EN BANC
Panganiban, C.J.,
Puno,
Quisumbing,
Ynares-Santiago,
Sandoval-Gutierrez,
- versus - Carpio,
Austria-Martinez,
Corona,
Carpio-Morales,
Callejo, Sr.,
Azcuna,
Tinga,
Chico-Nazario,
Garcia, and
Velasco, Jr., JJ.
COMMISSION ON
ELECTIONS,
CARLOS IRWIN G. BALDO, JR., Promulgated:
Respondents.
July 17, 2006
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YNARES-SANTIAGO,
J.:
This
is a petition for certiorari and prohibition with prayer for the
issuance of a writ of preliminary injunction and/or temporary restraining order
filed by petitioner Rommel G. Muñoz assailing the Resolution[1]
dated December 15, 2005 of the Commission on Elections (COMELEC) En Banc
in SPC No. 04-124 which affirmed the Resolution[2]
dated October 25, 2004 of the COMELEC First Division granting the petition of
private respondent Carlos Irwin G. Baldo, Jr. to annul petitioner’s
proclamation as mayor of Camalig, Albay.
The
facts of the case are as follows:
Petitioner
and private respondent were candidates for mayor of Camalig, Albay in the
On May 11, 2004, the lawyers of
private respondent objected to the inclusion of the 26 ERs from various
precincts based on the following grounds: 1) eight ERs lack inner seal; 2)
seven ERs lack material data; 3) one ER lack signatures; 4) four ERs lack
signatures and thumbmarks of the members of the Board of Election Inspectors on
the envelope containing them; 5) one ER lack the name and signature of the poll
clerk on the second page thereof; 6) one ER lack the number of votes in words
and figures; and 7) four ERs were allegedly prepared under intimidation.[5]
On
Despite the pendency of the appeal,
petitioner was proclaimed on
On
On
WHEREFORE,
in view of the foregoing, the Commission (FIRST DIVISION) hereby GRANTS the
Petition. The proclamation of x x x ROMMEL
MUñOZ as winning candidate for
mayor of Camalig, Albay is ANNULLED for having been made in an irregular
proceeding and for being precipitate and premature.
SO
ORDERED.[9]
Petitioner’s motion for reconsideration[10]
was denied for lack of merit by the COMELEC En Banc in a Resolution
dated
WHEREFORE, premises considered, the
Commission En Banc hereby DENIES the Motion for Reconsideration filed by x x x Muñoz
for lack of merit. Accordingly, the
ANNULMENT and SETTING ASIDE, by the First Division, of the proclamation of x x
x ROMMEL MUñOZ as the duly
elected Mayor is hereby AFFIRMED.
The Regional Election Director of
Region V, Atty. Zacarias C. Zaragoza, Jr., is hereby DIRECTED to constitute a
new Municipal Board of Canvassers from among the Election Officers in the
Region.
Accordingly, the new Municipal Board
of Canvassers of Camalig, Albay is hereby DIRECTED to:
a)
RECONVENE, and after due notice to all
parties/candidates concerned,
b)
RE-CANVASS all the election returns of Camalig, Albay,
and on the basis thereof,
c)
PREPARE a new Certificate of Canvass, and forthwith
d)
PROCLAIM the winning candidates for Mayoralty position.
SO
ORDERED.[11]
Hence,
petitioner files the instant petition for certiorari and prohibition with
prayer for the issuance of a writ of preliminary injunction and/or temporary
restraining order.
On
Petitioner
relies on the following grounds in support of his petition:
I
THE PUBLIC [RESPONDENT] COMELEC
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
WHEN IT ISSUED THE ASSAILED RESOLUTION DENYING FOR LACK OF MERIT PETITIONER’S
MOTION FOR RECONSIDERATION OF THE 25 OCTOBER [2004] RESOLUTION OF THE PUBLIC
RESPONDENT’S FIRST DIVISION, FOR BEING CONTRARY TO LAW, RULES AND WELL-SETTLED
JURISPRUDENCE;
II
THE PUBLIC RESPONDENT
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
WHEN IT ISSUED THE ASSAILED RESOLUTION ANNULLING AND SETTING ASIDE THE
PROCLAMATION OF PETITIONER AS DULY ELECTED MAYOR OF CAMALIG, ALBAY WITHOUT
FIRST RESOLVING THE PENDING APPEAL FIRST INITIATED, SPC 04-87;
III
THE PUBLIC
RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT ISSUED THE ASSAILED RESOLUTION DIRECTING THE NEW MUNICIPAL
BOARD OF CANVASSERS OF CAMALIG, ALBAY, TO RECONVENE AND RE-CANVASS ALL ELECTION
RESULTS OF CAMALIG, ALBAY, FOR BEING CONTRARY TO LAW.[13]
The foregoing issues may be
summarized into two: 1) whether or not the COMELEC First Division committed
grave abuse of discretion when it decided only the Petition to Annul
Proclamation despite the agreement of the parties to consolidate private
respondent’s appeal from the ruling of the MBC since both cases were raffled to
the same Division and the issue in the latter case was connected to, if not
determinative of, the merits of the former case; and 2) whether or not the
COMELEC En Banc correctly ordered the new MBC to re-canvass all the ERs
and to proclaim the winner on the basis thereof despite the pendency of the
appeal with the First Division.
The petition is partly granted.
Anent the first issue, we find no
merit in petitioner’s contention.
While Section 9, Rule 3 of the
COMELEC Rules of Procedure provides that “when
an action or proceeding involves a question of law and fact which is similar to
or common with that of another action or proceeding, the same may be
consolidated with the action or proceeding bearing the lower docket number,”
however, this rule is only permissive, not mandatory. We have consistently held that the term “may” is indicative of a mere
possibility, an opportunity or an option.
The grantee of that opportunity is vested with a right or faculty which
he has the option to exercise. If he
chooses to exercise the right, he must comply with the conditions attached
thereto,[14] which in
this case require that the cases to be consolidated must involve similar
questions of law and fact.
In the case at bar, the consolidation
of SPC No. 04-087 with SPC No. 04-124 is inappropriate as they do not involve
similar questions of law and fact. SPC
No. 04-087 assails the inclusion of the 26 ERs by the MBC on the ground that
these were incomplete, contained material defects and were prepared under
intimidation, issues which are proper for a pre-proclamation controversy under
paragraphs (b) and (c) of Section 243 of the Omnibus Election Code. On the other hand, SPC No. 04-124 is a
petition for the annulment of petitioner’s proclamation for allegedly being
prematurely done, in violation of Section 36(i) of COMELEC Resolution No. 6669[15]
which instructs the board of
canvassers “not proclaim any candidate as winner unless authorized by the
Commission after the latter has ruled on the objections brought to it on appeal
by the losing party; [a]ny proclamation
made in violation hereof shall be void ab initio, unless the contested returns/certificates
will not affect the results of the elections.” In fine, SPC No. 04-087 pertains to the
preparation of the ERs which is a pre-proclamation controversy, while SPC No.
04-124 refers to the conduct of the MBC in proclaiming the petitioner without
authority of the COMELEC.
Mere pendency of the two cases before the same division of the COMELEC is
not a ground for their outright consolidation.
The discretion to consolidate cases may be exercised only when the
conditions are present. In any event,
the records are bereft of evidence that the parties agreed to consolidate the
two cases or that the COMELEC First Division had granted the same.
Further, we find that the COMELEC
First Division correctly annulled the proclamation of the petitioner. Time and again, this Court has given its
imprimatur on the principle that COMELEC is with authority to annul any canvass
and proclamation which was illegally made.[16] At the time the proclamation was made, the
COMELEC First Division had not yet resolved SPC No. 04-087. Pursuant to Section 36(i) of COMELEC
Resolution No. 6669, which finds basis in Section 20(i) of Republic Act (R.A.) No.
7166,[17]
the MBC should not have proclaimed petitioner as the winning candidate absent
the authorization from the COMELEC. Any
proclamation made under such circumstances is void ab initio.[18]
We likewise do not agree with petitioner’s
contention that the proclamation was valid as the contested ERs will not affect
the results of the election.
Section 20(i) of R.A. No. 7166 reads:
Sec.
20. Procedure in Disposition of Contested Election Returns. –
x x
x x
(i) The board of canvassers shall not proclaim
any candidate as winner unless authorized by the Commission after the latter
has ruled on the objections brought to it on appeal by the losing party. Any proclamation made in violation hereof
shall be void ab initio, unless the contested returns will not adversely
affect the results of the election. (Emphasis supplied)
The phrase “results of the election” is not statutorily
defined. However, it had been
jurisprudentially explained in Lucero v. Commission on Elections[19]
to mean:
[T]he net result of
the election in the rest of the precincts in a given constituency, such that if
the margin of a leading candidate over that of his closest rival in the latter
precincts is less than the total number of votes in the precinct where there
was failure of election, then such failure would certainly affect “the result
of the election.”[20]
Although the Lucero case
involves a failure of election, the definition of “results of election” applies to the disposition of
contested election returns under Section 20(i) of R.A. No. 7166. In both situations, the law endeavors to
determine the will of the people in an expeditious manner in that if the total
number of votes in the precinct where there is a failure of election or in case
of the contested ERs, is less than the lead of a candidate over his closest
rival, the results of the election would not be adversely affected. Hence, a proclamation may be made because the
winning candidate can be ascertained.
Otherwise, a special election must be held or an authorization of the
COMELEC is necessary after ruling on the objections brought to it on appeal by
the losing party in order to determine the will of the electorate. Proclamation
made in violation of the rules is void ab initio as it would be based on
an incomplete canvass of votes. It is
well settled that an incomplete canvass of votes is illegal and cannot be the
basis of a subsequent proclamation. A canvass is not reflective of the
true vote of the electorate unless the board of canvassers considers all
returns and omits none.[21]
In the case at bar, petitioner
obtained a margin of 762 votes over the private respondent based on the canvass
of the uncontested ERs whereas the total number of votes in the 26 contested
ERs is 5,178, which is higher than the 762-lead of the petitioner over the
private respondent. Clearly, the results
of the election would be adversely affected by the uncanvassed returns.
As aptly held by the COMELEC First
Division:
The
votes obtained by petitioner and private respondent tallied in the contested
election returns can not be the basis of the partial proclamation. The objected election returns cannot be
considered, even provisionally, as the true and final result of the elections
in the contested precincts. The
possibility remains, remote thought (sic) it may be that they could be excluded
and the results reflected therein disregarded.
The contested election returns involved 5,178 votes as this is the
number of voters who actually voted in the precincts covered by the
objections. The lead of [petitioner]
over [private respondent] as shown in the uncontested returns was less than
this number. Clearly, the results of the
elections could be adversely affected by the uncanvassed returns. Truly, the Board erred in its perception that
its partial proclamation was warranted.[22]
While the COMELEC En Banc
correctly affirmed the October 25, 2004 Resolution of its First Division in SPC
04-124 insofar as it annulled petitioner’s proclamation, however, we find that
it exceeded its authority and thus gravely abused its discretion when it
ordered the new MBC to re-canvass all ERs even before its First Division could
decide on SPC No. 04-087 filed by private respondent assailing the ruling of
the MBC to include the 26 contested ERs in the canvass.
Section 3 of Article IX-C of the 1987
Constitution provides:
Sec.
3. The Commission on Elections may sit en
banc or in two divisions, and shall promulgate its rules of procedure in
order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and
decided in division, provided that motions for reconsideration of decisions
shall be decided by the Commission en banc.
In Sarmiento v. Commission on
Elections[23] and Zarate
v. Commission on Elections,[24]
the Court similarly held that “election
cases must first be heard and decided by a Division of the Commission,”
and that the “Commission, sitting
en banc, does not have the authority to hear and decide the same at the first
instance.”
Thus, in Acosta v. Commission on
Elections,[25] the
Court held that the COMELEC En Banc violated the foregoing
Constitutional mandate when it affirmed the trial court’s decision that was not
the subject of the special civil action before it, but of the appeal filed by
therein petitioner, which was still undocketed at the time and the parties have
not yet submitted any evidence in relation thereto.
Clearly, by ordering the re-canvass
of all the ERs in SPC No. 04-124, the COMELEC En Banc in effect rendered
a decision on the merits of SPC No. 04-087, which up to the present is still
pending before its First Division, in violation of the rule that it does not
have the authority to hear and decide election cases, including
pre-proclamation controversies, at the first instance. As the proclamation of the winning candidate
has been delayed for more than two years now due to these cases, the COMELEC
First Division is directed to expeditiously resolve SPC No. 04-087, which is
summary in nature.
WHEREFORE, in
view of the foregoing, the petition is PARTLY
GRANTED. The December 15, 2005
Resolution of the COMELEC En Banc in SPC No. 04-124 which affirmed the
annulment and setting aside by its First Division of the proclamation of
petitioner Rommel G. Muñoz as Mayor of Camalig, Albay for being premature, is AFFIRMED with the MODIFICATION that the
order to constitute a new Municipal Board of Canvassers to re-canvass all the
election returns of Camalig, Albay; to prepare a new Certificate of Canvass;
and to declare the winning candidate for mayoralty position is SET ASIDE for having been issued with
grave abuse of discretion. The temporary restraining order issued on
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
REYNATO S. PUNO LEONARDO A. QUISUMBING
Associate
Justice Associate Justice
ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO
Associate Justice Associate Justice
MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA
Associate Justice Associate Justice
Associate Justice Associate Justice
ADOLFO S. AZCUNA DANTE O. TINGA
Associate Justice Associate Justice
MINITA V. CHICO-NAZARIO CANCIO C. GARCIA
Associate
Justice Associate Justice
PRESBITERO
J. VELASCO, JR.
Associate Justice
Pursuant to Section 13, Article VIII of the
Constitution, it is hereby certified that the conclusions in the above Decision
were reached in consultation before the case was assigned to the writer of the
opinion of the Court.
ARTEMIO V. PANGANIBAN
Chief Justice
[1] Rollo,
pp. 42-48.
[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14] Social
Security Commission v. Court of Appeals, G.R. No. 152058, September 27,
2004, 439 SCRA 239, 250.
[15]
General Instructions for Municipal/City/Provincial and District Boards of
Canvassers in connection with the
[16] Abdulakarim D. Utto v. Commission on Elections, 426 Phil. 225, 241(2002).
[17]
AN ACT PROVIDING FOR SYNCHRONIZED NATIONAL AND LOCAL ELECTIONS AND FOR
ELECTORAL REFORMS, AUTHORIZING APPROPRIATIONS THEREFOR, AND FOR OTHER PURPOSES;
Promulgated
[18] Nasser Immam v. Commission on Elections, 379 Phil. 953, 963 (2000).
[19]
G.R. Nos. 113107 & 113509,
[20]
[21] Barbers
v. Commission on Elections, G.R. No. 165691,
[22] Rollo,
pp. 54-55.
[23]
G.R. Nos. 105628, 105725, 105727, 105730, 105771, 105778, 105797, 105919 &
105977, August 6, 1992, 212 SCRA 307, 313-314.
[24]
376 Phil. 722, 727-728 (1999).
[25]
355 Phil. 323, 326-327 (1998).