SYLLABI/SYNOPSIS

EN BANC

[G.R. No. 136351.  July 28, 1999]

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

D E C I S I O N

MELO, J.:

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

ACCORDINGLY, judgment is hereby rendered to:

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

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

SO ORDERED.”

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

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

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

SO ORDERED.

(pp. 90-91, Rollo.)

The aforementioned resolution dated December 8, 1998 reversed and set aside the earlier resolution of the First Division of the Comelec dated May 16, 1998, dismissing private respondent’s petition to declare the substitution of Jose “Pempe” Miranda by petitioner as candidate for the City of Santiago’s mayoralty post void.

Briefly, the pertinent factual backdrop is summarized as follows:

On March 24, 1998, Jose “Pempe” Miranda, then incumbent mayor of Santiago City, Isabela, filed his certificate of candidacy for the same mayoralty post for the synchronized May 11, 1998 elections.

On March 27, 1998, private respondent Antonio M. Abaya filed a Petition to Deny Due Course to and/or Cancel Certificate of Candidacy (pp. 26-33, Rollo), which was docketed as SPA No. 98-019.  The petition was GRANTED by the Comelec in its resolution dated May 5, 1998 (pp. 36-43, Rollo).  The Comelec further ruled to DISQUALIFY Jose “Pempe” Miranda.

On May 6, 1998, way beyond the deadline for filing a certificate of candidacy, petitioner Joel G. Miranda filed his certificate of candidacy for the mayoralty post, supposedly as a substitute for his father, Jose “Pempe” Miranda.

During the May 11, 1998 elections, petitioner and private respondent vied for the mayoralty seat, with petitioner garnering 22,002 votes, 1,666 more votes than private respondent who got only 20, 336 votes.

On May 13, 1998, private respondent filed a Petition to Declare Null and Void Substitution with Prayer for Issuance of Writ of Preliminary Injunction and/or Temporary Restraining Order, which was docketed as SPA No. 98-288.  He prayed for the nullification of petitioner’s certificate of candidacy for being void ab initio because the certificate of candidacy of Jose “Pempe” Miranda, whom petitioner was supposed to substitute, had already been cancelled and denied due course.

On May 16, 1998, Comelec’s First Division dismissed SPA No. 98-288 motu proprio (pp. 57-61, Rollo).  Private respondent moved for reconsideration (pp. 62-72, Rollo).  On December 8, 1998, the Comelec En Banc rendered the assailed decision aforequoted, resolving to GRANT the motion for reconsideration, thus nullifying the substitution by petitioner Joel G. Miranda of his father as candidate for the mayoralty post of Santiago City.

On December 9, 1998, petitioner sought this Court’s intercession via a petition for certiorari, with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction.  On December 11, 1998, the Court resolved to issue a temporary restraining order and to require respondents to comment on the petition.  On December 14, 1998, private respondent filed his Comment (pp. 140-187 and 188-234, Rollo) and on February 16, 1999, the Comelec, through its counsel, the Solicitor General, filed its Comment (pp. 254-265, Rollo).  The Court required petitioner to file a consolidated reply within 10 days from notice, but petitioner twice asked for an extension of the period.  Without granting the motions for extension of time to file consolidated reply, the Court decided to resolve the controversy in favor of petitioner.

Tersely, the issues in the present case may be summarized as follows:

1.  Whether the annulment of petitioner’s substitution and proclamation was issued without jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction; and

2.  Whether the order of the Comelec directing the proclamation of the private respondent was issued with grave abuse of discretion amounting to lack of jurisdiction.

The Court finds neither lack of jurisdiction nor grave abuse of discretion attended the annulment of the substitution and proclamation of petitioner.

On the matter of jurisdiction, there is no question that the case at hand is within the exclusive original jurisdiction of the Comelec.  As early as in Herrera vs. Baretto (25 Phil. 245 [1913]), this Court had occasion to apply the following principles:

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

(p. 251)

On the issue of soundness of the disposition in SPA No. 98-288, the Court finds that the Comelec’s action nullifying the substitution by and proclamation of petitioner for the mayoralty post of Santiago City, Isabela is proper and legally sound.

Petitioner insists that the substitution at bar is allowed under Section 77 of the Omnibus Election Code which provides:

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

Petitioner capitalizes on the fact that the Comelec ruled to disqualify Jose “Pempe” Miranda in the May 5, 1998 resolution and he heavily relies upon the above-quoted provision allowing substitution of a candidate who has been disqualified for any cause.

While there is no dispute as to whether or not a nominee of a registered or accredited political party may substitute for a candidate of the same party who had been disqualified for any cause, this does not include those cases where the certificate of candidacy of the person to be substituted had been denied due course and cancelled under Section 78 of the Code.

Expressio unius est exclusio alterius.  While the law enumerated the occasions where a candidate may be validly substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy.  Under the foregoing rule, there can be no valid substitution for the latter case, much in the same way that a nuisance candidate whose certificate of candidacy is denied due course and/or cancelled may not be substituted.  If the intent of the lawmakers were otherwise, they could have so easily and conveniently included those persons whose certificates of candidacy have been denied due course and/or cancelled under the provisions of Section 78 of the Code.

More importantly, under the express provisions of Section 77 of the Code, not just any person, but only “an official candidate of a registered or accredited political party” may be substituted.  In Bautista vs. Comelec (G.R. No. 133840, November 13, 1998) this Court explicitly ruled that “a cancelled certificate does not give rise to a valid candidacy” (p.13).

A person without a valid certificate of candidacy cannot be considered a candidate in much the same way as any person who has not filed any certificate of candidacy at all can not, by any stretch of the imagination, be a candidate at all.

The law clearly provides:

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

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

The evident purposes of the law in requiring the filing of certificates of candidacy and in fixing the time limit therefor are:  (a) to enable the voters to know, at least sixty days before the regular election, the candidates among whom they are to make the choice, and (b) to avoid confusion and inconvenience in the tabulation of the votes cast.  For if the law did not confine the choice or election by the voters to the duly registered candidates, there might be as many persons voted for as there are voters, and votes might be cast even for unknown or fictitious persons as a mark to identify the votes in favor of a candidate for another office in the same election.  (Monsale vs. Nico, 83 Phil. 758 [1949])

It is at once evident that the importance of a valid certificate of candidacy rests at the very core of the electoral process.  It cannot be taken lightly, lest there be anarchy and chaos.  Verily, this explains why the law provides for grounds for the cancellation and denial of due course to certificates of candidacy.

After having considered the importance of a certificate of candidacy, it can be readily understood why in Bautista we ruled that a person with a cancelled certificate is no candidate at all.  Applying this principle to the case at bar and considering that Section 77 of the Code is clear and unequivocal that only an official candidate of a registered or accredited party may be substituted, there demonstrably cannot be any possible substitution of a person whose certificate of candidacy has been cancelled and denied due course.

Also, under ejusdem generis rule, where a general word or phrase (such as “disqualification for any cause” in this case) follows an enumeration of particular and specific words of the same class (such as the words “dies” and “withdraws” in the instant case) or where the latter follow the former, the general word or phrase is to be construed to include, or to be restricted to persons, things or cases akin to, resembling, or of the same kind or class as those specifically mentioned (see:  Vera vs. Cuevas, 90 SCRA 379 [1979]).  A deceased candidate is required to have duly filed a valid certificate of candidacy, otherwise his political party would not be allowed to field a substitute candidate in his stead under Section 77 of the Code.  In the case of withdrawal of candidacy, the withdrawing candidate is required to have duly filed a valid certificate of candidacy in order to allow his political party to field a substitute candidate in his stead.  Most reasonable it is then, under the foregoing rule, to hold that a valid certificate of candidacy is likewise an indispensable requisite in the case of a substitution of a disqualified candidate under the provisions of Section 77 of the Code, just as it is in the two previous instances.

Furthermore, interpretatio talis in ambiguis semper freinda est, ut eviatur inconveniens et absurdum, meaning, where there is ambiguity, such interpretation as will avoid inconvenience and absurdity shall in all cases be adopted.  To include those disqualified candidates whose certificate of candidacy had likewise been denied due course and/or cancelled among those who may be substituted under Section 77 of the Omnibus Election Code, leads to the absurdity where a substitute is allowed to take the place of somebody who had not been a candidate in the first place—a person who did not have a valid certificate of candidacy prior to substitution.  Nemo dat quod non habet.  What right can a non-candidate pass on to his substitute?  Clearly, there is none because no one can give what he does not have.

Even on the most basic and fundamental principles, it is readily understood that the concept of a substitute presupposes the existence of the person to be substituted, for how can a person take the place of somebody who does not exist or who never was.  The Court has no other choice but to rule that in all the instances enumerated in Section 77 of the Omnibus Election code, the existence of a valid certificate of candidacy seasonably filed is a requisite sine qua non.

All told, a disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place because, if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy, he is and was not a candidate at all.  If a person was not a candidate, he cannot be substituted under Section 77 of the Code.  Besides, if we were to allow the so-called “substitute” to file a “new” and “original” certificate of candidacy beyond the period for the filing thereof, it would be a crystalline case of unequal protection of the law, an act abhorred by our Constitution.

From the foregoing discussion it is evident that the controversy at hand is not a simple case of hair-splitting.  A candidate may not be qualified to run for election but may have filed a valid certificate of candidacy.  Another candidate may likewise be not qualified and at the same time not have a valid certificate of candidacy, for which reason, said certificate of candidacy is also cancelled and/or denied due course.  Or, a third candidate may be qualified but, his certificate of candidacy may be denied due course and/or cancelled.  This is possible because the grounds for disqualification (see:  Omnibus Election Code, Section 68 — Disqualifications) are totally separate and distinct from the grounds for cancellation and/or denying due course to a certificate of candidacy (Ibid., Section 69— nuisance candidates; and Section 78 — material misrepresentation).  Only the candidate who had a valid certificate of candidacy may be substituted.

The question to settle next is whether or not aside from Joel “Pempe” Miranda being disqualified by the Comelec in its May 5, 1998 resolution, his certificate of candidacy had likewise been denied due course and cancelled.

The Court rules that it was.

Private respondent’s petition in SPA No. 98-019 specifically prayed for the following:

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

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

(Rollo, p. 31; Emphasis ours.)

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

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

SO ORDERED.

(p.43, Rollo; Emphasis ours.)

From a plain reading of the dispositive portion of the Comelec resolution of May 5, 1998 in SPA No. 98-019, it is sufficiently clear that the prayer specifically and particularly sought in the petition was GRANTED, there being no qualification on the matter whatsoever.  The disqualification was simply ruled over and above the granting of the specific prayer for denial of due course and cancellation of the certificate of candidacy.  It may be stressed at this instance that the legal consequences of this May 5, 1998 resolution are independent of the issue of whether or not the Comelec was correct in reviving SPA No. 98-019 by consolidating it with SPA No. 98-288 in its December 8, 1998 resolution.

As regards the procedural matter in the present petition for certiorari, the following considerations are also in point:

It may be relevantly stressed that the review powers of the Supreme Court over decisions of the Constitutional Commissions, in general, and the Commission on Elections, in particular, were rather particularly defined and “limited” by the 1987 Constitution, as they were also circumscribed in the 1973 Constitution, to a petition for review on certiorari under Rule 65.  In Dario vs. Mison (176 SCRA 84 [1989]), the Court held:

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

In Aratuc, we declared:

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

x x x

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

(pp. 111-112)

To emphasize this procedural point, then Commissioner, later to become a distinguished Member of this Court, Mr. Justice Florenz Regalado responded to Commissioner Bernas’ query during the deliberations of the 1987 Constitution thusly:

FR. BERNAS.  So, for purposes of the record, now, what is the intention of the Committee?  What are the grounds for certiorari?

MR. REGALADO.  The Committee refers specifically to a technical term of review by certiorari would be relying on the provision of Rule XLV [Should be LXV] of the Rules of Court that laid down the three grounds.

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

Thus, we have to be guided by jurisprudence relating to review by certiorari under Rule 65.  Generally, certiorari lies where a court has acted without or in excess of jurisdiction or with grave abuse of discretion.

“Without jurisdiction” refers to an absolute want of jurisdiction; “excess of jurisdiction” refers to the case where the court has jurisdiction, but it transcended the same or acted without any statutory authority; “grave abuse of discretion” implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction.

Even assuming for the sake of argument that the Comelec committed an error in the exercise of its jurisdiction in the present case, such is not within the province of certiorari, as a remedial measure, to correct.  The only issue that may be taken cognizance of in the present case is whether or not the Comelec committed grave abuse of discretion in rendering the assailed decision.

It is well-settled that an act of a court or tribunal may only be considered to have been done in grave abuse of discretion when the same was performed in a capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction.  The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility (Intestate Estate of Carmen de Luna vs. Intermediate Appellate Court, 170 SCRA 246 [1989]; Litton Mills vs. Galleon Traders, 163 SCRA 489 [1988]; Butuan Bay Export Co. vs. Court of Appeals, 97 SCRA 297 [1980]).  An error of judgment committed in the exercise of its legitimate jurisdiction is not the same as “grave abuse of discretion”.  An abuse of discretion is not sufficient by itself to justify the issuance of a writ of certiorari.  The abuse must be grave and patent, and it must be shown that the discretion was exercised arbitrarily and despotically (Soriano vs. Atienza, 171 SCRA 284 [1989]).

Petitioner posits that the Comelec committed grave abuse of discretion when it annulled the substitution by and proclamation of petitioner, who under Section 77 of the Omnibus Election Code, was allowed to substitute for disqualified the candidate Jose “Pempe” Miranda.  Petitioner also contends that it was an act of grave abuse of discretion for the Comelec to direct the proclamation of private respondent as the winning candidate in the May 11, 1998 election.

Petitioner further faults the Comelec for amending the dispositive portion of its resolution in SPA No. 98-019, which was not elevated to it on review, the same having already attained finality by then.

While it may be conceded that the Comelec stepped overboard and acted in excess of its jurisdiction when it motu proprio took cognizance of SPA No. 98-019, the decision in which was by then already final, it does not necessarily follow that the Comelec also committed grave abuse of discretion in resolving to grant private respondent’s motion for reconsideration by nullifying the substitution of petitioner Joel G. Miranda.  Evidently, what is under review before us in this certiorari proceedings is SPA No. 98-288, and not SPA No. 98-019.

The question to answer is:  will the Comelec’s act which may constitute an excess of jurisdiction in SPA No. 98-019 be tantamount to an act of grave abuse of discretion in its judgment in the separate and distinct case of SPA No. 98-288 as well?  Clearly, non sequitur.  SPA No. 98-288 should be judged on its own accord, and not under the shadow of SPA No. 98-019.

Comelec committed no grave abuse of discretion in resolving SPA No. 98-288 in favor of private respondent.  As earlier pointed out, the result in the dispositive portion of the December 8, 1998 resolution pertaining to the issues involved in SPA No. 98-288 is correct insofar as it annulled the election and proclamation of Joel G. Miranda.  But even assuming for the sake of argument that it is not, still, this supposed error does not constitute grave abuse of discretion which may be annulled and reversed in the present petition for certiorari.

As earlier elucidated too, the crux of the Comelec’s disposition in SPA No. 98-288 is the fact that former candidate Jose “Pempe” Miranda’s certificate of candidacy was denied due course and cancelled.  There is no dispute that the complaint or petition filed by private respondent in SPA No. 98-019 is one to deny due course and to cancel the certificate of candidacy of Jose “Pempe” Miranda (Rollo, pp. 26-31).  There is likewise no question that the said petition was GRANTED without any qualification whatsoever.  It is rather clear, therefore, that whether or not the Comelec granted any further relief in SPA No. 98-019 by disqualifying the candidate, the fact remains that the said petition was granted and that the certificate of candidacy of Jose “Pempe” Miranda was denied due course and cancelled.  In fact, it was not even necessary for the Comelec to reiterate this in its December 8, 1998 resolution.  At best, the Comelec’s motu proprio act of resurrecting SPA No. 98-019 should be treated as a mere surplusage.  The fact that the certificate of candidacy of Joel “Pempe” Miranda was denied due course and cancelled did not depend on the en banc resolution dated December 8, 1998 of the Comelec.  It stems from the fact that the May 5, 1998 resolution GRANTED private respondent’s Petition to Deny Due Course to and/or Cancel Certificate of Candidacy.

Verily, there is clear basis to find that there indeed was a blatant misrepresentation in the instant case and that it was a valid ground for the granting of the petition in SPA No. 98-019.  Also, there appears to be sound basis to rule that a certificate of candidacy which has been denied due course on account of misrepresentation is, in every legal contemplation, no certificate at all.  Ergo, there is nothing to substitute.  If this judgment, rendered in the Comelec’s rightful exercise of its jurisdiction in SPA No. 98-288 may, at all, be considered flawed, this blemish would only constitute an error of judgment and definitely not grave abuse of discretion.  And, of course, errors of judgment may not be corrected by certiorari.

It may be noted that Commissioner Flores raised this supposed error in her dissenting opinion (pp. 93-99, Rollo).  However, her legal opinion failed to convince the majority of the collegiate body and was not adopted by the Commission en banc.  This Court in the present certiorari proceedings cannot substitute its judgment for that of the Comelec without violating the Constitution and the Rules of Court on the matter.  The Comelec’s decision is not subject to appeal to this Court.  We may only strike out a Comelec decision if it was rendered without jurisdiction, in excess thereof, or with grave abuse of discretion amounting to lack of jurisdiction.

The Court cannot accede to the reasoning that this Court should now acquiesce and submit to the sovereign will of the electorate, as expressed by their votes.  We should always be reminded that ours is a government of laws not of men.  If this Court should fold its arms and refuse to apply the law at every “clamor” of the majority of the supposed constituency, where shall order and justice lie?  Without the least intention to degrade, where shall “people power” end, and where shall “law and justice” begin?  Would the apparent results of the canvassing of votes justify this Court in refusing to apply the law instead?  The answers to the foregoing are obvious.  The Court cannot choose otherwise but to exercise its sacred duty to uphold the Constitution and the laws of the Republic for and under which it exists.  Besides, only history will discern whether Jose “Pempe” Miranda’s filing of a certificate of candidacy for a 4th term and the intended substitution by his son was a ploy to perpetrate the Mirandas in power by way of a political dynasty disdained and abhorred by our Constitution which declared:

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

(Article II, 1987 Constitution)

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

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

‘x x x                                   x x x                             x x x

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

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

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

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

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

(pp. 782-783)

Thus, the Comelec committed grave abuse of discretion insofar as it failed to follow the above-cited settled ruling consistently applied by this Court since the case of Labo vs. Comelec (176 SCRA 1 [1989]), Aquino vs. Comelec, 248 SCRA 400 [1995], Reyes vs. Comelec (254 SCRA 514 [1996]); and Nolasco vs. Comelec (275 SCRA 763 [1997]).

Even as the Court cannot accede to the contention that, in view of the election results pointing to petitioner as the electors’ choice for the mayoralty post, we should now close our eyes to the pertinent provisions of the Omnibus Election Code on the matter, nevertheless, the Court duly notes that the said election results point to the fact that private respondent was not then the choice of the people of Santiago City, Isabela.  This Court has no authority under any law to impose upon and compel the people of Santiago City to accept private respondent as their mayor.  The law on succession under section 44 of Republic Act 7160, otherwise known as the Local Government Code, would then apply.  Said provision relevantly states:

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

x x x.

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

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

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

SO ORDERED.

Bellosillo, Mendoza, Quisumbing, Purisima, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.

Davide, Jr., C.J., on leave.

Romero, and Panganiban, JJ., see dissenting opinion.

Puno, and Vitug, JJ., joins dissenting opinion of J. Romero.

Kapunan, and Pardo, JJ., no part.