CASE DIGEST : CORDORA VS TAMBUNTING

G.R. No. 176947               February 19, 2009

GAUDENCIO M. CORDORA, Petitioner, 

vs.

COMMISSION ON ELECTIONS and GUSTAVO S. TAMBUNTING, Respondents.

FACTS : In his complaint affidavit filed before the COMELEC Law Department, Cordora asserted that Tambunting made false assertions. Cordora stated that Tambunting was not eligible to run for local public office because Tambunting lacked the required citizenship and residency requirements.

To disprove Tambunting’s claim of being a natural-born Filipino citizen, Cordora presented a certification from the Bureau of Immigration which stated that, in two instances, Tambunting claimed that he is an American: upon arrival in the Philippines on 16 December 2000 and upon departure from the Philippines on 17 June 2001. According to Cordora, these travel dates confirmed that Tambunting acquired American citizenship through naturalization in Honolulu, Hawaii on 2 December 2000. Cordora concluded:

The COMELEC Law Department recommended the dismissal of Cordora’s complaint against Tambunting because Cordora failed to substantiate his charges against Tambunting. Cordora’s reliance on the certification of the Bureau of Immigration that Tambunting traveled on an American passport is not sufficient to prove that Tambunting is an American citizen.

The COMELEC En Banc affirmed the findings and the resolution of the COMELEC Law Department. The COMELEC En Banc was convinced that Cordora failed to support his accusation against Tambunting by sufficient and convincing evidence.

Cordora filed a motion for reconsideration which raised the same grounds and the same arguments in his complaint. In its Resolution promulgated on 20 February 2007, the COMELEC En Banc dismissed Cordora’s motion for reconsideration for lack of merit.

ISSUE : WON there is Probable Cause to Hold Tambunting for Trial for Having Committed an Election Offense

HELD : Probable cause constitutes those facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed. Determining probable cause is an intellectual activity premised on the prior physical presentation or submission of documentary or testimonial proofs either confirming, negating or qualifying the allegations in the complain

Tambunting does not deny that he is born of a Filipino mother and an American father. Neither does he deny that he underwent the process involved in INS Form I-130 (Petition for Relative) because of his father’s citizenship. Tambunting claims that because of his parents’ differing citizenships, he is both Filipino and American by birth. Cordora, on the other hand, insists that Tambunting is a naturalized American citizen.

We agree with Commissioner Sarmiento’s observation that Tambunting possesses dual citizenship. Because of the circumstances of his birth, it was no longer necessary for Tambunting to undergo the naturalization process to acquire American citizenship. The process involved in INS Form I-130 only served to confirm the American citizenship which Tambunting acquired at birth. The certification from the Bureau of Immigration which Cordora presented contained two trips where Tambunting claimed that he is an American. However, the same certification showed nine other trips where Tambunting claimed that he is Filipino. Clearly, Tambunting possessed dual citizenship prior to the filing of his certificate of candidacy before the 2001 elections. The fact that Tambunting had dual citizenship did not disqualify him from running for public office.

To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states

Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual’s volition.

in Sections 2 and 3 of R.A. No. 9225, the framers were not concerned with dual citizenship per se, but with the status of naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization.12 Section 5(3) of R.A. No. 9225 states that naturalized citizens who reacquire Filipino citizenship and desire to run for elective public office in the Philippines shall "meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of filing the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath" aside from the oath of allegiance prescribed in Section 3 of R.A. No. 9225. The twin requirements of swearing to an Oath of Allegiance and executing a Renunciation of Foreign Citizenship served as the bases for our recent rulings in Jacot v. Dal and COMELEC,13 Velasco v. COMELEC,14 and Japzon v. COMELEC,15 all of which involve natural-born Filipinos who later became naturalized citizens of another country and thereafter ran for elective office in the Philippines. In the present case, Tambunting, a natural-born Filipino, did not subsequently become a naturalized citizen of another country. Hence, the twin requirements in R.A. No. 9225 do not apply to him.

Cordora concluded that Tambunting failed to meet the residency requirement because of Tambunting’s naturalization as an American. Cordora’s reasoning fails because Tambunting is not a naturalized American. Moreover, residency, for the purpose of election laws, includes the twin elements of the fact of residing in a fixed place and the intention to return there permanently,16 and is not dependent upon citizenship.

In view of the above, we hold that Cordora failed to establish that Tambunting indeed willfully made false entries in his certificates of candidacy. On the contrary, Tambunting sufficiently proved his innocence of the charge filed against him. Tambunting is eligible for the office which he sought to be elected and fulfilled the citizenship and residency requirements prescribed by law.

CASE DIGEST : COMELEC VS ROMILLO

G.R. No. L-36388 March 16, 1988

COMMISSION ON ELECTIONS, petitioner, 

vs.

HONORABLE MANUEL V. ROMILLO, JR., District Judge, Court of First Instance of Ilocos Norte (Branch II), respondent.

FACTS : On April 24,1972, the COMELEC filed four (4) criminal Complaints against one Eden Asuncion for election offenses committed on Election Day, November 8,1971, at around 10:00 A.M., at Polling Precinct No. 58, Laoag City. The four (4) cases were filed with said court for preliminary investigation pursuant to Sections 234 and 236 of the Election Code of 1971 (Republic Act No. 6388. 1

After preliminary investigation, respondent Judge issued the Order, dated October 27,1972, dismissing Criminal Cases Nos. 119-II, 121-II and 122- II for insufficiency of evidence, and quashing the Complaint in Criminal Case No. 120-II, which is the questioned portion of the Order, on the ground that the mere presence of an unauthorized person in the polling place does not constitute an offense.

COMELEC's Motion for Reconsideration was denied by respondent Judge in his Order dated December 20, 1972,

ISSUE : WON there is a violation of Section 172 of the Election Code.

HELD : Violation of the foregoing provision is classified as a serious election offense, thus:

Sec. 230.              Election offenses and their classification. — Violation of any of the provisions, or pertinent portions of sections ... one hundred and seventy-two ... shall be serious election offenses; ...

the penalty prescribed therefor being:

SEC. 233.              Penalties. — Any one found guilty of a serious election offense shall be punished with imprisonment of not less than six years and one day but not more than twelve years; ...

From the tenor of the foregoing provisions, it is clear that Section 172, in relation to Sections 230 and 233 of the Revised Election Code of 1971, is penal in character, contrary to the ruling of respondent Judge.

Sections 172, 230 and 233 of the said 1971 Election Code have been reproduced in Sections 137, 179 and 181 of the 1978 Election Code, and in Sections 192, 262 and 264 of the Omnibus Election Code.

But while respondent Judge may have erred in his rationalization, the quashal of the complaint in Criminal Case No. 120-II will have to be upheld. The same reason given by respondent Judge for the dismissal of Criminal Cases Nos. 119-II, 121-II and 122-II, that is, for insufficiency of evidence, applies. Quoted in the dismissal Order is the following testimony of the Chairman of the Board of Election Inspectors of Precinct No. 58, Laoag City, showing the absence of a prima facie case against the accused.

Q —       As per telegram of the Comelec, Manila, dated February 10, 1972, affidavits were submitted by Marcelino Dajugar and Lucille Guerrero of Barrios Balatong and No. 19, respectively, of Laoag City charging one, Eden Asuncion, of having entered the polling place and voting booths of Precinct No. 58, with firearms and then watched voters fill up ballots and read the contents thereof What can you say about that?

A—        All I can say is that when I saw Eden Asuncion tried (sic) to enter the voting booth, I stopped him and sent him out and he did so; I never saw him carrying a firearm. With respect to the charges that Eden Asuncion watched voters fill up their ballots and reading the contents of the same, I never saw him committed (sic) those acts because when he tried to enter the voting booths I called his attention to go out and he went out. (Exhibit "1")

CASE DIGEST : PEOPLE VS REYES

G.R. No. 115022 August 14, 1995

PEOPLE OF THE PHILIPPINES, petitioner, 

vs.

HON. WILFREDO D. REYES, Presiding Judge, RTC, Branch 36, Manila and BUENAVENTURA C. MANIEGO, respondents.

FACTS : The facts reveal that respondent Buenaventura C. Maniego, Collector of Customs, Collection District II, Bureau of Customs, Manila International Container Port (MICP), issued MICP Customs Personnel Order No. 21-92 dated January 10, 1992 assigning Jovencio D. Ebio, Customs Operation Chief, MICP to the Office of the Deputy Collector of Customs for Operations as Special Assistant.1 The actual transfer of Ebio was made on January 14, 1992.

On May 4, 1992, Ebio filed with the Commission on Elections (COMELEC) a letter-complaint protesting his transfer. Ebio claimed that his new assignment violated COMELEC Resolution No. 2333 and section 261 (h) of B.P. Blg. 881,

After a preliminary investigation, the COMELEC filed on May 6, 1995 an information with the Regional Trial Court, Branch 36, Manila charging respondent Maniego with a violation of Section 261 (h) of B. P. Blg. 881

Before the arraignment, respondent Maniego moved to quash the information on the ground that the facts alleged do not constitute an offense. On September 23, 1993, the trial court granted private respondent's motion to quash and dismissed Criminal Case No. 93-120275.3 Petitioner moved to reconsider but the same was denied on January 25, 1995.4 Petitioner forthwith elevated the case to this Court on a pure question of law.

ISSUE WON Maniego is liable

HELD : It ought to be immediately obvious that Section 261 (h) of B.P. Blg. 881 does not per se outlaw the transfer of a government officer or employee during the election period. To be sure, the transfer or detail of a public officer or employee is a prerogative of the appointing authority.

Prescinding from this predicate, two (2) elements must be established to prove a violation of Section 261 (h) of B.P. Blg. 881, viz: (1) The fact of transfer or detail of a public officer or employee within the election period as fixed by the COMELEC, and (2) the transfer or detail was effected without prior approval of the COMELEC in accordance with its implementing rules and regulations.

In the case at bench, respondent Maniego transferred Ebio, then the Customs Operation Chief, MICP to the Office of the Deputy Collector of Customs for Operations as Special Assistant on January 14, 1992. On this date, January 14, 1992, the election period for the May 11, 1992 synchronized elections had already been fixed to commence January 12, 1992 until June 10, 1992. As aforestated, this election period had been determined by the COMELEC in its Resolution No. 2314 dated November 20, 1991 and Resolution No. 2328 January 2, 1992. Nonetheless, it was only in Resolution No. 2333 which took effect on January 15, 1992 that COMELEC promulgated the necessary rules on how to get its approval on the transfer or detail of public officers or employees during the election period. Before the effectivity of these rules, it cannot be said that Section 261 (h) of B.P. Blg. 881, a penal provision, was already enforceable. Needless to state, respondent Maniego could not be charged with failing to secure the approval of the COMELEC when he transferred Ebio on January 14, 1992 as on that day, the rules of the COMELEC on the subject were yet in existent.

CASE DIGEST : AQUINO VS COMELEC

G.R. Nos. 211789-90               March 17, 2015

DR. REY B. AQUINO, Petitioner, 

vs.

COMMISSION ON ELECTIONS, Respondent.

Aquino vs Comelec

On January 8, 2010, Aquino, as President and Chief Executive Officer of the Philippine Health Insurance Corporation (PHIC),issued PhilHealth Special Order No. 16, Series of 2010 (reassignment order)5 directing the reassignment of several PHIC officers and employees.

On the same date, Aquino released the reassignment order, via the PHIC’s intranet service, to all PHIC officers and employees, including the following: (1) Dennis Adre, PHIC Regional Vice-President (VP); (2) Masiding Alonto, PHIC Regional VP; and (3) Khaliquzzaman M. Macabato, PHIC Assistant Regional VP.

On January 11, 2010, Aquino issued an Advisory implementing the reassignment order.

In view of the reassignment order and its directive, Dean Rudyard A. Avila III, consultant to the Chairman of the Board of PHIC and former Secretary of the PHIC Board of Directors, filed before the COMELEC on January 18, 2010, a complaint against Aquino and Melinda C. Mercado, PHIC Officer-in-Charge, Executive VPand Chief Operating Officer, for violation of COMELEC Resolution No. 8737in relation to Section 261(h) of BP 881. The case was docketed as E.O. Case No. 10-003.

On March 29, 2010, Aquino filed a petition10 before the COMELEC reiterating his request and maintaining that PhilHealth SO No. 16-2010 is beyond the coverage of Resolution No. 8737. The COMELEC directed its Law Department to file the appropriate information against Aquino for violation of Resolution No. 8737 in relation to Section 261(h) of BP 881; it dismissed, for lack of merit, the complaint against Mercado, Mendiola, and Basa.

The COMELEC declared that Aquino violated Section 261(h) of BP 881 when he directed the transfer/reassignment of the PHIC officers and employees within the declared election period without its prior approval. It pointed out that Section 261(h) considers an election offense for "any public official who makes or causes the transfer or detail whatever of any public officer or employee in the civil service x x x within the election period except upon prior approval of the Commission."

On December 7, 2012, Aquino sought reconsideration15 of the COMELEC’s October 19, 2012 resolution.

The COMELEC agreed with the complainants’ position and ruled that the word "whatever" in Section 261(h) of BP 881 expanded the coverage of the prohibition so as to include any movement of personnel, including reassignment, among others. In fact, to dispel any ambiguity as regards Section 261(h)’s prohibition, Resolution No. 8737 defined the word "transfer" as including any personnel action.

The COMELEC affirmed in toto the October 19, 2012 resolution.

ISSUE : WON  the COMELEC validly found prima facie case against Aquino for violation of Resolution No. 8737 in relation to Section 261(h).

HELD : COMELEC Resolution No. 8737 is valid

A common and clear conclusion that we can gather from these provisions is the obvious and unequivocal intent of the framers of the Constitution and of the law to grant the COMELEC with powers, necessary and incidental to achieve the objective of ensuring free, orderly, honest, peaceful and credible elections.

In Resolution No. 8737, the COMELEC defined the phrase "transfer or detail whatever" found in Section 261(h) of BP 881 as including any personnel action, i.e., "reassignment." Aquino questions this COMELEC interpretation as an unwarranted expansion of the legal prohibition which he argues renders the COMELEC liable for grave abuse of discretion.

the Court already clarified the interpretation of the term whatever as used in Section 261(h) of BP 881 in relation to the terms transfer and detail. In agreeing with the Solicitor General’s position, this Court declared that the terms transfer and detail are modified by the term whatever such that "any movement of personnel from one station to another, whether or not in the same office or agency, during the election period is covered by the prohibition.

Read in the light of this ruling, we affirm the COMELEC’s interpretation of the phrase "transfer or detail whatever" as we find the Regalado interpretation consistent with the legislative intent

Thus, to reiterate and emphasize – the election law’s prohibition on transfer or detail covers any movement of personnel from one station to another, whether or not in the same office or agency when made or caused during the election period.

As a general rule, the period of election starts at ninety (90) days before and ends thirty (30) days after the election date pursuant to Section 9, Article IX-C of the Constitution and Section 3 of BP 881. This rule, however, is not without exception. Under these same provisions, the COMELEC is not precluded from setting a period different from that provided thereunder.

In this case, the COMELEC fixed the election period for the May 10, 2010 Elections at 120 days before and 30 days after the day of the election. We find this period proper as we find no arbitrariness in the COMELEC’s act of fixing an election period longer than the period fixed in the Constitution and BP 881

Under Section 261(h) of BP 881,a person commits the election offense of violation of the election transfer ban when he makes or causes the transfer or detail whatever of any official or employee of the government during the election period absent prior approval of the COMELEC.

By its terms, Section 261(h) provides at once the elements of the offense and its exceptions. The elements are: (1) the making or causing of a government official or employee’s transfer or detail whatever; (2) the making or causing of the transfer or detail whatever was made during the election period; and (3) these acts were made without the required prior COMELEC approval

By its terms, Section 261(h) provides at once the elements of the offense and its exceptions. The elements are: (1) the making or causing of a government official or employee’s transfer or detail whatever; (2) the making or causing of the transfer or detail whatever was made during the election period; and (3) these acts were made without the required prior COMELEC approval

Make is defined as "to cause to exist. To do, perform, or execute; as to make an issue, to make oath, to make a presentment. To do in form of law; to perform with due formalities; to execute in legal form; as to make answer, to make a return or report. To execute as one’s act or obligation; to prepare and sign; to issue; to sign, execute, and deliver."44

Cause, on the other hand, is defined as "each separate antecedent of an event. Something that precedes and brings about an effect or result. A reason for an action or condition x x x x an agent that brings about something. That which in some manner is accountable for condition that brings about an effect or that produces a cause for the resultant action or state.

Significantly, the terms make and cause indicate one and the same thing – the beginning, the start of something, a precursor; it pertains to an act that brings about a desired result. If we read these definitions within the context of Section 261(h) of BP 881, the legal prohibition on transfer or detail undoubtedly affects only those acts that go into the making or causing or to the antecedent acts.

In short, during the making or causing phase of the entire transfer or reassignment process – from drafting the order, to its signing, up to its release – the issuing official plays a very real and active role. Once the transfer or reassignment order is issued, the active role is shifted to the addressee of the order who should now carry out the purpose of the order. At this level – the implementation phase – the issuing official’s only role is to see to it that the concerned officer or employee complies with the order. The issuing official may only exert discipline upon the addressee who refuses to comply with the order.

Following these considerations, we find that the COMELEC gravely abused its discretion in this case based on the following facts:

First, Aquino made or caused the reassignment of the concerned PHIC officers and employees before the election period.

Second, Aquino sent out, via the PHIC’s intranet service, the reassignment order to all affected PHIC officers and employees before the election period.

Third, the reassignment order was complete in its terms, as it enumerated clearly the affected PHIC officers and employees as well as their respective places of reassignments, and was made effective immediately or on the day of its issue, which was likewise before the election period.

Fourth, the subsequent orders that Aquino issued were not reassignment orders per se contrary to the COMELEC’s assessment.

Based on these clear facts, Aquino completed the act of making or causing the reassignment of the affected PHIC officers and employees before the start of the election period. In this sense, the evils sought to be addressed by Section 261 (h) of BP 881 is kept intact by the timely exercise of his management prerogative in rearranging or reassigning PHIC personnel within its various offices necessary for the PHIC's efficient and smooth operation. As Aquino's acts of issuing the order fell outside the coverage of the transfer prohibition, he cannot be held liable for violation of Section 261(h).

In sum, the COMELEC gravely abused its discretion when, firstly, it used wrong or irrelevant considerations when it sought to hold Aquino liable for violation of Section 261 (h) for issuing orders that were clearly not for reassignment, but which were simply orders for retention of position or orders for temporary discharge of additional duties.

CASE DIGEST : NAVAROSA VS COMELEC

CHARITO NAVAROSA, petitioner, vs. COMMISSION ON ELECTIONS, HONORABLE DEAN R. TELAN, as Presiding Judge, Regional Trial Court, Branch 9, Kalibo, Aklan and ROGER M. ESTO, respondents.

FACTS : Petitioner Charito Navarosa (petitioner Navarosa) and respondent Roger M. Esto (respondent Esto) were candidates for mayor of Libacao, Aklan in the 14 May 2001 elections. On 17 May 2001, the COMELEC Municipal Board of Canvassers of Libacao proclaimed petitioner Navarosa as the duly elected mayor, with a winning margin of three (3) votes over respondent Esto

Claiming that irregularities marred the canvassing of ballots in several precincts, respondent Esto filed an election protest docketed as Election Case No. 129 (election protest) in the Regional Trial Court, Branch 9, Kalibo, Aklan (trial court). Petitioner Navarosa, who also claimed that canvassing irregularities prejudiced her, filed a counter-protest in the same case.

On 4 March 2002, after revision of the contested ballots, the trial court rendered judgment in favor of respondent Esto

Petitioner Navarosa appealed the trial courts ruling to the COMELEC (EAC Case No. A-9-2002). Respondent Esto, on the other hand, filed with the trial court a motion for execution of the judgment pending petitioner Navarosas appeal. Petitioner Navarosa opposed respondent Estos motion. In the alternative, petitioner Navarosa offered to file a supersedeas bond to stay execution pending appeal, should the trial court grant respondent Estos motion.

In its Resolution dated 28 November 2002 (Resolution), the COMELEC Second Division affirmed the trial courts Order granting execution pending appeal and nullified the stay of the execution. The Second Division also found that respondent Esto duly paid the COMELEC filing fee.

Petitioner Navarosa sought reconsideration of this ruling but the COMELEC En Banc denied her motion on 15 April 2003.

Hence, this petition.

On 10 June 2003, the Court required the parties to maintain the status quo pending resolution of this petition.

ISSUE : WON the Trial court had power to order the stay of execution pending appeal

HELD :

to grant execution pending appeal in election protest cases, the following requisites must concur: (1) there must be a motion by the prevailing party with notice to the adverse party; (2) there must be good reasons for the execution pending appeal; and (3) the order granting execution pending appeal must state the good reasons.[23] Petitioner Navarosa concedes respondent Estos compliance with the first and third requisites. What she contests is the trial courts finding that there are good reasons to order discretionary execution of its decision.

Unlike the Election Code of 1971,[27] which expressly provided for execution pending appeal of trial courts rulings in election protests, the present election laws are silent on such remedy. Nevertheless, Section 2, Rule 39 (Section 2) of the Rules of Court (now 1997 Rules of Civil Procedure) applies in suppletory character to election cases, thus allowing execution pending appeal in the discretion of the court.

he Omnibus Election Code of the Philippines (B.P. Blg. 881) and the other election laws do not specifically provide for execution pending appeal of judgment in election cases, unlike the Election Code of 1971 whose Section 218 made express reference to the Rules of Court on execution pending appeal The failure of the extant election laws to reproduce Section 218 of the Election Code of 1971 does not mean that execution of judgment pending appeal is no longer available in election cases. In election contests involving elective municipal officials, which are cognizable by courts of general jurisdiction; and those involving elective barangay officials, which are cognizable by courts of limited jurisdiction, execution of judgment pending appeal under Section 2 of Rule 39 of the Rules of Court are permissible pursuant to Rule 143 of the Rules of Court, which is now Section 4, Rule 1 of the 1997 Rules of Civil Procedure.

In insisting that the simple expedient of posting a supersedeas bond can stay execution pending appeal, petitioner Navarosa neither claims nor offers a more compelling contrary policy consideration. Instead, she merely contends that Section 3 of Rule 39 (Section 3) applies also in a suppletory character because its Siamese twin[30] provision, Section 2, is already being so applied. Such simplistic reasoning both ignores and negates the public interest underlying Section 2s application. We cannot countenance such argument.

T]he bond thus given may be proceeded against on motion with notice to the surety. Consequently, it finds no application in election protest cases where judgments invariably include orders which are not capable of pecuniary estimation such as the right to hold office and perform its functions.

Furthermore, a supersedeas bond under Section 3 cannot fully protect the interests of the prevailing party in election protest cases

A supersedeas bond secures the performance of the judgment or order appealed from in case of its affirmation.[31] Section 3 finds application in ordinary civil actions where the interest of the prevailing party is capable of pecuniary estimation, and consequently, of protection, through the filing of a supersedeas bond. Thus, the penultimate sentence of Section 3 states: [T]he bond thus given may be proceeded against on motion with notice to the surety. Consequently, it finds no application in election protest cases where judgments invariably include orders which are not capable of pecuniary estimation such as the right to hold office and perform its functions

As applied to the present case, the supersedeas bond petitioner Navarosa filed can only answer for that portion of the trial courts ruling ordering her to pay to respondent Esto actual damages, attorneys fees and the cost of the suit. It cannot secure execution of that portion proclaiming respondent Esto duly elected mayor of Libacao, Aklan by popular will of the electorate and authorizing him to assume the office. This anomalous situation defeats the very purpose for the filing of the supersedeas bond in the first place.

In sum, the Court holds that the COMELEC did not commit grave abuse of discretion in ordering execution pending appeal of the trial courts decision. Grave abuse of discretion implies capricious and whimsical exercise of judgment amounting to lack of jurisdiction, or arbitrary and despotic exercise of power because of passion or personal hostility. 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.[33] This does not obtain in the present case.

CASE DIGEST : LOONG VS COMELEC

G.R. No. 93986 December 22, 1992

BENJAMIN T. LOONG, petitioner, 

vs.

COMMISSION ON ELECTIONS, NURSHUSSEIN UTUTALUM and ALIM BASHIR EDRIS, respondents.

FACTS : On 15 January 1990, petitioner filed with the respondent Commission his certificate of candidacy for the position of Vice-Governor of the Mindanao Autonomous Region in the election held on 17 February 1990 (15 January 1990 being the last day for filing said certificate); herein two (2) private respondents (Ututalum and Edris) were also candidates for the same position.

On 5 March 1990 (or 16 days after the election), respondent Ututalum filed before the respondent Commission (Second Division) a petition (docketed as SPA Case No. 90-006) seeking to disqualify petitioner for the office of Regional Vice-Governor, on the ground that the latter made a false representation in his certificate of candidacy as to his age.

On 15 May 1990, the respondent Commission (Second Division) rendered the now assailed Resolution 3 (with two (2) Commissioners — Yorac and Flores concurring, and one Commissioner — Dimaampao dissenting), holding that:

WHEREFORE, on the basis of the foregoing, the Commission on Elections (Second Division) holds that it has jurisdiction to try the instant petition and the respondent's motion to dismiss on the ground of lack of jurisdiction is hereby denied.

Denying petitioner's motion for reconsideration of the above-cited resolution, the respondent Commission issued Resolution dated 3 July 1990, 7 stating among others that —

While the Frivaldo case referred to the questioned of respondent's citizenship, we hold that the principle applies to discovery of violation of requirements for eligibility, such as for instance the fact that a candidate is a holder of a green card or other certificates of permanent residence in another country, or, as in this case, that the candidate does not possess the age qualification for the office.

On 3 July 1990, petitioner was proclaimed as the duly elected Vice-Governor of the Mindanao Autonomous Region. 8 Hence, this special civil action of certiorari filed by petitioner on 9 July 1990 to annul the aforesaid resolutions of respondent Commission dated 15 May 1990 and 3 July 1990, issued in SPA No. 90-006.

ISSUE : SPA No. 90-006 (a petition to cancel the certificate of candidacy of petitioner Loong) was filed within the period prescribed by law.

HELD : The undisputed facts are as follows: petitioner Loong filed his certificate of candidacy on 15 January 1990 (The last day for filing the same), the election for officials of the Muslim Mindanao Autonomous Region being on 17 February 1990; but private respondent Ututalum filed the petition (SPA 90-006) to disqualify candidate Loong only on 5 March 1990, or forty-nine (49) days from the date Loong's certificate of candidacy was filed (i.e. 15 January 1990), and sixteen (16) days after the election itself.

Sections 3 and 4 of Rep. Act No. 6734 (entitled, "An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao") requires that the age of a person running for the office of Vice Governor for the autonomous region shall be at least thirty-five (35) years on the day of the election

Section 74 of the Omnibus Election Code ("Code" for brevity) provides that the certificate of candidacy of the person filing it shall state, among others, the date of birth of said person. Section 78 of the same Code states that is case a person filing a certificate of candidacy has committed false representation, a petition to cancel the certificate of the aforesaid person may be filed within twenty-five (25) days from the time the certificate was filed.

Clearly, SPA No. 90-006 was filed beyond the 25-day period prescribed by Section 78 of the Omnibus Election Code.

We do not agree with private respondent Ututalum's contention that the petition for disqualification, as in the case at bar, may be filed at any time after the last day for filing a certificate of candidacy but not later than the date of proclamation, applying Section 3, Rule 25 of the Comelec Rules of Procedures.

The petition filed by private respondent Ututalum with the respondent Comelec to disqualify petitioner Loong on the ground that the latter made a false representation in his certificate of candidacy as to his age, clearly does not fall under the grounds of disqualification as provided for in Rule 25 but is expressly covered by Rule 23 of the Comelec Rules of Procedure governing petitions to cancel certificate of candidacy. Moreover, Section 3, Rule 25 which allows the filing of the petition at nay time after the last day for the filing of certificates of candidacy but not later than the date of proclamation, is merely a procedural rule issued by respondent Commission which, although a constitutional body, has no legislative powers. Thus, it can not supersede Section 78 of the Omnibus Election Code which is a legislative enactment.

We note that Section 6 refers only to the effects of a disqualification case which may be based on grounds other than that provided under Section 78 of the Code. But Section 7 of Rep. Act No. 6646 also makes the effects referred to in Section 6 applicable to disqualification cases filed under Section 78 of the Code. Nowhere in Section 6 and 7 Rep. Act. No 6646 is mentioned made of the period within which these disqualification cases may be filed. This is because there are provisions in the Code which supply the periods within which a petition relating to disqualification of candidates must be filed, such as Section 78, already discussed, and Section 253 on petitions for quo warranto.

Thus, if a person qualified to file a petition to disqualification a certain candidate fails to file the petition within the 25-day period prescribed by Section 78 of the Code for whatever reasons, the election laws do not leave him completely helpless as he has another chance to raise the disqualification of the candidate by filing a petition for quo warranto within ten (10) days from the proclamation of the results of the election, as provided under Section 253 of the Code. Section 1 Rule 21 of the Comelec Rules of procedure similarly provides that any voter contesting the election of any regional, provincial or city official on the ground of ineligibility or of disloyalty to the Republic of the Philippines may file a petition for quo warranto with the Electoral Contest Adjudication Department. The petition may be filed within ten (10)days from the date the respondent is proclaimed (Section 2).

In sum, SPA No. 90-006 was filed by private respondent Ututalum beyond the 25-day period (from the filing by petitioner Loong of the questioned certificate of candidacy) prescribed by Section 78 of the Code. It follows that the dismissal of said petition for disqualification is warranted. Further it would appear that we can not treat SPA NO. 90-006 as a petition for quo warranto (Section 253 of the Code) for when it was filed with the respondent Commission, no proclamation of election results had as yet been made, it was premature.

CASE DIGEST : FRIVALDO VS COMELEC

JUAN GALLANOSA FRIVALDO, petitioner,

vs.

COMMISSION ON ELECTIONS AND THE LEAGUE OF MUNICIPALITIES, SORSOGON CHAPTER, HEREIN REPRESENTED BY ITS PRESIDENT, SALVADOR NEE ESTUYE, respondents.

FACTS : Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon on January 22, 1988, and assumed office in due time. On October 27, 1988. the League of Municipalities, Sorsogon Chapter (hereafter, League), represented by its President, Salvador Estuye, who was also suing in his personal capacity, filed with the Commission on Elections a petition for the annulment of Frivaldo

In his answer dated May 22, 1988, Frivaldo admitted that he was naturalized in the United States as alleged but pleaded the special and affirmative defenses that he had sought American citizenship only to protect himself against President Marcos

Frivaldo moved for a preliminary hearing on his affirmative defenses but the respondent Commission on Elections decided instead by its Order of January 20, 1988, to set the case for hearing on the merits. His motion for reconsideration was denied in another Order dated February 21, 1988. He then came to this Court in a petition for certiorari and prohibition to ask that the said orders be set aside on the ground that they had been rendered with grave abuse of discretion. Pending resolution of the petition, we issued a temporary order against the hearing on the merits scheduled by the COMELEC and at the same time required comments from the respondents.

ISSUE : WON Juan G. Frivaldo was a citizen of the Philippines at the time of his election on January 18, 1988, as provincial governor of Sorsogon. All the other issues raised in this petition are merely secondary to this basic question.

HELD : The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution that all public officials and employees owe the State and the Constitution "allegiance at all times" and the specific requirement in Section 42 of the Local Government Code that a candidate for local elective office must be inter alia a citizen of the Philippines and a qualified voter of the constituency where he is running. Section 117 of the Omnibus Election Code provides that a qualified voter must be, among other qualifications, a citizen of the Philippines, this being an indispensable requirement for suffrage under Article V, Section 1, of the Constitution.

In the certificate of candidacy he filed on November 19, 1987, Frivaldo described himself as a "natural-born" citizen of the Philippines, omitting mention of any subsequent loss of such status. The evidence shows, however, that he was naturalized as a citizen of the United States in 1983 per the following certification from the United States District Court, Northern District of California, as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San Francisco, California, U.S.A.

The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution that all public officials and employees owe the State and the Constitution "allegiance at all times" and the specific requirement in Section 42 of the Local Government Code that a candidate for local elective office must be inter alia a citizen of the Philippines and a qualified voter of the constituency where he is running. Section 117 of the Omnibus Election Code provides that a qualified voter must be, among other qualifications, a citizen of the Philippines, this being an indispensable requirement for suffrage under Article V, Section 1, of the Constitution.

In the certificate of candidacy he filed on November 19, 1987, Frivaldo described himself as a "natural-born" citizen of the Philippines, omitting mention of any subsequent loss of such status. The evidence shows, however, that he was naturalized as a citizen of the United States in 1983 per the following certification from the United States District Court, Northern District of California, as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San Francisco, California, U.S.A.

If he really wanted to disavow his American citizenship and reacquire Philippine citizenship, the petitioner should have done so in accordance with the laws of our country. Under CA No. 63 as amended by CA No. 473 and PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation.

It does not appear that Frivaldo has taken these categorical acts. He contends that by simply filing his certificate of candidacy he had, without more, already effectively recovered Philippine citizenship. But that is hardly the formal declaration the law envisions — surely, Philippine citizenship previously disowned is not that cheaply recovered. If the Special Committee had not yet been convened, what that meant simply was that the petitioner had to wait until this was done, or seek naturalization by legislative or judicial proceedings.

The argument that the petition filed with the Commission on Elections should be dismissed for tardiness is not well-taken. The herein private respondents are seeking to prevent Frivaldo from continuing to discharge his office of governor because he is disqualified from doing so as a foreigner. Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged. If, say, a female legislator were to marry a foreigner during her term and by her act or omission acquires his nationality, would she have a right to remain in office simply because the challenge to her title may no longer be made within ten days from her proclamation? It has been established, and not even denied, that the evidence of Frivaldo's naturalization was discovered only eight months after his proclamation and his title was challenged shortly thereafter.

This Court will not permit the anomaly of a person sitting as provincial governor in this country while owing exclusive allegiance to another country. The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule limiting public office and employment only to the citizens of this country. The qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state.

It is true as the petitioner points out that the status of the natural-born citizen is favored by the Constitution and our laws, which is all the more reason why it should be treasured like a pearl of great price. But once it is surrendered and renounced, the gift is gone and cannot be lightly restored. This country of ours, for all its difficulties and limitations, is like a jealous and possessive mother. Once rejected, it is not quick to welcome back with eager arms its prodigal if repentant children. The returning renegade must show, by an express and unequivocal act, the renewal of his loyalty and love.

CASE DIGEST : ROSAL VS COMELEC

G.R. No. 168253             March 16, 2007

MAYOR NOEL E. ROSAL, Petitioner, 

vs.

COMMISSION ON ELECTIONS, Second Division, and MICHAEL VICTOR IMPERIAL, Respondents.

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

G.R. No. 172741             March 16, 2007

MAYOR NOEL E. ROSAL, Petitioner, 

vs.

COMMISSION ON ELECTIONS and MICHAEL VICTOR IMPERIAL, Respondents.

FACTS : etitioner Noel E. Rosal and private respondent Michael Victor C. Imperial were candidates for mayor of Legaspi City in the May 10, 2004 elections. After the counting and canvassing of votes, petitioner was proclaimed as the duly elected mayor of Legaspi City, having received 44,792 votes over private respondents 33,747 and thereby winning by a margin of 11,045 votes.

On May 24, 2004, private respondent instituted a petition to annul the proclamation,[1] assailing the canvass of election returns in the 520 precincts that had functioned during the election. On July 6, 2004, the case was superseded by an election protest filed by private respondent with the Commission on Elections (Comelec) contesting the results of the election in all 520 precincts on the grounds of miscounting, misreading and misappreciation of votes, substitute voting, disenfranchisement of voters, substitution and padding of votes, and other alleged irregularities

After an initial hearing on private respondents protest and petitioners answer, the Second Division issued on November 17, 2004 an order directing the collection of the ballot boxes from the contested precincts and their delivery to the Comelec.

Revision of the contested ballots commenced in mid-January of 2005[3] and concluded on February 2, 2005. The revision report indicated a reduction in petitioners vote count from 44,792 votes to 39,752 and an increase in that of private respondent from 22,474 to 39,184 votes. Shortly thereafter, petitioner filed a motion for technical examination of contested ballots on the ground that thousands of ballots revised by the revision committees were actually spurious ballots that had been stuffed inside the ballot boxes sometime after the counting of votes but before the revision proceedings. The Second Division denied the motion.

On March 17, 2005, the first hearing set for the presentation of his evidence, petitioner was directed to pre-mark his exhibits and formalize his intention to have his witnesses subpoenaed.

In an order dated April 25, 2005,[4] the Second Division ruled that the testimonies of the proposed witnesses were unnecessary inasmuch as the Comelec had the authority and wherewithal to determine by itself the ballots authenticity and, for that reason, denied the motion and directed petitioner to file forthwith his formal offer of evidence.

Asserting his right to present evidence in his defense, petitioner filed on May 6, 2005 a motion for reconsideration of the April 25, 2005 order. In an order dated May 12, 2005, the Second Division denied the motion.

On June 15, 2005, petitioner filed in this Court a petition for certiorari[7] under Rule 65 of the Rules of Court (docketed as G.R. No. 1628253) assailing the April 25 and May 12, 2005 orders of the Comelecs Second Division for having been rendered with grave abuse of discretion.

Meanwhile, the Second Division continued with the proceedings and, following the submission of the parties memoranda, considered EPC No. 2004-61 submitted for resolution.

In a resolution[8] dated January 23, 2006, the Second Division then composed of only two sitting members, namely, Presiding Commissioner Mehol Sadain (now retired) and Commissioner Florentino Tuason, Jr. declared private respondent Imperial the winning candidate for mayor of Legaspi City and ordered petitioner Rosal to vacate said office and turn it over peacefully to private respondent.

On January 30, 2006, petitioner filed a motion for reconsideration of the Second Divisions resolution. The motion was denied by the Comelec en banc in a resolution dated May 29, 2006.[10] In due time, petitioner came to this Court with a petition for certiorari and prohibition assailing the Comelec en banc resolution. The case was docketed as G.R. No. 172741 and consolidated with G.R. No. 168253

ISSUE :

HELD : an interlocutory order rendered by a division of the Comelec, cannot be assailed by means of a special civil action for certiorari, as only final orders of the Comelec en banc can be brought to the Supreme Court by that mode.

We disagree. Section 1, Rule 65 of the Rules of Court,

In fine, Kho tells us that an interlocutory order of a Comelec division should be challenged at the first instance through a proper motion, such as a motion for reconsideration, filed with the division that rendered the order. If that fails and no other plain, speedy and adequate remedy (such as recourse to the Comelec en banc) is available, the party aggrieved by the interlocutory order may elevate the matter to the Supreme Court by means of a petition for certiorari on the ground that the order was issued without or in excess of jurisdiction or with grave abuse of discretion.

As made abundantly clear by the foregoing provisions, the mode of preserving the ballots in this jurisdiction is for these to be stored safely in sealed and padlocked ballot boxes which, once closed, shall remain unopened unless otherwise ordered by the Comelec in cases allowed by law.

We summarize the foregoing doctrines: (1) the ballots cannot be used to overturn the official count as reflected in the election returns unless it is first shown affirmatively that the ballots have been preserved with a care which precludes the opportunity of tampering and all suspicion of change, abstraction or substitution; (2) the burden of proving that the integrity of the ballots has been preserved in such a manner is on the protestant; (3) where a mode of preserving the ballots is enjoined by law, proof must be made of such substantial compliance with the requirements of that mode as would provide assurance that the ballots have been kept inviolate notwithstanding slight deviations from the precise mode of achieving that end; (4) it is only when the protestant has shown substantial compliance with the provisions of law on the preservation of ballots that the burden of proving actual tampering or the likelihood thereof shifts to the protestee and (5) only if it appears to the satisfaction of the court or Comelec that the integrity of the ballots has been preserved should it adopt the result as shown by the recount and not as reflected in the election returns.

The procedure adopted by the Second Division was a complete inverse of the one outlined above and was contrary to reason. There was complete arbitrariness on its part.

First, there was no indication at all that it ever considered the condition of the ballot boxes at the time they were delivered to the Comelec for revision

Second, it placed the burden of proving actual tampering of the ballots on petitioner herein (the protestee below) notwithstanding private respondents previous manifestation that most of the ballot boxes bore overt signs of tampering[28] and only 79 ballot boxes were found intact.

Third, instead of diligently examining whether the ballot boxes were preserved with such care as to preclude any reasonable opportunity for tampering with their contents, the Second Division made the probative value of the revised ballots dependent solely on whether spurious ballots were found among them.

CASE DIGEST : VELORIA VS COMELEC

G.R. No. 94771 July 29, 1992

ATTY. RAMON J. VELORIA, ENGR. RENATO J. ESPEJO, JESUS O. BANDOLIN, SEGUNDO D. BILLOTE, GERONIMO B. ENRIQUEZ, RODOLFO C. MADRIAGA, and SOFRONIO L. MANGONON, and HON. ROMULO E. ABASOLO, as Presiding Judge-Designate, Regional Trial Court, First Judicial Region, Branch 49, Urdaneta, Pangasinan, petitioners, 

vs.

COMMISSION ON ELECTIONS, composed of DARIO C. RAMA, Commissioner-Ponente, HAYDEE B. YORAC, Acting Chairperson, ALFREDO E. ABUEG, Commissioner, LEOPOLDO L. AFRICA, Commissioner, ANDRES R. FLORES, Commissioner, MAGDARA B. DIMAAMPAO, Commissioner, HON SANTIAGO G. ESTRELLA, as Presiding Judge, Regional Trial Court, First Judicial Region, Branch 49, Urdaneta, Pangasinan, ATTY. PEDRO N. SALES, ENGR. WILFREDO E. SORIANO, ERLINDA C. TAMBAOAN, ENGR. EMILIO M. ANGELES, JR., ELEUTERIO C. SISON, MANUEL FERRER and SANTOS SIBAYAN, respondents.

FACTS : The seven (7) petitioners, Ramon Veloria, Renato Espejo, Jesus Bandolin, Segundo Billote, Geronimo Enriquez, Rodolfo Madriaga and Sofronio Mangonon, as well as the seven (7) private respondents, Pedro Sales, Wilfredo Soriano, Erlinda Tambaoan, Emilio Angeles, Jr., Eleuterio Sison, Manuel Ferrer and Santos Sibayan were candidates for municipal mayor (Veloria and Sales), vice-mayor (Espejo and Soriano) and members of the Sangguniang Bayan of Manaoag, Pangasinan, in the local elections of January 18, 1988.

After the canvass of the election returns on January 31, 1988, the private respondents were proclaimed duly elected to the positions they ran for.

Dissatisfied, the petitioners filed Election Protest No. U-4659 which was raffled to Branch 48 of the Regional Trial Court of Urdaneta, Pangasinan, then presided over by the late Hon. Alfredo de Vera.

Several proceedings were had, and some issues were brought up to the Court of Appeals and this Court for determination.

Finally, the revision of ballots was set on February 26, 1990 by Judge Santiago Estrella, Presiding Judge of Branch 49, Regional Trial Court of Urdaneta, Pangasinan, where the Election Protest No. U-4659 was re-assigned by raffle after Judge Vera's untimely death.

On February 26, 1990, during the scheduled initial revision of the ballots in Precinct No. 22, Barangay Licsi, the private respondents, as protestees, filed a "Motion to Dismiss" on the ground that the RTC had not acquired jurisdiction

The petitioners-protestants opposed the Motion to Dismiss. On March 7, 1990, Judge Santiago Estrella dismissed the election protest

The petitioners received a copy of the court's Resolution on March 15, 1990. However, instead of perfecting an appeal within five (5) days as provided by law, the petitioners filed a Motion for Reconsideration on March 20, 1990. On April 10, 1990, the private respondents filed a "Motion to Dismiss Notice of Appeal" on the grounds

On May 10, 1990, Judge Abasolo gave due course to petitioners' Notice of Appeal.

The private respondents (as protestees) sought recourse in the Commission on Elections (COMELEC) by a petition for certiorari and Prohibition with a Prayer for a Writ of Preliminary Injunction or Restraining Order (SPR No. 8-90) to annul Judge Abasolo's order giving due course to the appeal.

On June 14, 1990, the Commission en banc issued the following Order defining the issues:

After a thorough discussion of the issues, the following crystallized as the only issues to be presented for resolution by the Commission, namely: (1) the issue of whether or not a Motion for Reconsideration in electoral cases is a prohibited pleading; and (2) the parties agreed that in case the answer to the first issue is "yes," the notice of appeal was filed out of time and in case the answer is "no," the notice of appeal was filed on time.

On August 2, 1990, the COMELEC granted the petition for certiorari

Hence, this special civil action of Certiorari and Prohibition with prayer for a writ of preliminary injunction and/or temporary restraining order, filed on August 31, 1990 by the petitioners (protestants below), pursuant to Rule 39, Section 1, COMELEC RULES OF PROCEDURE

ISSUE : WON the COMELEC Erred in Granting the petition

HELD : There is no merit in this petition for review for the COMELEC correctly found that the petitioners' appeal from the court's order dismissing their election protest was indeed tardy. It was tardy because their motion for reconsideration did not suspend their period to appeal. The petitioners' reliance on Section 4, Rule 19 of the COMELEC RULES OF PROCEDURE is misplaced. The "motion for reconsideration" referred to above is a motion for reconsideration filed in the COMELEC, not in the trial court where a motion for reconsideration is not entertained.

The COMELEC, therefore, correctly ruled that the motion for reconsideration filed by the petitioners in the trial court on March 20, 1990 did not suspend the period to appeal since a "motion for reconsideration" is prohibited under Section 256 of the Omnibus Election Code.

Since the right to appeal is not a natural right nor is it a part of due process, for it is merely a statutory privilege that must be exercised in the manner and according to procedures laid down by law

Nevertheless, we must grant this petition for certiorari for the COMELEC does not possess jurisdiction to grant the private respondents' petition for certiorari.

In view of this pronouncement, an original special civil action of certiorari, prohibition or mandamus against a regional trial court in an election contest may be filed only in the Court of Appeals or in this Court, being the only courts given such original jurisdiction under the Constitution and the law.

CASE DIGEST : CASTAMAYOR VS COMELEC

G.R. No. 120426 November 23, 1995

NICOLAS C. CASTROMAYOR, petitioner, 

vs.

COMMISSION ON ELECTIONS and the MUNICIPAL BOARD OF CANVASSERS OF CALINOG, ILOILO, respondents.

FACTS : Petitioner was a candidate for a seat in the eight-member Sangguniang Bayan of the municipality of Calinog, Iloilo in the elections held on May 8, 1995.

After the votes had been cast, the Municipal Board of Canvassers (MBC) convened at 6:00 p.m. of that day and began the canvass of the election returns from the different precincts in the municipality. The canvassing lasted well into the night of May 9, 1995. The totals of the votes cast were checked by the Municipal Accountant who acted as recorder of votes.

On May 10, 1995, the winners were proclaimed on the basis of the results of the canvass which showed that petitioner received 5,419 votes and took eighth place in the election for members of the Sangguniang Bayan

As matters stood, therefore the total number of votes cast for Demorito was 5,470, or 51 more than the 5,419 votes cast for petitioner.

As matters stood, therefore the total number of votes cast for Demorito was 5,470, or 51 more than the 5,419 votes cast for petitioner.

Garin reported the matter to the Regional Election Director, Atty. Rodolfo Sarroza, who advised her to request authority from the COMELEC to reconvene for the purpose of correcting the error.

On May 13, 1995, a fax letter was sent to the Law Department of the COMELEC in Manila. The letter explained the problem and asked for authority for the MBC to reconvene in order to correct the error, annul the proclamation of petitioner and proclaim Demorito as the eighth member of the Sangguniang Bayan.

A formal letter was later sent to the COMELEC on May 17, 1995.

On May 23, 1995, the COMELEC issued the following resolution

On May 25, 1995, not yet apprised of the resolution of the COMELEC en banc, Garin sent a letter to petitioner Castromayor, informing him of the error in the computation of the totals and of the request made by the MBC for permission to reconvene to correct the error.

Petitioner protested the proposed action in a letter dated June 5, 1995 to COMELEC Executive Director Resurreccion A. Borra. He questioned the legality of the actuations of Garin as stated in her letter.6

On June 9, 1995, the MBC was informed by fax of the COMELEC's action on its request.7

Accordingly on June 14, 1995, the MBC sent notices to the parties concerned that it was going to reconvene on June 22, 1995, at 10:00 a.m., at the Session Hall of the Sangguniang Bayan, to make a correction of errors.

Hence this petition to annul COMELEC Resolution No. 95-2414.

ISSUE : WON the comelec erred in issuing  the resolution in question without notice and hearing, solely on the basis of the fax letter of the MBC.

To be sure, the COMELEC did not itself annul the proclamation of petitioner, but, by "direct[ing] the Municipal Board of Canvassers of said municipality to reconvene to annul the proclamation of Nicolas C. Castromayor," the COMELEC in effect did so. After all, the authority of the COMELEC was sought because, without such authority, the MBC would not have the power to annul the proclamation of petitioner.

The proceedings before the MBC should be summary. Should any party be dissatisfied with the ruling of the MBC, the party concerned shall have a right to appeal to the COMELEC en banc, in accordance with Rule 27, §7 of the COMELEC Rules of Procedure

Athough this provision applies to preproclamation controversies and here the proclamation of petitioner has already been made, there is nothing to suggest that it cannot be applied to cases like the one at bar, in which the validity of the proclamation is precisely in question. On the contrary, in Duremdes v. COMELEC, 11 this Court sustained the power of the COMELEC en banc to order a correction of the Statement of Votes to make it conform to the election returns in accordance with a procedure similar to the procedure now embodied in Rule 27, §7. If the Rule was not applied, it was only because it was adopted after that case had arisen. Otherwise, as we said there, this procedure "best recommends itself specially considering that the Statement of Votes is a vital component in the electoral process."

Indeed, since the Statement of Votes forms the basis of the Certificate of Canvass and of the proclamation, any error in the statement ultimately affects the validity of the proclamation. It begs the question, therefore, to say that this is not a preproclamation controversy and the procedure for preproclamation controversies cannot be applied to the correction in the computation of the totals in the Statement of Votes.

It should be pointed out, in this connection, that what is involved here is a simple problem of arithmetic. The Statement of Votes is merely a tabulation per precinct of the votes obtained by the candidates as 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.

CASE DIGEST : DUMAYAS CS COMELEC

EN BANC

[G.R. Nos. 141952-53. April 20, 2001]

RODOLFO DUMAYAS, JR., petitioner, vs. COMMISSION ON ELECTIONS, THE MUNICIPAL BOARD OF CANVASSERS OF THE MUNICIPALITY OF CARLES, PROVINCE OF ILOILO and FELIPE BERNAL, JR., respondents.

FACTS : Petitioner Dumayas, Jr. and respondent Bernal, Jr. were rival candidates for the position of mayor in Carles, Iloilo last 11 May 1998 synchronized elections.

During the canvassing on 13 May 1998, election returns for precinct nos. 61A, 62A, and 63A/64A all of Barangay Pantalan was protested for inclusion in the canvass before the Municipal Board of Canvassers (MBC for brevity) by petitioner-appellant Dumayas Jr. The grounds relied upon for their exclusion are all the same- that is, "violation of Secs. 234, 235, 236 of the Omnibus Election Code and other election laws; acts of terrorism, intimidation, coercion, and similar acts prohibited by law."

On the other hand, respondent Bernal, Jr. in vehemently denying the allegations of petitioner, submitted joint affidavits of the members of the different Boards of Election Inspectors for precinct nos. 61A, 62A and 63A/64A.

Nody Mahilum and PO3 Gilbert Sorongon also executed a joint affidavit denying the accusations of Dumayas, Jr. and his watchers stating therein that they only entered their respective precinct-polling place in order to exercise their right of suffrage and that the election in the three precincts of Barangay Pantalan was orderly, peaceful, and honest which (sic) truly reflects the will of the electorate.

In the afternoon of May 14, 1998, the Municipal Board of Canvassers denied petitioner’s objection to the inclusion of the contested returns and proceeded with the canvass. Petitioner filed a Notice of Appeal before the MBC on May 15, 1998. The appeal was given due course by the COMELEC Second Division3 which rendered a resolution dated August 4, 1998,

On August 10, 1998, private respondent Felipe Bernal, Jr., filed a motion for reconsideration of the above-cited resolution with the COMELEC en banc.

Pending resolution of the motion for reconsideration and pursuant to the resolution of the COMELEC Second Division, Election Officer Rolando Dalen set the reconvening of the MBC on August 13, 1998, for the continuation of canvass proceedings and proclamation of winning candidates for Vice-Mayor and Municipal Councilors of Carles, Iloilo. No winner for the position of Mayor was proclaimed since private respondent was able to present a copy of his motion for reconsideration before the MBC

On August 17, 1998, despite presentation of the August 12, 1998 order, petitioner was proclaimed winner of the election after excluding from the canvass the election returns from the three contested precincts in accordance with the COMELEC Second Division Resolution.

Meanwhile, on August 25, 1998, the duly-proclaimed Vice-Mayor Arnold Betita filed an action for quo warranto5 against petitioner before the Regional Trial Court of Iloilo, Branch 66. Docketed as Spl. Civil Action No. 98-141, said petition included respondent Bernal as one of the petitioners together with Vice-Mayor Betita.

On September 18, 1998, petitioner filed before the COMELEC en banc a motion to expunge respondent Bernal’s motion for reconsideration and motion to declare petitioner’s proclamation void ab initio, on the ground that respondent Bernal should be deemed to have abandoned said motions by the filing of Spl. Civil Action No. 98-141 which, according to petitioner, is a formal election protest via quo warranto brought before the regular courts.

In a resolution dated August 24, 1999 but promulgated on March 2, 2000, the COMELEC en banc denied petitioner’s motion to expunge

On March 13, 2000, respondent Bernal, Jr. was proclaimed by the newly-constituted Municipal Board of Canvassers as the duly-elected Mayor of the Municipality of Carles, thereby unseating petitioner Dumayas.

Hence, this instant special civil action

ISSUE : WON the COMELEC err in ordering the inclusion of the contested election returns in the canvassing of ballots

HELD : As a general rule, the filing of an election protest or a petition for quo warranto precludes the subsequent filing of a pre-proclamation controversy or amounts to the abandonment of one earlier filed, thus depriving the COMELEC of the authority to inquire into and pass upon the title of the protestee or the validity of his proclamation

the general rule is not absolute. It admits of certain exceptions, as where: (a) the board of canvassers was improperly constituted; (b) quo warranto was not the proper remedy; (c) what was filed was not really a petition for quo warranto or an election protest but a petition to annul a proclamation; (d) the filing of a quo warranto petition or an election protest was expressly made without prejudice to the pre-proclamation controversy or was made ad cautelam; and (e) the proclamation was null and void.

Thus, respondent Commission did not err, much less abuse its discretion, when it refused to consider as abandoned Bernal’s motion for reconsideration and urgent motion to declare petitioner’s proclamation as void ab initio. Note that under the allegations cited above, the determination of Betita’s right would ultimately hinge on the validity of petitioner’s proclamation in the first place. To repeat, the "quo warranto" petition brought by Vice-Mayor Betita is a petition to annul petitioner’s proclamation over which COMELEC exercises original exclusive jurisdiction. Consequently, it could not be deemed as a proper remedy in favor of respondent Bernal, Jr. even if his name was included in the title of said petition.

Well-entrenched is the rule that findings of fact by the COMELEC, or any other administrative agency exercising particular expertise in its field of endeavor, are binding on this Court.18 In a pre-proclamation controversy, the board of canvassers and the COMELEC are not required to look beyond or behind the election returns which are on their face regular and authentic. Where a party seeks to raise issues the resolution of which would necessitate the COMELEC to pierce the veil of election returns which are prima facie regular, the proper remedy is a regular election protest, not a pre-proclamation controversy.1

In the present case, petitioner barely alleged that the preparation of said returns was attended by threats, duress, intimidation or coercion without offering any proof, other than the affidavits mentioned above, that these had affected the regularity or genuineness of the contested returns. Absent any evidence appearing on the face of the returns that they are indeed spurious, manufactured or tampered with, the election irregularities cited by petitioner would require the reception of evidence aliunde which cannot be done in a pre-proclamation controversy such as the one initiated by petitioner. Returns can not be excluded on mere allegation that the returns are manufactured or fictitious when the returns, on their face, appear regular and without any physical signs of tampering, alteration or other similar vice. If there had been sham voting or minimal voting which was made to appear as normal through falsification of the election returns, such grounds are properly cognizable in an election protest and not in a pre-proclamation controversy.20

In sum, we hold that the COMELEC en banc did not commit grave abuse of discretion in reversing the ruling of its Second Division. The appeal brought by petitioner from the order of inclusion issued by the MBC should have been dismissed by that Division right away, since the grounds for exclusion relied upon by petitioner are not proper in a pre-proclamation case, which is summary in nature