Cawasa vs Comelec : 140569 : July 3, 2002 : J. Carpio : En Banc

EN BANC

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

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

D E C I S I O N

CARPIO, J.:

The Case

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

“WHEREFORE, premises considered, the instant petition is hereby GRANTED. The results of special elections held on 30 May 2001 covering Precincts Nos. 2A, 2A1/2A2 in Barangay Bangko, Precinct No. 3A in Barangay Cabasaran and clustered Precinct No. 10A/10A1 in Barangay Liangan are hereby ANNULLED.

Accordingly, the proclamation of all winning candidates insofar as the results in the four (4) contested precincts affect the standing of candidates is hereby SET ASIDE until the choice of the people is finally determined through another special election to be authorized, conducted and supervised by this Commission as soon as possible unless restrained.

Finally, the Law Department is hereby directed to investigate the election irregularities that transpired in the Municipality of Nunungan, Lanao del Norte involving the Office of the Election Officer and thereafter, file election offense case/s should there be finding of probable cause and other appropriate cases if warranted under the circumstances.

SO ORDERED.”[3]

The Facts

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

PRECINCT NO. BARANGAY POLLING PLACE REG. VOTERS

2A Bangko Bangko Prim School 200

2A1/2A2 Bangko -do- 254

3A Cabasaran Cabasaran Prim. Sch. 155

10A/10A1 Liangan Liangan Prim. Sch. 236

Total 845

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

“VII. Memorandum of Commissioner Mehol K. Sadain dated 19 May 2001.

REGION MUNICIPALITY/PROVINCE

Region XII Nunu(n)gan, Lanao del Norte

Barangays:

1. Bangco

2. Cabasaran

3. Liangan

REASONS : disagreement of venue of election, tension of BEIs, forcible taking of the ballot boxes and other election paraphernalia.

Scheduled date: May 30, 2001

x x x

In view of the foregoing the Commission RESOLVED, as it hereby RESOLVED, as follows:

1. To schedule the special elections in the foregoing areas on May 26 and 30, 2001 as herein specified;

x x x

Let the Executive Director, Deputy Executive Directors for Operations and all the working Committees implement this resolution.

SO ORDERED.”[4]

As scheduled, the special elections covering the 4 precincts were conducted on May 30, 2001. The special elections for Precincts Nos. 2A, 2A1/2A2 of Barangay Bangko were conducted in the Municipality of Sultan Naga Dimaporo, Lanao del Norte. The special elections for Precinct No. 3A of Barangay Cabasara and Precinct Nos. 10A/10A1 of Barangay Liangan were conducted in the Municipality of Sapad, Lanao del Norte.

The Municipal Board of Canvassers of Nunungan canvassed the election returns of the 4 precincts on May 31, 2001. After the canvassing of the election returns, the Municipal Board of Canvassers proclaimed the winning candidates on the basis of the earlier 36 election returns of the May 14, 2001 regular elections and the 4 election returns of the 4 precincts subject of the special elections.

The May 14, 2001 regular elections and the May 30, 2001 special elections show the following results with respect to the position of mayor:

Sub-Total of Votes Sub-Total of votes Grand

Obtained May 14, 2001 Obtained May 30, Total

Regular Elections 2001 Special Elections

Private Respondent Manamparan 1,197 570 1,767

Petitioner Cawasa 1,283 187 1,470

Margin . . . . . 297

As shown above, during the May 14, 2001 regular elections, the lead of petitioner Cawasa was eighty six (86). After the May 30, 2001 special elections, private respondent Manamparan overcame the margin with a lead of 297 votes.

Petitioner Cawasa was proclaimed mayor of Nunungan and his co-petitioners Maasiral Dampa, H. Ackil Mamantuc, Momolawan Macali, Andar Tali, Allan Sanayon and Amin Sangaran were also proclaimed as councilors of Nunungan.

On June 4, 2001, private respondent Manamparan filed an appeal and petition to annul the proclamation of petitioner Cawasa docketed as SPC No. 01-252. The appeal/petition was dismissed by the Comelec Second Division on September 26, 2001.

In the meantime, on June 8, 2001, private respondent Manamparan filed a petition for “Annulment of Election Results during the May 30, 2001 Special Elections in Precincts No. 2A, 2A1/2A2, 3A, and 10A/10A1 of Nunungan, Lanao Del Norte, and Annulment of Canvass and Proclamation with Prayer for Issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction” docketed as SPC Case No. 01-276. Impleaded as respondents were petitioner Cawasa and the Municipal Board of Canvassers composed of Mario Allan Ballesta,[5] Nedalyn S. Sebial[6] and Iluminada O. Pegalan.[7]

As mentioned at the outset, on October 24, 2001, the Comelec en banc promulgated a resolution annulling the results of the special elections of the 4 precincts (Precinct Nos. 2A, 2A1/2A2, 3A, 10A/10A1) held on May 30, 2001 conducted in the municipalities of Sultan Naga Dimaporo and Sapad. The Comelec en banc also annulled the proclamation of all winning candidates insofar as the results in the 4 contested precincts affect the standing of candidates.

The Comelec Ruling

In granting the petition, the Comelec held that “the special elections in the 4 contested precincts were not genuinely held and resulted in failure to elect on account of fraud. ” The Comelec’s ruling is summarized as follows:

First. The Comelec clarified that the Comelec en banc can take cognizance of the petition for annulment of election results in accordance with Section 4 of RA 7166[8], otherwise known as the “Synchronized Elections Law of 1991.” It explained that while the proclamation of a candidate has the effect of terminating pre-proclamation issues, a proclamation that is a result of an illegal act is void and cannot be ratified by such proclamation and subsequent assumption of office. The Comelec declared that there is no forum-shopping considering that SPC 01-252 pending before the Second Division of the Comelec is a pre-proclamation controversy,[9] while SPC 01-276 pending before the Comelec en banc is a case for annulment of election results.

Second. The Comelec found that the special elections were not held in the designated polling places in Nunungan but were transferred to the municipalities of Sapad and Sultan Naga Dimaporo without any authority from the Comelec. According to the Comelec, the Election Officer, who happened to be the chairman of the Municipal Board of Canvassers, caused the transfer of the polling places without asking permission from the Comelec. The transfer was likewise in violation of the due process requirements found in Section 153 of the Omnibus Election Code. Moreover, it ruled that the unauthorized transfer of a polling place is also punishable as an election offense under Section 261(z) (17) of the Same Code. We quote the pertinent portion of the Comelec ruling thus:

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

x x x x x x x x x

In the instant case, the Election Officer, who happened to be the Chairman of the respondent Board, also caused the transfer of the polling places without asking the permission of this Commission and in violation of the due process rule, thereby, making the afore-quoted Section 153 inutile.

Considering these unwarranted acts of the official of this Commission, the sanctity of the special elections therefore is suspect. Nothing in the records could show that notice was given to the political candidates and to the registered voters affected by the special elections of the said transfer of polling places. Who therefore voted on the assailed special elections given these circumstances? This issue has never been squarely addressed by the respondents.

We take judicial notice of the distance of the venues of voting which are more or less 25 kilometers away from Nunungan, far from being accessible to the voters given the time and material constraints. The panorama of what is supposed to be a free and honest exercise of democracy is indeed rendered myopic by fraud perpetrated by no other than the COMELEC officials concerned.”[10]

Third. The Comelec found that the Municipal Board of Canvassers, headed by Mario Allan Ballesta, preposterously feigned ignorance of the fact that during the said special elections, members of the Philippine Army 26^th Infantry Battalion served as election inspectors without authority from the Comelec.

Hence, the instant petition.

The Issues

Petitioners argue that the COMELEC en banc Resolution was issued without jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction for the following reasons:

"1. The proclamation of the six (6) petitioners Maasiral Dampa, H. Ackil Mamantuc, Momolawan Macali, Andar Tali, Allan Sanayon, and Amin Sangaran were annulled and set aside in violation of due process of law. They were not impleaded as respondents in the petition to annul the election. They were not notified of the proceedings. x x x.

2. The transfer of the venue of the special elections at Sultan Naga Dimaporo and Sapad and the appointment of military personnel as members of the Board of election Inspectors of the four (4) precincts were agreed upon by the private respondent and the municipal candidates and their respective political parties.

3. The election officer in the exercise of his discretion has authority to transfer the venue of the special elections in view of the agreement of the political parties and municipal candidates on the transfer of the venue of the special elections. x x x.

4. There is substantial compliance with the provisions of Sec. 153 of the Omnibus Election Code. The political parties and municipal candidates of the municipality Nunungan were notified and in fact agreed to the transfer of venue of the special elections.

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

Simply put, the issues raised boil down to whether or not : (1) the transfer of the polling places to the adjacent municipalities is legal; (2) the appointment of military personnel as members of the board of election inspectors is legal; and (3) the petitioners were accorded due process prior to the promulgation of the assailed resolution in SPC No. 01-276.

The Court’s Ruling

The petition is bereft of merit.

First Issue: Legality of the Transfer of Polling Places and Appointment of Military Personnel as Members of the Board of Election Inspectors

There is no dispute that the venue of the special elections was transferred to the adjacent municipalities of Sultan Naga Dimaporo and Sapad in lieu of the regular polling places located in barangays Bangko, Cabasaran and Liangan. There is likewise no dispute that military personnel were appointed as members of the Board of Election Inspectors (“BEI” for brevity) in the 4 precincts. Petitioners and private respondent Manamparan agree that the 4 precincts covered by the special elections with a total of 845 registered voters will affect the result of the elections.

Petitioners insist on the validity of the conduct of the special elections claiming that the political parties and the municipal candidates were notified and in fact agreed on the transfer of venue and the appointment of military personnel as members of the BEI. They contend that there is substantial compliance with the provisions of Section 153 of the Omnibus Election Code considering that the election officer as the representative of the Comelec reported the matter to the Provincial Election Supervisor of Lanao del Norte and the transfer was not disapproved by the Comelec. Petitioners claim that an “election officer has authority to transfer the polling places even four days before the scheduled election” citing Balindong vs. Comelec[12] and Alonto vs. Comelec.[13]

Petitioners fail to persuade. Sections 152, 153 and 154 of the Omnibus Election Code shed light on this matter, to wit:

SEC. 152. Polling Place. – A polling place is the building or place where the board of election inspectors conducts its proceedings and where the voters shall cast their votes.

SEC. 153. Designation of polling places. – The location of polling places designated in the preceding regular election shall continue with such changes as the Commission may find necessary, after notice to registered political parties and candidates in the political unit affected, if any, and hearing: provided, That no location shall be changed within forty-five days before a regular election and thirty days before a special election or a referendum or plebiscite, except in case it is destroyed or it cannot be used.

SEC. 154. Requirements for polling places. –Each polling place shall be, as far as practicable, a ground floor and shall be of sufficient size to admit and comfortably accommodate forty voters at one time outside the guard rail for the board of election inspectors. The polling place shall be located within the territory of the precinct as centrally as possible with respect to the residence of the voters therein and whenever possible, such location shall be along a public road. No designation of polling places shall be changed except upon written petition of the majority of the voters of the precinct or agreement of all the political parties or by resolution of the Commission upon prior notice and hearing.

A public having the requirements prescribed in the preceding paragraph shall be preferred as polling place.[14]

The transfer was made not only in blatant disregard of Comelec Resolution No. 4360 issued on May 21, 2001 specifying the polling places but also Sections 153 and 154 of the Election Code. As clearly provided by the law, the location of polling places shall be the same as that of the preceding regular election. However, changes may be initiated by written petition of the majority of the voters of the precinct or agreement of all the political parties or by resolution of the Comelec after notice and hearing. But ultimately, it is the Comelec which determines whether a change is necessary after notice and hearing.

The Comelec has unequivocally stated that “nothing in the records showed that notice was given to the political candidates and registered voters affected by the transfer.” Private respondent Manamparan has categorically denied petitioners’ claim that all the political parties and municipal candidates agreed to the transfer of venue. The Court discerns no substantiation of petitioners’ claim regarding the agreement to transfer. There is then no cogent reason for us to disturb the findings of the Comelec on this matter. Indeed, the factual findings of the Comelec supported by substantial evidence shall be final and non-reviewable.[15] Thus, it has been held that findings of fact of the Comelec based on its own assessments and duly supported by evidence, are conclusive upon this Court, more so, in the absence of a substantiated attack on the validity of the same.[16] Moreover, there is no question that the transfer of venue was made within the prohibited period of thirty days before the special election.

Reliance on Balindong vs. Comelec[17] and Alonto vs. Comelec[18] is misplaced. Alonto involved an entirely different factual scenario from the instant case. In said case, the Court upheld the validity of the transfer of the counting and tallying of the votes after the closing of the polls from the precincts to the PC camps. The Court held that the transfer was dictated by necessity and authorized by the Comelec directly or by its provincial representative. The Court explained that “while it is highly desirable that the authority for the transfer of the counting should be directly authorized by the Comelec itself, the latter’s denial of the petitioners’ motion for reconsideration where this legal point was advanced was tantamount to a validation of the authority issued by its provincial representatives.”

On the other hand, the Court in Balindong[19] held that the mere fact that the transfer of polling place was not made in accordance with law, particularly Secs. 152-154 of the Omnibus Election Code, does not warrant a declaration of failure of election and the annulment of the proclamation of the winning candidate, because the number of uncast votes will not affect the result of the election. In the case at bar, there is no dispute that the election returns from the 45 precincts will affect the results of the elections.

Next, the appointment of military personnel as members of the BEI is another grave electoral irregularity that attended the special elections held on May 30, 2001. There was absolutely no legal basis for the appointment of military personnel as members of the BEI. Verily, the appointments were devoid of any justification other than the bare assertion, again, that “the political parties and municipal candidates agreed on the said arrangement.” The pertinent provisions of the Omnibus Election Code regarding the composition, appointments and substitution of the members of the BEI are quoted as follows:

SEC. 164. Composition and appointments of board of election inspectors. - At least thirty days before the date when the voters list is to be prepared in accordance with this Code, in the case of a regular election or fifteen days before a special election, the Commission shall, directly or through its duly authorized representatives, constitute a board of election inspectors for each precinct to be composed of a chairman and a poll clerk who must be public school teachers, priority to be given to civil service eligibles, and two members, each representing the two accredited political parties. The appointment shall state the precinct to which they are assigned and the date of the appointment.

SEC. 165. Oath of the members of the board of election inspectors. - The members of the board of election inspectors, whether permanent, substitute or temporary, shall before assuming their office, take and sign an oath upon forms prepared by the Commission, before an officer authorized to administer oaths or, in his absence, before any other member of the board of election inspectors present, or in case no one is present, they shall take it before any voter. The oaths shall be sent immediately to the city or municipal treasurer. (Sec. 157, 1971 EC)

SEC. 166. Qualification of members of the board of election inspectors. - No person shall be appointed chairman, member or substitute member of the board of election inspectors unless he is of good moral character and irreproachable reputation, a registered voter of the city or municipality, has never been convicted of any election offense or of any other crime punishable by more than six months of imprisonment, or if he has pending against him an information for any election offense. He must be able to speak and write English or the local dialect. (Sec. 114, 1978 EC)

x x x

SEC. 170. Relief and substitution of members of the board of election inspectors. - Public school teachers who are members of the board of election inspectors shall not be relieved nor disqualified from acting as such members, except for cause and after due hearing.

x x x

Section 13 of Republic Act No. 6646[20] modified Section 164 of the Omnibus Election Code. Said section reads:

SEC. 13. Board of Election Inspectors. – The board of election inspectors to be constituted by the Commission under Section 164 of Batas Pambansa Blg. 881 shall be composed of a chairman and two (2) members, one of whom shall be designated as poll clerk, all of whom shall be public school teachers, giving preference to those with permanent appointments. In case there are not enough public school teachers, teachers in private schools, employees in the civil service, or other citizens of known probity and competence who are registered voters of the city or municipality may be appointed for election duty.

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

Second Issue: Denial of Due Process

Petitioners claim that there was a clear violation of due process of law because a hearing was not conducted on the circumstances of the special election. Petitioners further claim that the Comelec rendered the assailed resolution without requiring its field officers, specifically, the election officer, provincial election supervisor and the regional election director to explain the transfer of the polling places. Lastly, petitioners point out that none of the eight (8) proclaimed members of the Sangguniang Bayan[22] of Nunungan, Lanao del Norte and the proclaimed Vice Mayor were notified and impleaded as respondents in the petition to annul the election results citing Velayo vs. Commission on Elections.[23]

Section 4 of Republic Act No. 7166 or “The Synchronized Elections Law of 1991” provides that the Comelec sitting en banc by a majority vote of its members may decide, among others, the declaration of failure of election and the calling of special elections as provided in Section 6 of the Omnibus Election Code. Said Section 6, in turn, provides as follows:

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

A prayer to annul election results, as in the instant case, and a prayer to declare failure of elections based on allegations of fraud, terrorism, violence or analogous causes, are actually of the same nature and the Election Code denominates them similarly.[24] The Comelec may exercise the power to annul election results or declare a failure of election motu proprio[25] or upon a verified petition.[26] The hearing of the case shall be summary in nature.[27] A formal trial-type hearing is not at all times and in all instances essential to due process – it is enough that the parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present evidence on which a fair decision can be based.[28] In fine, a trial is not at all indispensable to satisfy the demands of due process.

The petition was heard by the Comelec en banc on June 27, 2001. During the said hearing, the Comelec directed the parties, as agreed upon, to submit their respective memoranda within five (5) days from date and after which, the case shall be submitted for resolution. Petitioners were duly heard through their pleadings, thus, there is no denial of procedural due process to speak of. Moreover, contrary to the claim of petitioners, the Municipal Board of Canvassers of Nunungan, including Election Officer Ballesta, were summoned to the hearing held on June 27, 2001 and furnished a copy of the petition.

The pre-conditions for declaring a failure of election are: (1) that no voting has been held in any precinct or precincts because of force majeure, violence, terrorism, fraud or other analogous causes and (2) that the votes not cast therein are sufficient to affect the results of the elections. The concurrence of these two circumstances justifies the calling of special elections.[29] Here, the Comelec found that the special elections were vitiated by fraud due to the illegal transfer of the polling places and the appointment of military personnel as members of the BEI. Inevitably, the Comelec could not ascertain who voted during the special elections. The circumstances were such that the entire electoral process was not worthy of faith and credit, hence, in practical effect no election was held.[30]

In Velayo vs. Commission of Elections,[31] the Court held that “the non-inclusion of a proclaimed winner as respondent in a pre-proclamation controversy and his lack of notice of the proceedings in the Comelec which resulted in the cancellation of his proclamation constitute clear denial of due process.” In the Velayo case, the proclaimed mayor and the members of the Municipal Board of Canvassers were not impleaded in the pre-proclamation cases brought before the Comelec. However, in this case, petitioner Cawasa and the members of the Municipal Board of Canvassers were in fact impleaded, notified and even heard by the Comelec in SPC No. 01-276. At this late stage, public interest in the speedy disposition of this case will only be further derailed by the re-opening of the case for the benefit of petitioners-councilors who did not advance any new and substantial matters in this petition warranting the declaration that the special elections were valid and untainted by fraud.

WHEREFORE, finding no grave abuse of discretion amounting to lack or excess of jurisdiction on the part of public respondent Commission on Elections, the instant petition is hereby DISMISSED. The resolution of the Commission on Elections en banc in SPC No. 01-276 dated October 24, 20001 is hereby AFFIRMED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, and Corona, JJ., concur.

Quisumbing, J., on leave.