Republic of the
SUPREME COURT
EN BANC
ABDUSAKUR M. TAN and G.R. Nos. 166143-47
BASARON BURAHAN,
Petitioners, Present:
PANGANIBAN,
CJ,
- v e r s u s - PUNO,
QUISUMBING,
YNARES-SANTIAGO,
COMMISSION ON ELECTIONS, SANDOVAL-GUTIERREZ,
THE PROVINCIAL BOARD OF CARPIO,
CANVASSERS OF SULU, THE AUSTRIA-MARTINEZ,
MUNICIPAL BOARDS OF
CANVASSERS OF MAIMBUNG, CARPIO MORALES,
LUUK, TONGKIL, PANAMAO, CALLEJO,
SR.,
ALL
BENJAMIN LOONG and NUR-ANA TINGA,
SAHIDULLA, CHICO-NAZARIO,
Respondents. GARCIA, and
x-------------------------------------------------x VELASCO, JR., JJ.
BENJAMIN
T. LOONG, G.R.
No. 166891
Petitioner,
- v e
r s u s -
COMMISSION ON ELECTIONS Promulgated:
(First Division) and YUSOP H. JIKIRI,
Respondents.
x-----------------------------------------------------------------------------------------x
D E C I S I O N
VELASCO, JR., J.:
We
have found it
necessary to regulate liberty;
so we find it necessary to regulate competition.[1]
—former U.S. Supreme Court Justice Louis Dembitz Brandeis
Election
cases, indeed, “involve not only the adjudication of the private interests of
rival candidates, but also the paramount need of dispelling the uncertainty
which beclouds the real choice of the electorate x x x.”[2] The public nature of election cases is
ensconced in the people’s suffrage—which encompasses public choices and
interests. In their capacity as having
sovereign authority, the Filipino people are accorded the constitutional right
of suffrage to select the representatives to public office. To ensure that Filipinos fully and freely
enjoy this right and that their choices are recognized, the right of suffrage
must be safeguarded. Courts should thus
be vigilant in protecting this constitutional right so that the people’s voice
would not be stifled.
The
Case
Before us are
two petitions under Rule 65 of the Rules of Court. The first is the Petition for Certiorari and Prohibition with
Prayer for the Issuance of a Writ of Preliminary Injunction and/or a Temporary
Restraining Order[3]
under G.R. Nos. 166143-47 which seeks to set aside the October 18, 2004 Joint
Resolution[4]
of the COMELEC en banc which rejected
the prayer for declaration of failure of elections by petitioners Tan and
Burahan in SPA Nos. 04-336, 04-337, 04-339, and 04-340, and by Yusop Jikiri in
SPA No. 04-334 which is not under consideration in this petition. The other is a Petition for Certiorari with
Prayer for a Temporary Restraining Order and/or Writ of Preliminary Injunction[5]
under G.R. No. 166891 which seeks to annul and set aside the
Through the Supreme Court en banc
The
Facts
Petitioners
Abdusakur M. Tan and Basaron Burahan were the gubernatorial and vice-gubernatorial
candidates, respectively, of
Petitioners Tan and Burahan alleged systematic fraud, terrorism, illegal schemes, and machinations allegedly perpetrated by private respondents and their supporters resulting in massive disenfranchisement of voters. Petitioners submitted various affidavits and photographs to substantiate their allegations:[13]
In SPA No. 04-336 (Maimbung, Sulu), petitioners submitted the affidavits of poll watchers Ramil P. Singson, Otal Ibba, Sahak P. Ibrahim, Randy J. Jurri, Hayudini S. Jamuri, and municipal councilor candidate Jumdani Jumlail.[14]
In SPA No. 04-337 (Luuk, Sulu), petitioners submitted the affidavits of poll watchers Nijam Daud, Arsidan Abdurahman, Bensali Kamlian, Gamar Basala, Najir Ahamad, Apal A. Emamil, Say Abdurasi, Faizal Husbani, Sikal Lastam, Muktar Ailadja, Rujer Abdulkadil, Jurmin Suraid, Bakkar Jamil, Musid Madong, Nasib Nurin, Jul-Islam Benhar, Basiri Hamsah, and registered voters Sahaya Muksan, Juratol Asibon, Nuluddin Malihul, Tantung Tarani, Jul Ambri Abbil, and Harahun Arola.[15]
In SPA No. 04-339 (Tongkil, Sulu), petitioners submitted the affidavits of poll watchers Talib Usama, Lingbird Sabtal, Yusop Mirih, Kasim Akol, Ammad Madon, Dayting Imamil, Nonoy T. Kiddang, Nilson Bakil, Boy Sabtal, Reagan Bensali, Alguiser Abdulla, Gaming Talib, Munir Ukkang, Abdurahim Sairil, Alcafon Talib, Rosefier Talib, Julbasil Sabtal, Darwin Lalik, Merinisa T. Abdurasid, Lim Tingkahan, and Mujina G. Talib,[16] over-all coordinators of Tongkil mayoralty candidate Olum Sirail.
Affiant poll
watcher Merinisa T. Abdurasid attested to taking seven (7) photographs[17]
allegedly showing electoral irregularities.
In SPA No. 04-340 (Panamao, Sulu), petitioners submitted the affidavits of poll watchers Amina D. Undug, Dinwaza Undug, Sitti Aiza Undug, Amina Undug, Indah Taas Undug, Fadzrama Aukasa, Moreno Adjani, Nurhaida S. Undug, Nurjaina S. Abubakar, and Altimir A. Julhani.[18]
Affiant poll watcher Altimir A. Julhani attested to taking five (5) photographs[19] allegedly showing electoral irregularities.
Petitioners submitted additional affidavits and photographs, particularly the affidavits of Maimbung, Sulu poll watchers Aminkadra Abubakar, Abdulla Abubakar, Mhar Sappari, Nasirin Al-Najib, Marvin Saraji, Naufal Abubakar, Rhino Gumbahali, Basik Abton, Abzara H. Mudahi, Ayatulla Jakaria, Uttal Iba, Sin-sin Buklasan, Mardison I. Bakili, Abdurasmin Abdurahman, Binnar Pitong, Mahrif Sumlahani, Albinar S. Asaad, including that of photojournalist Alfred Jacinto-Corral[20] who attested taking nine (9) photographs[21] showing election irregularities.
Likewise, a report was submitted by Philippine Army 1Lt. Arthur V. Gelotin, Commanding Officer of Alpha Company, 563rd Infantry (Matapat) BN 11D, Tanduh Patong, Maimbung, Sulu, which allegedly showed massive failure of voters to cast their ballots.[22]
Meanwhile, the
COMELEC Second Division, acting on the Petitions for Declaration of Failure of
Elections, issued its May 17, 2004 Order suspending the proclamation of the
winning gubernatorial candidate of Sulu,[23]
but lifted the suspension three (3) days later.
In the May 20, 2004 lifting Order, the COMELEC Second Division directed
the Sulu PBOC to complete the canvass of votes and “to bring all canvass
documents to
Even before the
filing of the four (4) aforesaid petitions, Abdusakur M. Tan had filed four (4)
other petitions, one before the Municipal Board of Canvassers of Parang, Sulu
for the exclusion of election returns from several precincts
docketed as SPA No. 04-138, and the other three before the Provincial Board of
Canvassers of Sulu to exclude certificates of canvass
from Luuk, Panamao, and Parang docketed as SPA Nos. 04-163, 04-164 and 04-165,
respectively. All these petitions were
dismissed by the Boards concerned, prompting petitioner Tan to file an appeal
with the COMELEC First Division which issued an Order[25]
on
However, on the same day that the COMELEC First Division issued the said Order, private respondent Benjamin Loong was proclaimed the winning governor of Sulu and he assumed office. This prompted petitioner Tan to file a Petition for Annulment of the Proclamation with the COMELEC First Division, docketed as SPA No. 04-205.
On
In the meantime,
on
The COMELEC en
banc, through its
Ruling of the
Commission on Elections En Banc in
SPA Nos. 04-334,
04-336, 04-337, 04-339, and 04-340
On
The COMELEC en banc
ruled that there was no failure of election in the subject municipalities of
Sulu. It reasoned that it could only
exercise the extraordinary remedy of declaring a failure of election in the
three instances mentioned in Carlos v. Angeles,[30]
in relation to Section 6 of the Omnibus Election Code[31]
and Section 4 of RA 7166, which in gist are:
(1) the
election is not held, (2) the election is suspended, or (3) the election
results in a failure to elect.
In dismissing the petitions, the COMELEC held that none of the grounds relied upon by petitioners fall under any of the three instances justifying a declaration of failure of election. First, the COMELEC found that based upon the evidence presented by the parties, a valid election was held as scheduled. Second, there was no suspension of the election as voting continued normally. Third, private respondent Loong was elected by a plurality of votes as proclaimed by the Provincial Board of Canvassers (PBC).
While the
authenticity and integrity of the election returns from the municipalities of
Luuk and Panamao were questioned by petitioner Tan, those of Maimbung and
Tongkil were left undisturbed throughout the preparation, transmission, custody,
and canvass of the returns. Petitioners alleged that
fraud and terrorism took place in Luuk and Panamao because voters were forced
to affix their signatures and thumbprints; and the ballots in Luuk and Panamao
were filled out by respondents’ poll watchers and supporters.
Citing Grand Alliance for Democracy v. COMELEC,[32] the COMELEC en banc ruled that the grounds raised by petitioners were best ventilated in an election protest.
The COMELEC did not
give credence to petitioners’ evidence in support of their allegations of fraud
and terrorism since their evidence consisted mainly of affidavits executed by
their own poll watchers. The Commission
considered the affidavits self-serving and insufficient to annul the results of
the election. Besides, it pointed out
that petitioners presented only a single affidavit of an alleged
disenfranchised voter. Thus, on
However, the Joint
Resolution was not concurred in by COMELEC Commissioner Mehol K. Sadain who
signed it with a note: “DISSENTING. DISSENTING OPINION TO FOLLOW.” Subsequently, Commissioner Sadain submitted
his Dissenting Opinion[33]
on
This basis of
Commissioner Sadain’s Dissenting Opinion, however, was not raised by the
petitioners in their
The Sadain Dissenting
Opinion was released on
Denial by the COMELEC
First Division of
Petitioner
Loong’s motion to dismiss in EPC No. 2004-66
After the
dismissal of the petitions to declare failure of elections on
On December 14, 2004, the COMELEC First Division issued the first assailed Order[38] denying petitioner Loong’s motion to dismiss, ruling that the protest was not filed out of time as there were still pending pre-proclamation cases before it, the result of which could affect Loong’s motion. It further held that it did not matter that these pre-proclamation cases were not filed by respondent Jikiri but by another candidate, Abdusakur M. Tan, as Section 248 of the Omnibus Election Code does not require that the petition to annul or suspend the proclamation be filed by the protestant. Thus, the COMELEC First Division concluded that these pending pre-proclamation cases would not prevent respondent Jikiri from converting his protest ad cautelam into a regular one, and which fact would not preclude the Commission from deciding the election protest case. After all, the COMELEC First Division noted that pre-proclamation controversies and election protest cases have different causes of action, and thus, could proceed independently. Finally, the COMELEC First Division directed the concerned parties to take the appropriate steps to address the financial and personnel requirements for the protest and counter-protest proceedings.
Subsequently,
petitioner Loong’s Motion for Reconsideration[39]
was denied through the second assailed
Meanwhile, on
The
Issues
In G.R. Nos. 166143-47, petitioners Tan and Burahan raise the following issues for our consideration:
Whether [or not] the respondent COMELEC
committed grave abuse of discretion amounting to lack or excess of
jurisdiction, in dismissing the consolidated petitions despite the evident
massive disenfranchisement of the voters.
Whether [or
not] the proclamation of the respondents, albeit patently null and void,
bars the filing of the instant petitions for declaration of failure of
elections.[42]
In G.R. No. 166891, petitioner Loong simultaneously raises the following issues before us:
Whether
[or not] the COMELEC has jurisdiction to entertain electoral protests filed
beyond ten (10) days after the proclamation of the results of an election for a
given provincial office.
Whether
[or not] the COMELEC has jurisdiction to entertain simultaneously
pre-proclamation controversies and electoral protests.
The
Court’s Ruling
The petitions are bereft of merit.
G.R. Nos. 166143-47
Preliminary
Issue: Timeliness of the Petition
Petitioners Tan
and Burahan maintain that the 30-day reglementary period to file the petition
for certiorari only started to
run on November 24, 2004, the day they received a copy of the November 23, 2004
Dissenting Opinion, which completed the Joint Resolution. Moreover, they contend that the assailed
October 18, 2004 Joint Resolution received by petitioners on
On the other hand, both the Office of the Solicitor General (OSG) and private respondent Loong strongly assert that the instant petition was filed out of time as the start of the reglementary period to file the appeal must be counted from the receipt of the October 18, 2004 Joint Resolution—since it is the judgment and not the Sadain Dissenting Opinion being assailed. They also point out that the withheld Dissenting Opinion is only Commissioner Sadain’s view and, thus, neither is it essential to nor does it affect the ruling of the COMELEC en banc.
Constitution and Rules silent on when a Decision is Complete
To resolve the preliminary procedural matter on whether the appeal was filed on time, the Court must first determine whether a separate dissenting opinion in an election case before the COMELEC is a part or component of a resolution or decision.
Section 13, Article VIII of the 1987 Constitution provides:
The conclusions of the Supreme Court in
any case submitted to it for decision en
banc or in division shall be reached in consultation before the case is
assigned to a Member for the writing of the opinion of the Court. A certification to this effect signed by the
Chief Justice shall be issued and a copy thereof attached to the record of the
case and served upon the parties. Any
Member who took no part, or dissented, or
abstained from a decision or resolution, must state the reason
therefor. The same requirement shall be
observed by all lower collegiate courts.
(Emphasis supplied)
This constitutional directive was adopted in Section 1, Rule 18 on Decisions of the COMELEC Rules of Procedure which states:
Section
1. Procedure in
Making Decisions.—The conclusions of the Commission in any case
submitted to it for decision en banc
or in Division shall be reached in consultation before the case is assigned by
raffle to a Member for the writing of the opinion of the Commission or the
Division and a certification to this effect signed by the Chairman or the
Presiding Commissioner, as the case may be, shall be incorporated in the
decision. Any Member who took no part,
or dissented, or abstained from a decision or resolution must state the reason
therefor.
Every decision shall express therein
clearly and distinctly the facts and the law on which it is based.
The above-quoted Sections from the Constitution and the COMELEC Rules of Procedure are silent as to what constitutes a decision—whether it is solely the majority opinion or whether the separate concurring or dissenting opinions are considered integral parts of it.
Decision complete with the
required majority opinion
The Court rules that a resolution or decision of the COMELEC is considered complete and validly rendered or issued when there is concurrence by the required majority of the Commissioners. Section 7 of Article IX-A, 1987 Constitution pertinently provides that:
SEC. 7. Each
Commission shall decide by a majority vote of all its Members any case
or matter brought before it within sixty days from the date of its submission
for decision or resolution. A case or
matter is deemed submitted for decision or resolution upon the filing of the
last pleading, brief, or memorandum required by the rules of the Commission or
by the Commission itself. Unless
otherwise provided by this Constitution or by law, any decision, order, or
ruling of each Commission may be brought to the Supreme Court on certiorari by
the aggrieved party within thirty days from receipt of a copy thereof.
There is nothing from the above constitutional proviso nor in the COMELEC Rules of Procedure that requires the submission of a dissenting opinion before a decision or resolution concurred by the required majority is validly rendered, i.e. complete. Put otherwise, with the required majority vote, the majority opinion embodied in a decision or resolution duly promulgated is validly rendered and issued despite dissent or inhibition of the minority, and even if the reason for the dissent or inhibition is submitted much later than its promulgation.
Moreover, the dissenting opinion, which is only Commissioner Sadain’s view, is not essential to nor does it affect the ruling of the COMELEC en banc. Separate opinions not approved by the required majority of the court members, whether they be concurring or dissenting opinions, must be distinguished from the opinion of the court.[43] Verily, the joint resolution is the ruling being assailed and not the dissenting opinion. It is clear that, not being essential to the assailed joint resolution, the dissenting opinion merely serves to comply with the constitutional proviso that any member who dissented from a decision or resolution must state the reason therefor.[44]
In sum, the 30-day reglementary period must be reckoned from the receipt of the decision, order or resolution and not from the receipt of a dissenting opinion issued later. In the instant case, the dissenting opinion was submitted and promulgated 36 days after the assailed joint resolution.
Sections 3 and 4, Rule 18 of COMELEC Rules
of Procedure:
Unconstitutional
Under the COMELEC Rules of Procedure there is an instance when the 30-day reglementary period to appeal is reckoned other than the date of receipt of the resolution or decision. This is when an extended opinion is reserved. The 30-day reglementary period starts to run only upon the receipt by the parties of the reserved extended opinion released within 15 days from the promulgation of the resolution or decision. Sections 3 and 4 of Rule 18, COMELEC Rules of Procedure provides thus—
Section 3. When Extended Opinion Reserved.—When in a given resolution or decision the writing of
an extended opinion is reserved, the extended opinion shall be released within
fifteen (15) days after the promulgation of the resolution.
Section 4. Period to Appeal or File Motion for Reconsideration When Extended Opinion
is Reserved.—If an extended opinion
is reserved in a decision or resolution, the period to file a petition for certiorari with the Supreme Court or to
file a motion for reconsideration shall begin to run only from the date the aggrieved party received a copy of the extended
opinion. (Emphasis supplied.)
From the
above-quoted rules, it may be considered that the dissenting opinion duly noted
“to follow” in the joint resolution is an extended reserved opinion. But such won’t serve to help petitioners’
position. While we are sympathetic to
the predicament of petitioners, we however declare that Sections 3 and 4 of
Rule 18, COMELEC Rules of Procedure are unconstitutional and must perforce be
struck down. The 1987 Constitution, under Article IX-A, Section 6[45]
and Article IX-C, Section 3,[46]
grants and authorizes the COMELEC to promulgate its own rules of
procedures as long as such rules concerning pleadings and practice do not diminish,
increase or modify substantive rights;
on the other hand, this Court has a rule-making power provided in
Article VIII, Section 5, paragraph (5)[47]—the
constitutional prerogative and authority to strike down and disapprove rules
of procedure of special courts and quasi-judicial bodies.
Thus, we exercise this power and authority in voiding Sections 3 and 4 of Rule 18, COMELEC Rules of Procedure for contravening Article IX, Section 7 of the 1987 Constitution which pertinently provides:
Sec. 7. x x x Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each
Commission may be brought to the Supreme Court on certiorari by the
aggrieved party within thirty [30] days from receipt of a copy thereof
(emphasis supplied).
The above quoted constitutional proviso clearly posits the unequivocal scenario that a decision, order, or ruling is issued complete with separate opinions duly incorporated upon its promulgation. It does not envision what Sections 3 and 4 of Rule 18 provide—an unwarranted extension of the period to file an appeal on certiorari.
Besides, striking down Sections 3 and 4 of Rule 18 will obviate future confusion as to when the 30-day reglementary period is reckoned and forestall unnecessary delays in the processing and adjudication of election cases and proceedings. It will reinforce the correct judicial practice—which public respondent COMELEC practices—of promulgating all separate opinions together with the majority opinion. Thus, in line with this ruling, we leave it to respondent COMELEC to promulgate a more orderly rule pursuant to its rule making power under the Constitution to ensure that the majority and separate opinions are collated and appended together to constitute a complete decision, order, or ruling before it is promulgated by the clerk of court and to devise a procedure that makes certain of the prompt submission of the reserved extended or separate opinion within a fixed period.
Petition filed out of time
Foregoing
considered, the instant petition was clearly filed out of time. Having received the joint resolution on
Separate opinions submitted
before promulgation
Nonetheless, it has to be made clear that
decisions, resolutions or orders of collegiate courts must have separate
concurring or dissenting opinions appended to the majority opinion before these
are promulgated. And it is the
responsibility of the clerk of court to ensure that these separate opinions are
submitted within the required period so that the decision, resolution or order
is timely promulgated.
There are two (2) salient reasons why this
principle must be followed, to wit:
First, both parties
deserve to know all the views of the collegiate court who voted for the
majority and minority opinions and the reasons why they voted in such manner,
especially the losing party deciding to appeal to a higher court.
Second, if the separate opinions are not appended to the main opinion, the parties will have difficulty understanding the dissertation in the ponencia of the majority that addressed the points raised and reasons presented in the separate opinions, more particularly in the dissenting opinion.
Even if we concede that Tan and Burahan’s petition was filed on time, we find that the petition failed to establish that the COMELEC en banc committed grave abuse of discretion.
First Issue: No
Disenfranchisement of Voters
Ground not raised below cannot
be raised on appeal
The records of the case from the COMELEC show that petitioners did not raise the alleged abrupt change of polling place as an issue.
Petitioners now modify their theory on appeal. Quoting extensively Commissioner Sadain’s Dissenting Opinion which applied Hassan[48] and Basher,[49] petitioners now allege that the sudden change in the polling places deprived the candidates and voters of sufficient notice which afforded private respondents undue advantage and enabled them to engage the alleged election irregularities to ensure their victory.
The aforementioned issue
is now raised only for the first time on appeal before this Court.
Settled is the rule that issues not raised in the proceedings below (COMELEC en banc) cannot be raised for the
first time on appeal. Fairness and due process dictate that
evidence and issues not presented below cannot be taken up for the first time
on appeal.[50]
Thus, in Matugas v. Commission on Elections,[51] we reiterated this rule, saying:
The rule in appellate
procedure is that a factual question may not be raised for the first time on
appeal,[52] and documents forming no part of the proofs before
the appellate court will not be considered in disposing of the issues of an
action.[53] This is true whether the decision elevated
for review originated from a regular court[54]
or an administrative agency or quasi-judicial body,[55]
and whether it was rendered in a civil case,[56] a
special proceeding,[57]
or a criminal case.[58] Piecemeal
presentation of evidence is simply not in accord with orderly justice.
Moreover, in Vda. De Gualberto v. Go,[59] we also held:
In Labor Congress of the Philippines v.
NLRC,[60] we have made it clear that “to allow fresh issues on appeal
is violative of the rudiments of fair play, justice and due process.”[61] Likewise,
in Orosa v. Court of Appeals,[62]
the Court disallowed it because “it would be offensive to the basic rule of fair
play, justice and due process if it considered [the] issue[s] raised for the
first time on appeal.” We cannot take an opposite stance in the present
case.
Information on clustering of polling places duly
disseminated to the electorate
Even granting arguendo that the issue of the alleged change and transfer of polling places was raised before the COMELEC, it would still not justify a declaration of failure of election in the subject municipalities.
The records sufficiently shed light on this issue and dispel any doubt as to the failure of election as alleged. It is apparent that the May 9, 2004 approval of the change and transfer of polling places—which was duly disseminated to the parties, candidates, and voters—was a mere formality to confirm what was already set way before the May 10, 2004 elections.
The April 13,
2004 COMELEC Resolution No. 6695[63]
granted authority to the Commissioners-in-Charge of regions to decide on all
administrative matters not covered by specific resolutions or policies. The clustering of precincts in
Pursuant to COMELEC
Resolution No. 6695 of
No
failure of election
Petitioners argue that there was failure of elections in the four (4) subject municipalities as there was really no election held because all the ballots in these municipalities were filled out by private respondents’ relatives and supporters. They assert that there was merely a sham election followed by a similar sham canvassing, and the voters were consequently disenfranchised. They strongly maintain that this instant case falls within the first instance under Section 6 of the Omnibus Election Code[67] where a failure of election may be declared by COMELEC.
We are not persuaded.
The
COMELEC correctly dismissed the Petitions
for Declaration of Failure of Election since the electoral
anomalies alleged in the petitions should have been raised in an election protest,
not in a petition to declare a failure of election.
Under
Republic Act No. 7166, otherwise known as “The Synchronized Elections Law of
1991,”[68]
the COMELEC en banc is empowered to declare a failure of election under
Section 6 of the Omnibus Election Code.
Section 6 of the Code prescribes the conditions for the exercise of this
power, thus:
Section
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 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.
From the
above-cited proviso, three (3) instances justify the declaration of failure of
election, to wit:
(a) the election in any polling place
has not been held on the date fixed on account of force majeure,
violence, terrorism, fraud, or other analogous causes;
(b) the election in any polling place
had been suspended before the hour fixed by law for the closing of the
voting on account of force majeure, violence, terrorism, fraud, or other
analogous causes; or
(c) after the voting and during the
preparation and transmission of the election returns or in the custody or
canvass thereof, such election results in a failure to elect on account
of force majeure, violence, terrorism, fraud, or other analogous causes.[69]
In these three
(3) instances, there must be a resulting failure to elect. As stated in Banaga, Jr. v. Commission on Elections, “this is obvious in the first two scenarios, where the
election was not held and where the election was suspended.”[70] As to the third scenario, where the
preparation and the transmission of the election returns give rise to the
consequence of failure to elect must, as mentioned earlier, be interpreted to
mean that nobody emerged as a winner.[71]
In Banaga, we held
that:
Before the
COMELEC can act on a verified petition seeking to declare a failure of election
two conditions must concur, namely (1) no voting took place in the precinct or
precincts on the date fixed by law, or even if there was voting, the election
resulted in a failure to elect; and (2) the votes not cast would have affected
the result of the election.[72] Note that the cause of such failure of
election could only be any of the following:
force majeure, violence, terrorism, fraud or other analogous
causes.[73]
A scrutiny of
the petitions filed before the COMELEC shows that petitioners never alleged
that no voting was held nor was voting suspended in the subject
municipalities. Neither did petitioners
allege that no one was elected. Petitioners only allege that there was a
sham election and similar sham canvassing.
As noted earlier,
to warrant a declaration of failure of election, the alleged irregularities must
be proven to have prevented or suspended the holding of an election, or marred
fatally the preparation and transmission, custody, and canvass of the election
returns. These essential facts should have
been clearly alleged by petitioners before the COMELEC en banc, but they
were not.
No evidence of massive
disenfranchisement
Petitioners want us to examine the evidence and the findings of facts by the COMELEC en banc asserting that there was evident massive disenfranchisement of voters. While this Court is not a trier of facts, and under the Constitution, this Court resolves “cases in which only an error or question of law is involved.”[74] Nevertheless, after a thorough examination of the documentary evidence presented by petitioners in the proceedings below, we find no cogent reason to alter the findings and conclusions of respondent COMELEC en banc.
Factual findings
of the COMELEC which has the expertise in the enforcement and administration of
all election laws and regulations are binding on the Court[75]
and must be respected. Besides, based on
the COMELEC en banc’s scrutiny of the
facts, the allegations do not constitute sufficient grounds to nullify the
election. We agree with the finding of
the COMELEC en banc that the evidence relied upon by
petitioners to support their charges of fraud and irregularities in the conduct
of elections in the questioned municipalities consisted of affidavits prepared
and executed by their own representatives; and that the other pieces of evidence
submitted by petitioners were not credible and inadequate to substantiate
petitioners’ charges of fraud and irregularities in the conduct of elections.[76] Mere affidavits are insufficient,[77]
more so, when they were executed by petitioners’ poll watchers. The conclusion of respondent COMELEC is
correct that although petitioners specifically alleged violence, terrorism,
fraud, and other irregularities in the conduct of elections, they failed to
substantiate or prove said allegations.
Had there been massive disenfranchisement, petitioners should have
presented the affidavits of these disenfranchised voters, instead of only a
single affidavit of one allegedly disenfranchised voter.[78]
We go along with the COMELEC en banc in giving more weight to the affidavits and certifications executed by the members of the Board of Election Inspectors and the PNP and military authorities that the elections held were peaceful and orderly, under the presumption that their official duties had been regularly performed.[79]
Verily, the above-mentioned sole affidavit of Miriam H. Binang, an alleged disenfranchised voter from the Municipality of Luuk, Sulu presented by gubernatorial candidate respondent Yusop Jikiri in SPA No. 04-334, is not enough to annul the election. Considering petitioners’ allegation of massive disenfranchisement of voters wherein legitimate voters were simply ordered to affix their signatures and thumbprints, we agree with public respondent that petitioners should have presented the affidavits of the alleged disenfranchised voters from the subject four (4) municipalities, but they did not.
Grounds raised proper for
election contest
Hassan[80] and Basher[81] do not apply to the instant case. Unlike in these cases, there was sufficient notice to the political parties, candidates, and voters regarding the clustering of precincts and transfer of polling places. Moreover, the election proceeded as scheduled, and none of the extreme irregularities that marred the elections in Hassan and Basher were present. In Banaga,[82] we reiterated the rule that there is failure of election only if the will of the electorate is muted and cannot be ascertained.[83] If the will of the people is determinable, the same must be respected as much as possible.[84] In the instant case, the will of the people was evident as the PBC duly proclaimed the winning candidates. As aptly ruled by respondent COMELEC, petitioners should have filed an election protest to substantiate their allegations of election anomalies, not a petition to declare a failure of election.
Therefore, we find no abuse of discretion, much less grave abuse, committed by the COMELEC en banc in dismissing the Petitions for Declaration of Failure of Election for lack of merit.
Anent the second issue raised on “whether or not the proclamation of the respondents, albeit patently null and void, bars the filing of the instant petitions for declaration of failure of election,” we find that this matter is already moot as a non-issue, as due course was given to the instant petitions even if the annulment of the proclamation of respondent Loong through the June 21, 2004 COMELEC First Division Order was set aside and superseded by March 18, 2005 Order dismissing the appeal of petitioner Tan in SPA Nos. 04-163, 04-164, and 04-165.
G.R. No. 166891
First
Issue: Timeliness of election protest
Distinction between electoral protests filed under
Sections 248 and 258 of the
Omnibus Election Code
Moving to the issues raised in the second petition (G.R. No. 166891), we note that while petitioner Loong doubtlessly concedes the original jurisdiction of COMELEC over election protests involving provincial officials, among others, he excepts, at the first instance, to its assumption of jurisdiction over such contest which, to him, was filed after the reglementary period.
Section 250 of the Omnibus Election Code[85] under which the petitioner anchors his case provides as follows:
Section 250. Election contests for
Batasang Pambansa, regional, provincial and city offices. – A sworn petition
contesting the election of … any regional, provincial or city official shall
be filed with the Commission by any candidate who has duly filed a
certificate of candidacy and has been voted for the same office, within ten
days after the proclamation of the results of the election. (Underscoring added)
The complementing Section 1, Rule 20 of the COMELEC Rules of Procedure practically says the same thing.
The petitioner’s
formulation of his basic submission and the premises holding it together run as
follows: The PBOC of Sulu proclaimed the
results of the gubernatorial election, or, in fine, declared him as the duly
elected governor of Sulu, on
Petitioner’s basic posture may be accorded plausibility, except that it glossed over a statutory provision which, in the light of certain proceedings as thus narrated, militates against his stance. Under Section 248 of the Election Code, the filing of certain petitions works to stop the running of the reglementary period to file an election protest, thus:
Section 248. Effect of filing petition to
annul or to suspend the proclamation. – The filing with the Commission of a
petition to annul or to suspend the proclamation of any candidate shall suspend
the running of the period within which to file an election protest or quo
warranto proceedings.
As may be noted,
the aforequoted Section 248 contemplates two (2) points of reference, that is,
pre- and post-proclamation, under which either of the petitions referred to
therein is filed. Before the
proclamation, what ought to be filed is a petition to “suspend” or stop an impending proclamation. After the proclamation, an adverse party
should file a petition to “annul” or undo a proclamation made. Pre-proclamation controversies partake of the
nature of petitions to suspend. The
purpose for allowing pre-proclamation controversies, the filing of which is
covered by the aforequoted Section 248 of the Omnibus Election Code, is to nip
in the bud the occurrence of what, in election practice, is referred to as “grab the proclamation and prolong the
protest” situation.[86]
Correlating the petitions mentioned in Section 248 with the 10-day period set forth in the succeeding Section 250, a petition to suspend tolls the 10-day period for filing an election protest from running, while a petition to annul interrupts the running of the period. In other words, in a Section 248 petition to suspend where the 10-day period did not start to run at all, the filing of a Section 250 election contest after the tenth (10th) day from proclamation is not late. On the other hand, in a Section 248 petition to annul, the party seeking annulment must file the petition before the expiration of the 10-day period.
Election protest case filed on
time
In the case at
bench, the petitioner’s arguments on the belated filing of the respondent’s
election protest may merit consideration had the petitions against him been
only for the annulment of his
Not to be
overlooked, because a corresponding position could have preceded it, is the
In view of
the foregoing but without prejudice to any resolution which would issue in
disposition of the pending appeals and petitions involved in SPC 04-138, SPA
No. 04-163, SPA No. 04-164 and SPA No. 04-165, [SPC instead of SPA should have
been used] the Commission (FIRST DIVISION) hereby ANNULS the precipitate and
premature proclamation of BENJAMIN LOONG as the winning candidate of governor
of Sulu.[89]
Upon the
foregoing considerations, the filing of the election protest ad cautelam
on
Records
show that there are still pre-proclamation cases pending before the Commission,
the result of which could affect the protestee [petitioner Loong], to wit: SPC 04-163 (Abdusakur Tan vs. The Provincial
Board of Canvassers of Sulu), SPC 04-164 (Abdusakur Tan vs. Provincial Board of
Canvassers of Sulu) and SPC 04-165 (Abdusakur Tan vs. Provincial Board of
Canvassers of Sulu). This situation
distinguishes the instant case from that of Dagloc vs. COMELEC (321 SCRA 273)
to which the protestee is anchoring his defense.
It is likewise of no moment that the
pre-proclamation cases were filed not by the protestant but by another
candidate. Section 248 of the Omnibus
Election Code does not require that the petition to annul or to suspend the
proclamation be filed by the protestant.
This liberal interpretation likewise sits well with our policy to forego
with technicalities if they stand in the way of determining the true will of
the people.
That the cases are still pending with the
Commission will not prevent the protestant from converting his election protest
ad cautela into a regular one. Such
conversion is an option which the protestant enjoys. Said fact likewise does not preclude us from
deciding the election protest case.
Pre-proclamation controversies and election protest cases have different
causes of action. They can proceed
independently.[90]
Thus, the imputation of grave abuse of discretion, on the part of respondent COMELEC’s First Division, in refusing to dismiss respondent Jikiri’s Petition of Protest Ad Cautelam (EPC No. 2004-66) on the stated ground that he filed the same after the lapse of the period for filing an election protest is untenable.
Rules prescribed to promote
substantive justice
It may be well to point out at this juncture that the rules on reglementary periods, perhaps, like any rule issued by judicial and quasi-judicial bodies, are prescribed to ensure stability in the administration of justice, as well as to promote substantive justice. Indeed, they should be disregarded when they pose obstruction to the attainment of such lofty ends, which, in election-related cases, as here, is the determination of the popular will. While the facts in Bince, Jr. v. COMELEC[91] are not on all fours similar, what we said therein is most apt:
Assuming for the sake of argument that the
petition was filed out of time, this incident alone will not thwart the proper
determination and resolution of the instant case on substantial grounds. Adherence to a technicality that would put a
stamp of validity on a palpably void proclamation, with the inevitable result
of frustrating the people’s will cannot be countenanced.[92]
Second
Issue: Simultaneous prosecution of
pre-proclamation
controversies and election protests
On the last issue of the propriety of prosecuting simultaneously pre-proclamation controversies and an electoral protest, petitioner Loong holds the negative view, submitting, in gist, that an election contest should be put on hold until pre-proclamation controversies are concluded. He thus faults and goes on to ascribe grave abuse of discretion on the COMELEC First Division for holding otherwise, stating as follows:
Clearly, the [ruling of the COMELEC First
Division] is illogical and absurd. What
will happen if the pre-proclamation appeals of … Tan are sustained and the
defeated candidate … Tan is found to be the winner in his pre-proclamation
appeals? Obviously, the ruling of the
COMELEC does not promote orderly procedure in the resolution of election
cases. It promotes useless, unnecessary,
and vexatious litigations.[93]
As earlier stated, it is not legally
possible for the COMELEC First Division to declare Jikiri the elected governor
in the electoral protest filed against petitioner [Loong] and at the same time
issue a decision in the pre-proclamation appeals of Abdusakur Tan that the
latter is the elected governor. The
grave abuse of discretion amounting to lack of jurisdiction is very obvious.[94]
Petitioner Loong’s arguments, for all their easily-perceptible merit, are not anchored on any legal provision. They are common sensical to be sure. Nonetheless, laying grave abuse of discretion on the doorsteps of the respondent COMELEC First Division for giving due course to respondent Jikiri’s electoral protest without waiting for the final result of the pre-proclamation appeals is a different matter altogether.
No rule or law prohibits
simultaneous prosecution
For one, there
is no law or rule prohibiting the simultaneous prosecution or adjudication of
pre-proclamation controversies and elections protests. Allowing the simultaneous prosecution
scenario may be explained by the fact that pre-proclamation controversies and
election protests differ in terms of the issues involved and the evidence
admissible in each case[95]
and the objective each seeks to achieve.
Moreover, the Court, under certain circumstances, even encourages the
reinforcement of a pre-proclamation suit with an election protest. As we held in Matalam v. Commission on
Elections:[96]
The Court
agonized over its inability to fully look into the election irregularities
alleged by petitioner, due to the very limited scope of pre-proclamation
controversy. Thus, the Court reminds
lawyers handling election cases to make a careful choice of remedies. Where it becomes apparent that a pre-proclamation
suit is inadequate, they should immediately choose another timely remedy, like
a petition to annul the election results or to declare a failure of elections
or even an election protest, so that election irregularities may be fully
ventilated and properly adjudicated by the competent tribunal.[97]
Speedy
disposition paramount
For another, simultaneous adjudications offer more practical features
than piecemeal adjudications in expediting the resolution of cases. We must stress the importance of speedy
disposition of election cases because a late decision, such as one that comes
out when the term of office in dispute is about to expire, is a veritable
useless scrap of paper. We reiterate
what we said in Espidol v. COMELEC:
It
bears reiterating x x x that the COMELEC is with authority to annul any canvass
and proclamation illegally made. The
fact that a candidate illegally proclaimed has assumed office is not a bar to the
exercise of such power. It is also true
that as a general rule, the proper remedy after the proclamation of the winning
candidate for the position contested would be to file a regular election
protest or quo warranto. This
rule, however, admits of exceptions and one of those is where the proclamation
was null and void. In such a case, i.e.,
where the proclamation is null and void, the proclaimed candidate’s assumption
of office cannot deprive the COMELEC of the power to declare such proclamation
a nullity.
The
rationale therefor is aptly elucidated thus:
We
draw from past experience. A pattern of
conduct observed in past elections has been the “pernicious
grab-the-proclamation-prolong-the-protest-slogan of some candidates or
parties.” Really, where a victim of a
proclamation to be precluded from challenging the validity thereof after that
proclamation and the assumption of office thereunder, baneful effects may
easily supervene. It may not be out of
place to state that in the long history of election contests in this country, x
x x successful contestant in an election protest often wins but “a mere pyrrhic
victory, i.e., a vindication when the term of office is about to expire
or has expired.” Protests, counter-protests,
revisions of ballots, appeals, dilatory tactics, may well frustrate the will of
the electorate. And what if the
protestant may not have the resources and an unwavering determination with
which to sustain a long drawn-out election contest? In this context therefore all efforts should
be strained – as far as is humanly possible – to take election returns out of
the reach of the unscrupulous; and to prevent illegal or fraudulent
proclamation from ripening into illegal assumption of office.[98]
WHEREFORE, the instant petitions are DISMISSED
for lack of merit. The assailed October 18, 2004 Joint Resolution of
the Commission of Elections En Banc in SPA Nos. 04-334, 04-336, 04-337,
04-339, and 04-340 in G.R. Nos. 166143-47, as well as the assailed Orders of
the Commission of Elections First Division in EPC No. 2004-66 dated December
14, 2004 and February 7, 2005 in G.R. No. 166891, are hereby AFFIRMED
IN TOTO. Sections 3 and 4, Rule 18 of the COMELEC
Rules of Procedure are hereby voided and declared unconstitutional for
contravening Article IX-A, Section 7 of the 1987 Constitution. Costs against petitioners.
SO ORDERED.
PRESBITERO
J. VELASCO, JR.
Associate
Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
REYNATO
Associate Justice Associate
Justice
CONSUELO
YNARES-
Associate Justice Associate
Justice
ANTONIO T. CARPIO
MA. ALICIA AUSTRIA-MARTINEZ
Associate
Justice Associate
Justice
RENATO C. CORONA CONCHITA CARPIO MORALES
Associate Justice Associate
Justice
ROMEO J. CALLEJO, SR. ADOLFO S. AZCUNA
Associate
Justice Associate
Justice
DANTE O. TINGA MINITA V. CHICO-NAZARIO
Associate Justice Associate
Justice
CANCIO C.
GARCIA
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII
of the Constitution, and the Division Chairperson’s Attestation, I certify that
the conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court’s Division.
ARTEMIO V. PANGANIBAN
Chief Justice
[2] Bandala v. Commission on Elections, G.R.
No. 159369, March 3, 2004 (En Banc), 424 SCRA 267, 269, citing Sanchez v. Commission on Elections, G.R.
No. L-78461,
[4] Concurred in by Commissioners Benjamin S. Abalos, Sr. (Chairman), Rufino S.B. Javier, Resurreccion Z. Borra, Florentino A. Tuason, Jr., Virgilio O. Garcillano, and Manuel A. Barcelona, Jr., with Commissioner Mehol K. Sadain dissenting, rollo (G.R. Nos. 166143-47), pp. 52-64.
[5] Dated
[6] By Commissioners Rufino S. Javier (Presiding Commissioner), Resurreccion Z. Borra (Member), and Virgilio O. Garcillano (Member), rollo (G.R. No. 166891), pp. 28-33.
[7] Rollo (G.R. No. 166891), pp. 48-51.
[8] Dated
[9] Dated
[10] Dated
[11] Dated
[12] The respondent COMELEC consolidated this petition with the other four petitions because they are closely related. See rollo (G.R. Nos. 166143-47), no. 3.4, p. 16.
[14]
[15]
[16]
[17]
[18]
[19]
[20]
[21]
[22]
[23]
Petitioner’s Memorandum, rollo (G.R. No. 166891), p. 197, par. 7.
[24]
[25] Issued by Commissioners Rufino S.B. Javier, Resurreccion Z. Borra, and Virgilio O. Garcillano, rollo (G.R. Nos. 166143-47), pp. 153-157.
[26] Rollo (G.R. Nos. 166143-47), pp. 158-161, by Commissioners Rufino S.B. Javier and Resurreccion Z. Borra.
[27] Rollo
(G.R. No. 166891), pp. 52-65.
[28] Rollo (G.R. No. 166891), pp. 52-65.
[34] See Comelec Resolution No. 6932, dated
[37] Rollo (G.R. No. 166891), pp. 71-80.
[38] Supra note 6.
[39] Rollo (G.R. No. 166891), pp. 34-44.
[40] Supra note 7.
[41] Joint Resolution, dated March 18, 2005, per Commissioners Rufino S.B. Javier, Resurreccion Z. Borra, and Virgilio O. Garcillano, rollo (G.R. Nos. 166143-47), pp. 255-259.
[43] 20 Am Jur 2d, Courts § 71, p.435 (citations omitted).
[44] CONSTITUTION, Art. VIII, Sec. 13.
[45] Sec. 6.
Each Commission en banc may promulgate its own rules
concerning pleadings and practice before it or before any of its offices
(emphasis supplied). Such rules however
shall not diminish, increase, or modify substantive rights.
[46] 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
(emphasis supplied). 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.
[47] Sec. 5. The Supreme Court shall have the following powers:
(5) Promulgate rules concerning the
protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of law, the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall
provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for
all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and
quasi-judicial bodies shall remain
effective unless disapproved by the Supreme Court (emphasis supplied).
[50] Coca-Cola Bottlers Phils., Inc., et al. v. Daniel, G.R. No. 156893, June 21, 2005, 460 SCRA 494, 505, citing Lim v. Queensland Tokyo Commodities, Inc., G.R. No. 136031, January 4, 2002, 373 SCRA 31, 41. Lim held that:
[T]his Court cannot now, for the first time on appeal, pass upon this
issue. For an issue cannot be raised for the first time on appeal. It must be raised seasonably in the proceedings
before the lower court. Questions raised on appeal must be within
the issues framed by the parties and, consequently, issues not raised in the trial court cannot be
raised for the first time on appeal.
[52]
Citing Telephone Engineering &
Service Co.,
[56] Citing supra note 52; Dayrit v. Gonzales, G.R. No. 2787,
[58]
Citing People v. Ocampo, G.R. Nos. 90247-49,
[61] Citing
Association of Marine Officers and Seamen
of Reyes and Lim Co. v. Laguesma, G.R. No. 107761,
[64] See Comelec Resolution No. 6932, supra note 34, at 251. The Resolution embodied Commissioner Barcelona’s Memorandum, which reads:
For purposes of the
national and local elections on May 10, 2004, the undersigned
Commissioner-in-Charge, Region IX, by virtue of his authority under Comelec
Resolution No. 6695 promulgated on April 13, 2004, hereby approves and
adopts the clustering of voting centers as recommended in the memorandum
with the attached modified clustering proposal for the province of Sulu
submitted by Director Helen G. Aguila-Flores, Regional Election Director,
Region IX, in consultation with Col. Joel P. Ibañez, Operations Officer of the
Southern Command, BGen Gabriel A. Habacon, Commanding General of the Joint Task
Force Comet, Mr. Reynaldo S. Pescadera, OIC-PES, Sulu, and all Election
Officers, [in] said Province.
[65]
[66] See
Commissioner Sadain’s signatures in Comelec Resolution No. 6932, dated
[67] Supra note 31.
[68] The pertinent section reads:
Sec. 4. Postponement, Failure of
Election and Special
Elections.—The postponement, declaration
of failure of election
and the calling of special elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code shall be
decided by the Commission sitting en banc by a majority vote of its members. The causes or the declaration of a failure of election may occur before or after
the casting of votes or on the
day of the election.
[75] See Bataga, Sr. v. COMELEC and Tan [Resolution], G.R. Nos. 150965-66, January 15, 2002, citing Mohammad v. Commission on Elections, G.R. No. 136384, December 8, 1999, 320 SCRA 258; Malonzo v. COMELEC, G.R. No. 127066, March 11, 1997, 269 SCRA 380.
[77] Cordero v. COMELEC, G.R. No. 134826, July 4, 1999, 310 SCRA 118, 126, citing Casimiro v. COMELEC, G.R. Nos. 84462-63 & 84678-79, March 29, 1989, 171 SCRA 468.
[85] Supra note 31.
[86] Dagloc v. COMELEC, G.R. No. 138969,
[87] Supra note 23.
[88]
[89] Rollo (G.R. No. 166891), p. 103.
[90] Rollo (G.R. No. 166891), pp. 29-30.
[91]
G.R. Nos. 111624-25,
[92]
[93]
Petitioner’s Memorandum, rollo (G.R. No. 166891), p. 207.
[94] Rollo (G.R. No. 166891), p. 22.
[95] Bandala v. Comelec, supra note 2.
[96]
G.R. No. 123230,
[97]
[98] G.R.
No. 164922,