualified voters took place therein.

While the petition was pending before the COMELEC, the City Board of Canvassers proclaimed the winners of the elections in Quezon City, including the winning candidate for the post of vice mayor. On June 22, 1998, the COMELEC promulgated its challenged resolution dismissing the petition before it on the ground (1) that the allegations therein were not supported by sufficient evidence, and (2) that the grounds recited were not among the pre-proclamation issues set fourth in Section 17 of Republic Act No. 7166.[5] Hence, this petition. Alleging that COMELEC overstepped the limits of reasonable exercise of discretion in dismissing SPC No. 98-134, petitioner argues in the main that the electoral body failed to afford him basic due process, that is, the right to a hearing and presentation of evidence before ruling on his petition. He then proceeded to argue that the election returns themselves, as well as the minutes of the canvassing committee of the City Board of Canvassers were, by themselves, sufficient evidence to support the petition. Upon a meticulous study of the parties arguments together with the pertinent statutory provisions and jurisprudence, this Court is of the opinion that there is no compelling reason why we should withhold our imprimatur from the questioned resolution. At the outset, we notice that petitioner exhibits an ambivalent stand as to what exactly is the nature of the remedy he availed of at the time he initiated proceedings before the COMELEC in SPC No. 98-134. At the start, he anchors his initiatory petition under Section 6[6] of the Omnibus Election Code regarding failure of elections but he later builds his case as a pre-proclamation controversy which is covered by Sections 241-248 of the Omnibus Election Code, as amended by R.A. No. 7166.[7] In this respect, the rule is, what conjointly determine the nature of a pleading are the allegations therein made in good faith, the stage of the proceeding at which it is filed, and the primary objective of the party filing the same. In any case, petitioner nonetheless cannot succeed in either of the remedies he opted to pursue. Recently, in Matalam v. Commission on Elections,[8] we have already declared that a pre-proclamation controversy is not the same as an action for annulment of election results or declaration of failure of elections, founded as they are on different grounds. Under the pertinent codal provision of the Omnibus Election Code, there are only three (3) instances where a failure of elections may be declared, namely: (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account 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.[9] (Underscoring supplied) We have painstakingly examined petitioners petition before

the COMELEC but found nothing therein that could support an action for declaration of failure of elections. He never alleged at all that elections were either not held or suspended. Furthermore, petitioners claim of failure to elect stood as a bare conclusion bereft of any substantive support to describe just exactly how the failure to elect came about. With respect to pre-proclamation controversy, it is well to note that the scope of preproclamation controversy is only limited to the issues enumerated under Section 243[10] of the Omnibus Election Code, and the enumeration therein is restrictive and exclusive.[11] The reason underlying the delimitation both of substantive ground and procedure is the policy of the election law that pre-proclamation controversies should be summarily decided, consistent with the law's desire that the canvass and proclamation be delayed as little as possible.[12] That is why such questions which require more deliberate and necessarily longer consideration, are left for examination in the corresponding election protest.[13] However, with the proclamation of the winning candidate for the position contested, the question of whether the petition raised issues proper for a pre-proclamation controversy is already of no consequence since the well-entrench rule in such situation is that a preproclamation case before the COMELEC is no longer viable, the more appropriate remedies being a regular election protest or a petition for quo warranto.[14] We have carefully reviewed all recognized exceptions[15] to the foregoing rule but found nothing that could possibly apply to the instant case based on the recitations of the petition. What is more, in paragraph 3 of the COMELECs Omnibus Resolution No. 3049 (Omnibus Resolution on Pending Cases) dated June 29, 1998, it is clearly stated therein that All other pre-proclamation cases x x x shall be deemed terminated pursuant to Section 16, R. A. 7166.[16] (Underscoring supplied). Section 16 which is referred to in the aforecited omnibus resolution refers to the termination of pre-proclamation cases when the term of the office involved has already begun, which is precisely what obtains here. We are, of course, aware that petitioner cites the said omnibus resolution in maintaining that his petition is one of those cases which should have remained active pursuant to paragraph 4 thereof. That exception, however, operates only when what is involved is not a pre-proclamation controversy such as petitions for disqualification, failure of elections or analogous cases. But as we have earlier declared, his petition, though assuming to seek a declaration of failure of elections, is actually a case of pre-proclamation controversy and, hence, not falling within the ambit of the exception. In any case, that omnibus resolution would not have been applied in the first place because that was issued posterior to the date when the herein challenge resolution was promulgated which is June 22, 1998. There was no provision that such omnibus resolution should have retroactive effect. Finally, as to petitioners claim that he was deprived of his right to due process in that he was not allowed to present his evidence before the COMELEC to support his petition, the same must likewise fail. First, we note that his citation of Section 242 of the Omnibus Election Code as basis for his right to present evidence is misplaced. The phrase after due notice refers only to a situation where the COMELEC decides and, in fact, takes steps to either partially or totally suspend or annul the proclamation of any candidate-elect. Verba legis non est recedendum. From the words of the statute there should be no departure. The statutory provision cannot be expanded to embrace any other situation not contemplated therein such as the one at bar where the COMELEC is not taking any step to suspend or annul a proclamation.

Second, presentation of evidence before the COMELEC is not at all indispensable in order to satisfy the demands of due process. Under the amendment introduced by R.A. No. 7166, particularly Section 18 thereof, all that is required now is that the COMELEC shall dispose of pre-proclamation controversies on the basis of the records and evidence elevated to it by the board of canvassers. This is but in keeping with the policy of the law that cases of this nature should be summarily decided and the will of the electorate as reflected on the election returns be determined as speedily as possible. What exactly those records and evidence are upon which the COMELEC based its resolution and how they have been appreciated in respect of their sufficiency, are beyond this Courts scrutiny. But we have reason to believe, owing to the presumption of regularity of performance of official duty and the precept that factual findings of the COMELEC based on its assessments and duly supported by gathered evidence, are conclusive upon the court, that the COMELEC did arrive at its conclusion with due regard to the available evidence before it. That this is so can, in fact, be gleaned from petitioners own allegation and admission in his petition that the election returns themselves as well as the minutes of the Canvassing Committees and the City Board of Canvassers x x x are in the possession of the COMELEC.[17] He even cites paragraph (g), Section 20 of the Omnibus Election Code to validate such allegation. Hence, it is not really correct to say that the COMELEC acted without evidentiary basis at all or that petitioner was deprived of his right to due process. WHEREFORE, finding no grave abuse of discretion amounting to lack or excess of jurisdiction on the part of public respondent Commission on Elections (COMELEC), the instant petition is hereby DISMISSED. Consequently, the resolution of COMELEC in SPC No. 98-134 dated June 22, 1998 is AFFIRMED. No costs. SO ORDERED.

EN BANC

CARMELINDA C. BARRO, Petitioner,

G.R. No. 186201 Present: PUNO, C.J., * QUISUMBING,** CARPIO, CORONA, CARPIO MORALES, CHICO-NAZARIO,** VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, and ABAD, JJ. Promulgated:
October 9, 2009

versus

THE COMMISSION ON ELECTIONS (FIRST DIVISION); HON. DELIA P. NOELBERTULFO, in her capacity as Presiding Judge of the Municipal Trial Court, Palompon, Leyte; and ELPEDIO P. CONTINEDAS, JR., Respondents.

x-------------------------------------------------------------------------------------------------x DECISION

PERALTA, J.: This is a petition for certiorari[1] alleging that the First Division of the Commission on Elections (COMELEC) committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the Orders dated November 25, 2008 and January 9, 2009. The Order[2] dated November 25, 2008 dismissed petitioners appeal for failure to pay the appeal fee prescribed by the COMELEC

Rules of Procedure within the reglementary period. The Order[3] dated January 9, 2009 denied petitioners motion for reconsideration. The facts are as follows: Petitioner Carmelinda C. Barro and private respondent Elpedio P. Continedas, Jr. were candidates for Punong Barangay of Barangay Plaridel, Palompon,Leyte during the October 29, 2007 synchronized Barangay and Sangguniang Kabataan Elections. Petitioner garnered 150 votes, while respondent garnered 149 votes. The Barangay Board of Canvassers proclaimed petitioner as the duly elected Punong Barangay, winning by a margin of only one vote. On November 5, 2007, private respondent filed an election protest before the Municipal Trial Court of Palompon, Leyte (trial court), impugning the result of the canvass in two precincts of the barangay. After the revision of ballots, the trial court found that petitioner and respondent both garnered 151 votes. In held:
In sum, the Protestant is credited with three (3) votes and the Protestee with two (2) votes of the contested votes. The three (3) credited votes added to the 148 votes of the protestant equals 151 votes. The two (2) credited votes added to the 149 votes of the protestee equals 151 votes. The protestant and the protestee, therefore, received the same number of votes.

its

Decision[4] dated May

5,

2008,

the

trial

court

It appearing that the Protestant and the Protestee received the same number of votes for the position of Barangay Chairman of Brgy. Plaridel, Palompon, Leyte, there shall be a drawing of lots and the party favored by luck shall be proclaimed as the duly-elected Barangay Chairman of Barangay Plaridel, Palompon, Leyte.[5]

On May 13, 2008, petitioner filed a Notice of Appeal[6] with the trial court and she stated in her petition that she also paid the appeal fee required under Section 9, Rule 14 of the Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal and Barangay Officials (A.M. No. 07-4-15SC).[7] Thereafter, the records of the case were forwarded to the COMELEC. On November 25, 2008, the First Division of the COMELEC issued an Order dismissing petitioners appeal for failure to pay the appeal fee, thus:
Pursuant to Sections 3 and 4, Rule 40 of the COMELEC Rules of Procedure which provide for the payment of appeal fee in the amount of P3,000.00 within the period to file the notice of appeal, and Section 9 (a), Rule 22 of the same Rules, which provides that failure to pay the correct appeal fee is a ground for the dismissal of the appeal, the Commission (First Division) RESOLVED as it hereby RESOLVES to DISMISS the instant appeal for Protestee-AppeIlant's failure to pay the appeal fee as prescribed by the Comelec Rules of Procedure within the five (5)-day reglementary period.[8]

On December 15, 2008, petitioner filed a Motion for Reconsideration[9] of the Order dated November 25, 2008. On the same date, she also posted Postal Money Order Nos. A0820039317; B0810040373 and J1350301774 in the total sum of P3,200.00 payable to the Cash Division of the COMELEC to cover the appeal fee. Petitioners motion for reconsideration was denied by the First Division of the COMELEC in its Order dated January 9, 2009, thus:
Protestee-Appellant's "Motion for Reconsideration" filed thru registered mail on 15 December 2008 and received on 23 December 2008, seeking reconsideration of the Commission's (First Division)

Order dated 25 November 2008, is hereby DENIED for failure of the movant to pay the necessary motion fees under Sec. 7 (f), Rule 40 of the Comelec Rules of Procedure as amended by Comelec Resolution No. 02-0130. The Judicial Records Division-ECAD, this Commission, is hereby directed to return to the protestee-appellant the Postal Money Order Nos. A0820039317 in the amount of two thousand pesos (P2,000.00); B0810040373 in the amount of one thousand pesos (P1,000.00) and J1350301774 in the amount of two hundred pesos (P200.00) representing his belated payment of appeal fee.[10]

On February 19, 2009, petitioner filed this petition raising the following issues:
1. WHETHER OR NOT THE [FIRST DIVISION OF THE COMELEC] COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DISMISSING THE APPEAL. 2. WHETHER OR NOT THE [FIRST DIVISION OF THE COMELEC] COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DENYING THE MOTION FOR RECONSIDERATION FILED BY PETITIONER. 3. WHETHER OR NOT THE [FIRST DIVISION OF THE COMELEC] COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ACTING ON THE MOTION FOR RECONSIDERATION WITHOUT ELEVATING THE SAME TO THE COMELEC EN BANC.[11]

The first issue is whether or not the First Division of the COMELEC gravely abused its discretion in dismissing petitioners appeal. Grave abuse of discretion implies a capricious and whimsical exercise of judgment amounting to lack of jurisdiction or an arbitrary and despotic exercise of power because of passion or personal hostility.[12] The grave abuse of discretion

must be so patent and gross as to amount to an evasion or refusal to perform a duty enjoined by law.[13] The Court notes that in petitioners Notice of Appeal,[14] she manifested payment of the appeal fees and other lawful fees required for the appeal per Official Receipt Nos. 7719538 and 7719488. However, the receipts were not attached to the record of the case. In her Petition, petitioner stated that when she filed her Notice of Appeal on May 13, 2008, she also paid the appeal fee required under Section 9, Rule 14 of A.M. No. 07-4-15-SC.[15] In her Reply,[16] petitioner also stated that she relied on the provision of Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-SC,[17] which took effect on May 15, 2007, and that she believed in good faith that the said new Rules of Procedure repealed the COMELEC Rules. Based on petitioners pleadings and the fact that the trial court gave due course to petitioners appeal, it may be presumed that petitioner paid the appeal fee ofP1,000.00 to the trial court simultaneously with the filing of the Notice of Appeal, despite absence of the receipt showing payment of the appeal fee of P1,000.00. Petitioner contends in her Reply[18] that the recent case of Jerry B. Aguilar v. Commission on Elections, et al.,[19] applies to her case. The Court agrees with petitioner. In Aguilar, petitioner Aguilar won as barangay chairman in the October 29, 2007 barangay elections. An election protest was filed against him with the municipal trial court. The municipal trial court found that Aguilar lost by a margin of one vote; hence, his proclamation was annulled. On April 21, 2008, Aguilar filed a Notice of Appeal and paid the appeal fee of P1,000.00 to the municipal trial court in accordance with A.M. No. 07-4-15-SC. The First Division of the COMELEC dismissed his appeal pursuant to Section 9 (a), Rule 22 of the COMELEC Rules of Procedure for non-payment of the appeal fee of P3,000.00 as required in Sections 3 and 4, Rule 40 of the same Rules. His first and second motions for reconsideration were denied by the First Division of the COMELEC. He filed a petition forcertiorari with this Court, which held:
xxxx

With the promulgation of A.M. No. 07-4-15-SC, the previous rule that the appeal is perfected only upon the full payment of the appeal fee, now pegged at P3,200.00, to the COMELEC Cash Division within the period to appeal, as stated in the COMELEC Rules of Procedure, as amended, no longer applies.
It thus became necessary for the COMELEC to clarify the procedural rules on the payment of appeal fees. For this purpose, the COMELEC issued on July 15, 2008, Resolution No. 8486, which the Court takes judicial notice of. xxxx x x x The appeal to the COMELEC of the trial court's decision in election contests involving municipal and barangay officials is perfected upon the filing of the notice of appeal and the payment of the P1,000.00 appeal fee to the court that rendered the decision within the five-day reglementary period. The non-payment or the insufficient payment of the additional appeal fee of P3,200.00 to the COMELEC Cash Division, in accordance with Rule 40, Section 3 of the COMELEC Rules of Procedure, as amended, does not affect the perfection of the appeal and does not result in outright or ipso facto dismissal of the appeal. Following, Rule 22, Section 9 (a) of the COMELEC Rules, the appeal may be dismissed. And pursuant to Rule 40, Section 18 of the same rules, if the fees are not paid, the COMELEC may refuse to take action thereon until they are paid and may dismiss the action or the proceeding. In such a situation, the COMELEC is merely given the discretion to dismiss the appeal or not. Accordingly, in the instant case, the COMELEC First Division, may dismiss petitioner's appeal, as it in fact did, for petitioner's failure to pay the P3,200.00 appeal fee. Be that as it may, the Court still finds that the COMELEC First Division gravely abused its discretion in issuing the order dismissing petitioner's appeal. The Court notes that the notice of appeal and the P1,000.00 appeal fee were, respectively, filed and paid with the MTC of Kapatagan, Lanao del Norte on April 21, 2008. On that date, the petitioner's appeal was deemed perfected. COMELEC issued Resolution No. 8486 clarifying the rule on the payment of appeal fees only on July 15, 2008, or almost three months after the appeal was perfected. Yet, on July 31, 2008, or barely two weeks after the issuance of Resolution No. 8486, the COMELEC First Division dismissed petitioner's appeal for non-payment to the COMELEC Cash Division of the additional P3,200.00 appeal fee. Considering that petitioner filed his appeal months before the clarificatory resolution on appeal fees, petitioner's appeal should not be unjustly prejudiced by COMELEC Resolution No. 8486. Fairness and prudence dictate that the COMELEC First Division should have first directed petitioner to pay the additional appeal fee in accordance with the clarificatory resolution, and if the

latter should refuse to comply, then, and only then, dismiss the appeal. Instead, the COMELEC First Division hastily dismissed the appeal on the strength of the recently promulgated clarificatory resolution which had taken effect only a few days earlier. This unseemly haste is an invitation to outrage.

In this case, the appeal to the COMELEC was perfected when petitioner filed her Notice of Appeal and paid the appeal fee of P1,000.00 on May 13, 2008, which was two months before the COMELEC issued Resolution No. 8486,[20] clarifying the rule on the payment of appeal fees. As stated in Aguilar, fairness and prudence dictate that the First Division of the COMELEC should have first directed petitioner to pay the additional appeal fee of P3,200.00 in accordance with the clarificatory resolution; and if petitioner refused to comply, only then should the appeal be dismissed. The First Division of the COMELEC should have been more cautious in dismissing petitioners appeal on the mere technicality of non-payment of the additional appeal fee of P3,200.00 given the public interest involved in election cases.[21] In view of the foregoing, the Court finds that the First Division of the COMELEC gravely abused its discretion in issuing the Order dated November 25, 2008, dismissing petitioners appeal. The case is remanded to the First Division of the COMELEC for disposition of the appeal in accordance with this decision, subject to the presentation by petitioner of the receipt evidencing payment of the appeal fee of P1,000.00 as required under Section 9, Rule 14 of A. M. No. 07-415-SC. It must be stated, however, that for notices of appeal filed after the promulgation on July 27, 2009 of Divinagracia v. Commission on Elections,[22] errors in the matter of non-payment or incomplete payment of the two appeal fees in election cases are no longer excusable. The second and third issues shall be discussed jointly. Petitioner contends that the First Division of the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in acting on the motion for reconsideration without elevating the same to the COMELEC en banc, and in denying the motion for reconsideration. The contention is meritorious.

It is settled that under Section 7, Article IX-A of the Constitution,[23] what may be brought to this Court on certiorari is the decision, order or ruling of the COMELEC en banc. However, this rule should not apply when a division of the COMELEC arrogates unto itself and deprives the en banc of the authority to rule on a motion for reconsideration, like in this case.[24] Section 3, Article IX-C of the Constitution provides for the procedure for the resolution of election cases by the COMELEC, thus:
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 Commissionen banc.

The constitutional provision is reflected in Sections 5 and 6, Rule 19 of the COMELEC Rules of Procedure as follows:
Sec. 5. How Motion for Reconsideration Disposed of. Upon the filing of a motion to reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned shall, within twenty-four (24) hours from the filing thereof, notify the Presiding Commissioner. The latter shall within two (2) days thereafter certify the case to the Commission en banc. Sec. 6. Duty of Clerk of Court of Commission to Calendar Motion for Reconsideration. The Clerk of Court concerned shall calendar the motion for reconsideration for the resolution of the Commission en banc within ten (10) days from the certification thereof.

In this case, the First Division of the COMELEC violated the cited provisions of the Constitution and the COMELEC Rules of Procedure when it resolved petitioner's motion for reconsideration of its final Order dated November 25, 2008, which dismissed petitioners appeal. By arrogating unto itself a power constitutionally lodged in the Commission en banc, the First Division of the COMELEC exercised judgment in excess of, or without, jurisdiction.[25] Hence, the Order issued by the First Division of the COMELEC dated January 9, 2009, denying petitioners motion for reconsideration, is null and void. Petitioner stated in her Reply[26] that on April 1, 2009, the First Division of the COMELEC issued an Order declaring the Order dated November 25, 2008 as final and executory, and ordering the issuance of an Entry of Judgment. On April

1, 2009, an Entry of Judgment was issued by the Electoral Contests Adjudication Department. WHEREFORE, the petition is GRANTED. The Orders dated November 25, 2008 and January 9, 2009 by the First Division of the COMELEC, and the Entry of Judgment issued on April 1, 2009 by the Electoral Contests Adjudication Department are ANNULLED and SET ASIDE. The case is REMANDED to the First Division of the Commission on Elections for disposition in accordance with this Decision. No costs. SO ORDERED.

EN BANC
RODANTE MARCOLETA, SERGIO MANZANA, RENATO CABLING AND MIGUELITO BAJAS, Petitioners, - versus COMMISSION ON ELECTIONS AND DIOGENES OSABEL, Respondents. x- - - - - - - - - - - - - - - - - - - - - - - - - x ALAGAD PARTY-LIST, G.R. No. 181726 represented by DIOGENES S. OSABEL, president, Petitioner, Present: - versus PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, and BERSAMIN, JJ. Promulgated: April 24, 2009 G.R. No. 181377

COMMISSION ON ELECTIONS, ALBERTO M. MALVAR, RODANTE D. MARCOLETA, SERGIO C. MANZANA, RENATO S. CABLING AND MIGUELITO C. BAJAS, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO MORALES, J.: When the party-list group Alagad first won a seat in the House of Representatives in 1998, Diogenes S. Osabel (Osabel) sat as the partys representative in Congress. In 2004, when the party again won one seat, Rodante D. Marcoleta (Marcoleta) sat as Alagads representative. Due to infighting within Alagads ranks, however, Osabel and Marcoleta parted ways, each one claiming to represent the partys constituency. For the 2007 National and Local Elections, the warring factions of Osabel and Marcoleta each filed a separate list of nominees for Alagad at the Commission on Elections (Comelec). With Alagad again winning a part-list seat in the House of Representatives, the Marcoleta and Osabel blocs contested the right to represent the party in the 14thCongress.[1] Osabel, purportedly the bona fide president of Alagad, sought the cancellation of the certificates of nomination of the Marcoleta group.[2] By Omnibus Resolution[3] of July 18, 2007, the Comelecs First Division, then composed of Commissioners Resurreccion Borra and Romeo Brawner, resolved the dispute in favor of Osabel, disposing as follows:
WHEREFORE, in view of the foregoing, the Commission (First Division) GRANTS the Petition in SPA No. 07-020 finding it imbued with merit. The Certificate of Nomination filed by ALAGAD represented by ALBERTO M. MALVAR on January 15, 2007 and subject of SPA No. 07-020 is hereby SET ASIDE. The Manifestation of Intent to Participate in the Party-List System of Representation submitted by ALAGAD represented by its legitimate president DIOGENES S. OSABEL on January 25, 2007, and subject of SPP No. 07-023 is hereby ADMITTED. The Manifestation of

Intent to Participate in the Party-List System of Representation submitted by ALAGAD represented by ALBERTO M. MALVAR on January 15, 2007 and subject of SPP No. 07003 is DENIED DUE COURSE. (Emphasis in the original)

The controversy was then elevated by the Marcoleta group to the Comelec En Banc which, by Resolution[4] of November 6, 2007, reversed the First Divisions Omnibus Resolution and reinstated the certificates of nomination of the Marcoleta group. In the voting, however, there were only two (2) commissioners who concurred in the Resolution while three (3) commissioners dissented.[5] For thus failing to muster the required majority voting, the Comelec En Banc ordered a rehearing of the controversy on November 20, 2007.[6] From the records,[7] it appears that what was taken up during the scheduled November 20, 2007 hearing was the issue of whether the [Comelec] could hear these cases on the rehearing aspect.[8] The First Divisions Omnibus Resolution in favor of Osabel was eventually affirmed by the Comelec En Banc by Resolution of February 5, 2008, viz:[9]
During said rehearing, both parties agreed to file their simultaneous memoranda and thereafter to submit these cases for resolution. The Commission received their respective memoranda on December 3, 2007. (Emphasis and underscoring supplied) x x x x. It appearing that the votes of the members of the Commission are still the same, or the necessary majority cannot be had, pursuant to Sec. 6, Rule 18, Comelec Rules of Procedure which reads: x x x x.

the Resolution of the First Division is [10] (Emphasis in the original; underscoring hereby AFFIRMED. supplied)

On February 12, 2008, Marcoleta filed an ex parte motion to rectify[11] the Comelec En Banc February 5, 2008 Resolution, contending that it inadvertently therein mentioned that there was a rehearing undertaken on November 20, 2007 when in fact there was none as the matter taken up on said date actually delved on the propriety of a rehearing; and that no memorandum from either of the parties was submitted on December 3, 2007. By Order of February 12, 2008,[12] Commissioner Romeo Brawner, acting in his capacity as acting chairman of the Comelec, suspended until further orders the implementation of the Comelec First Division February 5, 2008 Omnibus Resolution. Subsequently, by Order of February 26, 2008,[13] the Comelec En Banc acknowledged that no rehearing had yet been undertaken and reiterated the earlier order of suspension of the February 5, 2009 First Division Omnibus Resolution. The Comelec En Banc, also therein resolving the prejudicial question raised by Osabel on whether there was a necessity of a rehearing, held in the affirmative, reasoning that:
x x x x. The voting in the resolution disposing of the motion for reconsideration on the July 18, 2007 resolution of the First Division which yielded the 2-3 voting resulted in the failure to obtain the required number of votes for the pronouncement of a decision. Hence, a rehearing should be conducted x x x x.

A rehearing of the controversy between the parties was thereupon calendared for March 4, 2008. From the records, it appears that the scheduled rehearing did not push through in view of the filing in the interim of the present petitions by the contending parties. In the above-captioned G.R. No. 181377 (the petition filed by the Marcoleta group on February 7, 2008), petitioners fault the Comelec En Banc as follows:
a. The COMELEC en banc committed grave abuse of discretion amounting to lack or excess of jurisdiction when it issued the February 5, 2008 Order without the benefit of a rehearing, in violation of Section 6, Rule 18 of the COMELEC Rules of Procedure; b. The COMELEC en banc committed grave abuse of discretion amounting to lack or excess of jurisdiction when it affirmed the ruling of its First Division that Private Respondent Osabel did not resign his post as President of Alagad; c. The COMELEC en banc committed grave abuse of discretion amounting to lack or excess of jurisdiction when it gave credence to the Minutes submitted by the Private Respondent, even though it was not approved by the Secretary-General of the Party; d. The COMELEC en banc committed grave abuse of discretion amounting to lack or excess of jurisdiction when it did not consider the provision in the Partys Constitution and By-Laws that limits the tenure of officers and members of the Executive Committee to three (3) years.[14]

Meanwhile, G.R. No. 181726 filed on March 4, 2008 by Alagad, represented by Osabel, assails the suspension of the effects of the Comelec First Division February 5, 2008 Resolution as well as the February 26, 2008 Order that called for a rehearing.[15] Alagad asserts that the Comelec should not have suspended the effects of the February 5, 2008 Resolution when, on its face, the ex parte motion to rectify filed by Marcoleta suffered from lack of proof of service on the adverse party and the

requisite notice of hearing; instead, an order to comment on the motion should have been the proper recourse of the Comelec.[16] In further arguing against the rehearing order of the Comelec, petitioner Alagad invites the Courts attention to the earlier mentioned En Banc Resolution of November 6, 2007 (reinstating the certificates of nomination of the Marcoleta group) where it appears that the Osabel group secured a majority vote of the quorum: three (3) against two (2) in a quorum of five commissioners, in spite the fact that Osabel is not the movant, and hence, not the party required to secure a majority to reverse the First Division Omnibus Resolution.[17] By Resolution of March 11, 2008, the Court consolidated both petitions.[18] G.R. No. 181377 was filed on February 7, 2008 by the Marcoleta group before it filed on February 12, 2008 before the Comelec the ex parte motion to rectify. In light of the filing of said motion as well as the positive action of the Comelec in its Order of February 26, 2008 for a rehearing of the controversy, the petition had been rendered moot and academic. More importantly, the extraordinary writ of certiorari, cannot be invoked when there is a plain, adequate and speedy remedy in the ordinary course of law,[19] as shown by petitioners recourse. The Court now proceeds to resolve G.R. No. 181726 filed by Alagad. The twin issues to be determined are whether the Comelec En Banc committed grave abuse of discretion in ordering a rehearing of the controversy; and in suspending the implementation of the Order of February 5, 2008 for lack of rehearing. The petition fails. While at first impression, the November 6, 2007 Resolution of the Comelec En Banc seems to have affirmed the First Divisions ruling, the said Resolution merely reflected the manner of voting of the Comelec members. From the 2-3 voting, it is readily discerned that the Comelec En Banc cannot overturn the First Division on mere two assenting votes. On the other hand, the same situation obtains in the case of

the dissenters, there being a shortage of one vote to sustain the First Divisions findings. To break this legal stalemate, Section 6, Rule 18 of the Comelec Rules of Procedure provides that:
Sec. 6. Procedure if Opinion is Equally Divided.When the Commission en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall be reheard, and if on rehearing no decision is reached, the action or proceeding shall be dismissed if originally commenced in the Commission; in appealed cases, the judgment or order appealed from shall stand affirmed; and in all incidental matters, the petition or motion shall be denied. (Emphasis, italics and underscoring supplied)

Majority, in this case, means a vote of four members of the Comelec. The Court in Estrella v. Comelec[20] pronounced that Section 5 (a)[21] of Rule 3 of the Comelec Rules of Procedure and Section 7 of Article IX-A[22] of the Constitution require that a majority vote of all the members of the Comelec, and not only those who participated and took part in the deliberations, is necessary for the pronouncement of a decision, resolution, order or ruling. Alagads reasoning that a rehearing is unnecessary since it garnered a majority vote of the quorum does not thus impress. The Comelec, despite the obvious inclination of three commissioners to affirm the Resolution of the First Division, cannot do away with a rehearing since its Rules clearly provide for such a proceeding for the body to have a solicitous review of the controversy before it. A rehearing clearly presupposes the participation of the opposing parties for the purpose of presenting additional evidence, if any, and further clarifying and amplifying their arguments.[23] To reiterate, neither the assenters nor dissenters can claim a majority in the En Banc Resolution of November 6, 2007. The Resolution served no more than a record of votes, lacking in legal effect despite its pronouncement of reversal

of the First Division Resolution. Accordingly, the Comelec did not commit any grave abuse of discretion in ordering a rehearing. The propriety of a rehearing now resolved, the issue of whether the Comelec committed grave abuse of discretion in suspending the effects of its En Banc Order of February 5, 2008 for lack of a rehearing comes to the fore. From the records as well as the admission of inadvertence on the part of the Comelec, there is likewise nothing gravely abusive of the Comelecs assailed action. A certification[24] from the Office of the Clerk of the Commission itself bolsters the assertion that the Comelec committed an evident oversight, thus:
x x x [T]here is no calendar of hearing with respect to these particular cases between November 21, 2007 and February 5, 2008.

For the most part, the Comelec was well within its authority to order a rehearing, it having the inherent power to amend or control its processes and orders before these become final and executory.[25] It can even proceed to issue an order motu proprio to reconsider, recall or set aside an earlier resolution which is still under its control.[26] The Comelecs own Rules of Procedure authorize the body to amend and control its processes and orders so as to make them conformable to law and justice,[27] and even to suspend said Rules or any portion thereof in the interest of justice and in order to obtain speedy disposition of all matters pending before the Commission.[28] Thus, the supposed lack of proof of service on the adverse party and lack of notice of hearing of Marcoletas ex parte motion to rectify deserve little consideration in invalidating the Order of February 12, 2008. Moreover, that Alagad even moved to execute the Comelecs February 5, 2008 Order on the same day the ex parte motion to rectify was filed (February 12, 2008)[29] all the more justified the Comelecs action.

The Comelec, confronted with a glaring procedural lapse, lost no time in rectifying its action by suspending the effects of an earlier resolution and scheduling a mandatory rehearing. To be sure, this negates any indication of grave abuse of discretion on its part in order to correct a lapse. WHEREFORE, G.R. No. 181377 is DISMISSED for being moot. G.R. No. 181726 is likewise DISMISSED for lack of merit. Let the case be REMANDED to the Comelec En Banc for it to proceed with utmost dispatch with its intended rehearing and render the appropriate decision on the case at the earliest opportunity. No costs. SO ORDERED.

[G.R. No. 151914. July 31, 2002]

TEODULO M. COQUILLA, petitioner, vs. THE HON. COMMISSION ON ELECTIONS and MR. NEIL M. ALVAREZ, respondents. DECISION
MENDOZA, J.:

This is a petition for certiorari to set aside the resolution,[1] dated July 19, 2001, of the Second Division of the Commission on Elections (COMELEC), ordering the cancellation of the certificate of candidacy of petitioner Teodulo M. Coquilla for the position of mayor of Oras, Eastern Samar in the May 14, 2001 elections and the order, dated January 30, 2002, of the COMELEC en banc denying petitioners motion for reconsideration. The facts are as follows: Petitioner Coquilla was born on February 17, 1938 of Filipino parents in Oras, Eastern Samar. He grew up and resided there until 1965, when he joined the United States Navy. He was subsequently naturalized as a U.S. citizen.[2] From 1970 to 1973, petitioner thrice visited the Philippines while on leave from the U.S. Navy.[3] Otherwise, even after his retirement from the U.S. Navy in 1985, he remained in the United States. On October 15, 1998, petitioner came to the Philippines and took out a residence certificate, although he continued making several trips to the United States, the last of which took place on July 6, 2000 and lasted until August 5, 2000.[4] Subsequently, petitioner applied for repatriation under R.A. No. 8171[5] to the Special Committee on Naturalization. His application was approved on November 7, 2000, and, on November 10, 2000, he took his oath as a citizen of the Philippines. Petitioner was issued Certificate of Repatriation No. 000737 on November 10, 2000 and Bureau of Immigration Identification Certificate No. 115123 on November 13, 2000. On November 21, 2000, petitioner applied for registration as a voter of Butnga, Oras, Eastern Samar. His application was approved by the Election Registration Board on January 12, 2001.[6] On February 27, 2001, he filed his certificate of candidacy stating therein that he had been a resident of Oras, Eastern Samar for two (2) years.[7] On March 5, 2001, respondent Neil M. Alvarez, who was the incumbent mayor of Oras and who was running for reelection, sought the cancellation of petitioners certificate of candidacy on the ground that the latter had made a material misrepresentation in his certificate of candidacy by stating that he had been a resident of Oras for two years when in truth he had resided therein for only about six months since November 10, 2000, when he took his oath as a citizen of the Philippines. The COMELEC was unable to render judgment on the case before the elections on May 14, 2001. Meanwhile, petitioner was voted for and received the highest number of votes (6,131) against private respondents 5,752 votes, or a margin of 379 votes. On

May 17, 2001, petitioner was proclaimed mayor of Oras by the Municipal Board of Canvassers.[8] He subsequently took his oath of office. On July 19, 2001, the Second Division of the COMELEC granted private respondents petition and ordered the cancellation of petitioners certificate of candidacy on the basis of the following findings:

Respondents frequent or regular trips to the Philippines and stay in Oras, Eastern Samar after his retirement from the U.S. Navy in 1985 cannot be considered as a waiver of his status as a permanent resident or immigrant . . . of the U.S.A. prior to November 10, 2000 as would qualify him to acquire the status of residency for purposes of compliance with the one-year residency requirement of Section 39(a) of the Local Government Code of 1991 in relation to Sections 65 and 68 of the Omnibus Election Code. The one (1) year residency requirement contemplates of the actual residence of a Filipino citizen in the constituency where he seeks to be elected. All things considered, the number of years he claimed to have resided or stayed in Oras, Eastern Samar since 1985 as an American citizen and permanent resident of the U.S.A. before November 10, 2000 when he reacquired his Philippine citizenship by [repatriation] cannot be added to his actual residence thereat after November 10, 2000 until May 14, 2001 to cure his deficiency in days, months, and year to allow or render him eligible to run for an elective office in the Philippines. Under such circumstances, by whatever formula of computation used, respondent is short of the one-year residence requirement before the May 14, 2001 elections.
[9]

Petitioner filed a motion for reconsideration, but his motion was denied by the COMELEC en banc on January 30, 2002. Hence this petition.
I.

Two questions must first be resolved before considering the merits of this case: (a) whether the 30-day period for appealing the resolution of the COMELEC was suspended by the filing of a motion for reconsideration by petitioner and (b) whether the COMELEC retained jurisdiction to decide this case notwithstanding the proclamation of petitioner. A. With respect to the first question, private respondent contends that the petition in this case should be dismissed because it was filed late; that the COMELEC en banc had denied petitioners motion for reconsideration for being pro forma; and that, pursuant to Rule 19, 4 of the COMELEC Rules of Procedure, the said motion did not suspend the running of the 30-day period for filing this petition. He points out that petitioner received a copy of the resolution, dated July 19, 2001, of the COMELECs Second Division on July 28, 2001, so that he had only until August 27, 2001 within

which to file this petition. Since the petition in this case was filed on February 11, 2002, the same should be considered as having been filed late and should be dismissed. Private respondents contention has no merit. Rule 19 of the COMELEC Rules of Procedure provides in pertinent parts:

Sec. 2. Period for Filing Motions for Reconsideration. A motion to reconsider a decision, resolution, order, or ruling of a Division shall be filed within five days from the promulgation thereof. Such motion, if not pro-forma, suspends the execution for implementation of the decision, resolution, order, or ruling. Sec. 4. Effect of Motion for Reconsideration on Period to Appeal. A motion to reconsider a decision, resolution, order, or ruling, when not pro-forma, suspends the running of the period to elevate the matter to the Supreme Court.
The five-day period for filing a motion for reconsideration under Rule 19, 2 should be counted from the receipt of the decision, resolution, order, or ruling of the COMELEC Division.[10] In this case, petitioner received a copy of the resolution of July 19, 2001 of the COMELECs Second Division on July 28, 2001. Five days later, on August 2, 2001, he filed his motion for reconsideration. On February 6, 2002, he received a copy of the order, dated January 30, 2002, of the COMELEC en banc denying his motion for reconsideration. Five days later, on February 11, 2002, he filed this petition for certiorari. There is no question, therefore, that petitioners motion for reconsideration of the resolution of the COMELEC Second Division, as well as his petition for certiorari to set aside of the order of the COMELEC en banc, was filed within the period provided for in Rule 19, 2 of the COMELEC Rules of Procedure and in Art. IX(A), 7 of the Constitution. It is contended, however, that petitioners motion for reconsideration before the COMELEC en banc did not suspend the running of the period for filing this petition because the motion was pro forma and, consequently, this petition should have been filed on or before August 27, 2001. It was actually filed, however, only on February 11, 2002. Private respondent cites the finding of the COMELEC en banc that

An incisive examination of the allegations in the Motion for Reconsideration shows that the same [are] a mere rehash of his averments contained in his Verified Answer andMemorandum. Neither did respondent raise new matters that would sufficiently warrant a reversal of the assailed resolution of the Second Division. This makes the said Motion pro forma.
[11]

We do not think this contention is correct. The motion for reconsideration was not pro forma and its filing did suspend the period for filing the petition for certiorari in this case. The mere reiteration in a motion for reconsideration of the issues raised by the

parties and passed upon by the court does not make a motion pro forma; otherwise, the movants remedy would not be a reconsideration of the decision but a new trial or some other remedy.[12] But, as we have held in another case:[13]

Among the ends to which a motion for reconsideration is addressed, one is precisely to convince the court that its ruling is erroneous and improper, contrary to the law or the evidence; and in doing so, the movant has to dwell of necessity upon the issues passed upon by the court. If a motion for reconsideration may not discuss these issues, the consequence would be that after a decision is rendered, the losing party would be confined to filing only motions for reopening and new trial.
Indeed, in the cases where a motion for reconsideration was held to be pro forma, the motion was so held because (1) it was a second motion for reconsideration,[14] or (2) it did not comply with the rule that the motion must specify the findings and conclusions alleged to be contrary to law or not supported by the evidence,[15] or (3) it failed to substantiate the alleged errors,[16] or (4) it merely alleged that the decision in question was contrary to law,[17] or (5) the adverse party was not given notice thereof.[18] The 16-page motion for reconsideration filed by petitioner in the COMELEC en banc suffers from none of the foregoing defects, and it was error for the COMELEC en banc to rule that petitioners motion for reconsideration was pro forma because the allegations raised therein are a mere rehash of his earlier pleadings or did not raise new matters. Hence, the filing of the motion suspended the running of the 30-day period to file the petition in this case, which, as earlier shown, was done within the reglementary period provided by law. B. As stated before, the COMELEC failed to resolve private respondents petition for cancellation of petitioners certificate of candidacy before the elections on May 14, 2001. In the meantime, the votes were canvassed and petitioner was proclaimed elected with a margin of 379 votes over private respondent. Did the COMELEC thereby lose authority to act on the petition filed by private respondent? R.A. No. 6646 provides:

SECTION 6. Effect 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. (Emphasis added)

SECTION 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. The procedure hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881.
The rule then is that candidates who are disqualified by final judgment before the election shall not be voted for and the votes cast for them shall not be counted. But those against whom no final judgment of disqualification had been rendered may be voted for and proclaimed, unless, on motion of the complainant, the COMELEC suspends their proclamation because the grounds for their disqualification or cancellation of their certificates of candidacy are strong. Meanwhile, the proceedings for disqualification of candidates or for the cancellation or denial of certificates of candidacy, which have been begun before the elections, should continue even after such elections and proclamation of the winners. In Abella v. COMELEC[19] and Salcedo II v. COMELEC,[20] the candidates whose certificates of candidacy were the subject of petitions for cancellation were voted for and, having received the highest number of votes, were duly proclaimed winners. This Court, in the first case, affirmed and, in the second, reversed the decisions of the COMELEC rendered after the proclamation of candidates, not on the ground that the latter had been divested of jurisdiction upon the candidates proclamation but on the merits.
II.

On the merits, the question is whether petitioner had been a resident of Oras, Eastern Samar at least one (1) year before the elections held on May 14, 2001 as he represented in his certificate of candidacy. We find that he had not. First, 39(a) of the Local Government Code (R.A No. 7160) provides:

Qualifications. - (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. (Emphasis added)
The term residence is to be understood not in its common acceptation as referring to dwelling or habitation,[21] but rather to domicile or legal residence,[22] that is, the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi).[23] A domicile of origin is acquired by every person at birth. It is usually the place where the childs parents reside and continues until the same is abandoned by acquisition of new domicile (domicile of choice).[24] In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S. citizen after enlisting in the U.S. Navy in 1965. From then on and until November 10,

2000, when he reacquired Philippine citizenship, petitioner was an alien without any right to reside in the Philippines save as our immigration laws may have allowed him to stay as a visitor or as a resident alien. Indeed, residence in the United States is a requirement for naturalization as a U.S. citizen. Title 8, 1427(a) of the United States Code provides:

Requirements of naturalization . Residence (a) No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his petition has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, and (3) during all the period referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States. (Emphasis added)
In Caasi v. Court of Appeals,[25] this Court ruled that immigration to the United States by virtue of a greencard, which entitles one to reside permanently in that country, constitutes abandonment of domicile in the Philippines. With more reason then does naturalization in a foreign country result in an abandonment of domicile in the Philippines. Nor can petitioner contend that he was compelled to adopt American citizenship only by reason of his service in the U.S. armed forces.[26] It is noteworthy that petitioner was repatriated not under R.A. No. 2630, which applies to the repatriation of those who lost their Philippine citizenship by accepting commission in the Armed Forces of the United States, but under R.A. No. 8171, which, as earlier mentioned, provides for the repatriation of, among others, natural-born Filipinos who lost their citizenship on account of political or economic necessity. In any event, the fact is that, by having been naturalized abroad, he lost his Philippine citizenship and with it his residence in the Philippines. Until his reacquisition of Philippine citizenship on November 10, 2000, petitioner did not reacquire his legal residence in this country. Second, it is not true, as petitioner contends, that he reestablished residence in this country in 1998 when he came back to prepare for the mayoralty elections of Oras by securing a Community Tax Certificate in that year and by constantly declaring to his townmates of his intention to seek repatriation and run for mayor in the May 14, 2001 elections.[27] The status of being an alien and a non-resident can be waived either

separately, when one acquires the status of a resident alien before acquiring Philippine citizenship, or at the same time when one acquires Philippine citizenship. As an alien, an individual may obtain an immigrant visa under 13[28] of the Philippine Immigration Act of 1948 and an Immigrant Certificate of Residence (ICR)[29] and thus waive his status as a non-resident. On the other hand, he may acquire Philippine citizenship by naturalization under C.A. No. 473, as amended, or, if he is a former Philippine national, he may reacquire Philippine citizenship by repatriation or by an act of Congress,[30] in which case he waives not only his status as an alien but also his status as a nonresident alien. In the case at bar, the only evidence of petitioners status when he entered the country on October 15, 1998, December 20, 1998, October 16, 1999, and June 23, 2000 is the statement Philippine Immigration [] Balikbayan in his 1998-2008 U.S. passport. As for his entry on August 5, 2000, the stamp bore the added inscription good for one year stay.[31] Under 2 of R.A. No. 6768 (An Act Instituting a Balikbayan Program), the term balikbayan includes a former Filipino citizen who had been naturalized in a foreign country and comes or returns to the Philippines and, if so, he is entitled, among others, to a visa-free entry to the Philippines for a period of one (1) year (3(c)). It would appear then that when petitioner entered the country on the dates in question, he did so as a visa-free balikbayan visitor whose stay as such was valid for one year only. Hence, petitioner can only be held to have waived his status as an alien and as a non-resident only on November 10, 2000 upon taking his oath as a citizen of the Philippines under R.A. No. 8171.[32] He lacked the requisite residency to qualify him for the mayorship of Oras, Eastern, Samar. Petitioner invokes the ruling in Frivaldo v. Commission on Elections[33] in support of his contention that the residency requirement in 39(a) of the Local Government Code includes the residency of one who is not a citizen of the Philippines. Residency, however, was not an issue in that case and this Court did not make any ruling on the issue now at bar. The question in Frivaldo was whether petitioner, who took his oath of repatriation on the same day that his term as governor of Sorsogon began on June 30, 1995, complied with the citizenship requirement under 39(a). It was held that he had, because citizenship may be possessed even on the day the candidate assumes office. But in the case of residency, as already noted, 39(a) of the Local Government Code requires that the candidate must have been a resident of the municipality for at least one (1) year immediately preceding the day of the election. Nor can petitioner invoke this Courts ruling in Bengzon III v. House of Representatives Electoral Tribunal.[34] What the Court held in that case was that, upon repatriation, a former natural-born Filipino is deemed to have recovered his original status as a natural-born citizen. Third, petitioner nonetheless says that his registration as a voter of Butnga, Oras, Eastern Samar in January 2001 is conclusive of his residency as a candidate because 117 of the Omnibus Election Code requires that a voter must have resided in the Philippines for at least one year and in the city or municipality wherein he proposes to vote for at least six months immediately preceding the election. As held in Nuval v.

Guray,[35] however, registration as a voter does not bar the filing of a subsequent case questioning a candidates lack of residency. Petitioners invocation of the liberal interpretation of election laws cannot avail him any. As held in Aquino v. Commission on Elections:[36]

A democratic government is necessarily a government of laws. In a republican government those laws are themselves ordained by the people. Through their representatives, they dictate the qualifications necessary for service in government positions. And as petitioner clearly lacks one of the essential qualifications for running for membership in the House of Representatives, not even the will of a majority or plurality of the voters of the Second District of Makati City would substitute for a requirement mandated by the fundamental law itself.
Fourth, petitioner was not denied due process because the COMELEC failed to act on his motion to be allowed to present evidence. Under 5(d), in relation to 7, of R.A. No. 6646 (Electoral Reforms Law of 1987), proceedings for denial or cancellation of a certificate of candidacy are summary in nature. The holding of a formal hearing is thus not de rigeur. In any event, petitioner cannot claim denial of the right to be heard since he filed a Verified Answer, a Memorandum and a Manifestation, all dated March 19, 2001, before the COMELEC in which he submitted documents relied by him in this petition, which, contrary to petitioners claim, are complete and intact in the records.
III.

The statement in petitioners certificate of candidacy that he had been a resident of Oras, Eastern Samar for two years at the time he filed such certificate is not true. The question is whether the COMELEC was justified in ordering the cancellation of his certificate of candidacy for this reason. We hold that it was. Petitioner made a false representation of a material fact in his certificate of candidacy, thus rendering such certificate liable to cancellation. The Omnibus Election Code provides:

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 sector 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. SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election.
Indeed, it has been held that a candidates statement in her certificate of candidacy for the position of governor of Leyte that she was a resident of Kananga, Leyte when this was not so[37] or that the candidate was a natural-born Filipino when in fact he had become an Australian citizen[38] constitutes a ground for the cancellation of a certificate of candidacy. On the other hand, we held in Salcedo II v. COMELEC[39] that a candidate who used her husbands family name even though their marriage was void was not guilty of misrepresentation concerning a material fact. In the case at bar, what is involved is a false statement concerning a candidates qualification for an office for which he filed the certificate of candidacy. This is a misrepresentation of a material fact justifying the cancellation of petitioners certificate of candidacy. The cancellation of petitioners certificate of candidacy in this case is thus fully justified. WHEREFORE, the petition is DISMISSED and the resolution of the Second Division of the Commission on Elections, dated July 19, 2001, and the order, dated January 30, 2002 of the Commission on Elections en banc are AFFIRMED. SO ORDERED.