|
ABDUL
GAFFAR P.M. DIBARATUN, Petitioner, - versus - COMMISSION ON
ELECTIONS and ABDUL CARIM MALA
ABUBAKAR, Respondents. |
G.R. No. 170365 Present: Puno, C.J., CARPIO, CARPIO MORALES, velasco, jr., nachura, LEONARDO-DE
CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD,* VILLARAMA, JR., perez, and MENDOZA,**
JJ. Promulgated: February 2,
2010 |
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D E C I S I O N
PERALTA, J.:
This
is a petition for certiorari[1]
of the Resolution of the Commission on Elections (COMELEC) en banc dated October 17, 2005 in SPA No. 02-481, which declared a
failure of elections in Precinct No. 6A/7A, Barangay Bagoainguid, Municipality
of Tugaya, Lanao del Sur and annulled the proclamation of petitioner Abdul
Gaffar[2]
P.M. Dibaratun as the duly elected Punong Barangay of Barangay Bagoainguid in the July 15, 2002 Synchronized
Barangay and Sangguniang Kabataan Elections.
The facts are as follows:
Respondent
Abdulcarim Mala Abubakar,[3]
a re-electionist candidate for the position of Punong Barangay of Barangay
Bagoainguid, Tugaya, Lanao del Sur, filed a petition[4]
before the COMELEC to declare a failure of elections in Precinct No. 6A/7A,
Barangay Bagoainguid, Tugaya, Lanao del Sur and to annul the proclamation of petitioner
Abdul Gaffar P.M. Dibaratun as the duly elected Punong Barangay of Barangay
Bagoainguid in the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan
Elections.
In his petition,
respondent Abubakar alleged:
x x x x
3.
That on July 15, 2002 at around 10:30 o’
clock in the morning, the casting of votes in the above named precinct was
commenced at its designated Polling Place in Cayagan Elementary School and
while only ten (10) voters had actually voted, a certain ALIPECRY ACOP GAFFAR,
who is the son of respondent Punong Barangay candidate ABDULGAFFAR DIBARATUN
got inside the polling place and was caught in possession of Three (3) filled
up ballots where candidate ABDULGAFFAR DIBARATUN were voted which he wanted to
place or insert inside the ballot box for official (sic).
4. That when said ALIPECRY GAFFAR was confronted by
the petitioner’s watcher and other watchers confronted him of said official
ballots, he got mad and flared up and committed violence which disrupted and
stopped the casting of votes and because of the commotion, the chairman left
the ballot box which was held by the companions of Alipecry Acop Gaffar and
destroyed the said ballot box, took the official ballot contained therein and
inserted, placed therein a bundle of substituted ballots.
5.
That due to the facts adverted to
above, the casting of votes was stopped and it was never resumed nor
continued. Only Ten (10) voters had
actually voted out of One Hundred Fifty One (151) registered voters.
6.
That
even candidates for Barangay Chairmen and Barangay Kagawad were unable to cast
their votes because the casting of votes was illegally disturbed, disrupted,
interrupted and stopped by Alipecry Acop Gaffar despite the presence of numerous registered voters ready to cast
their votes.
x
x x x
9. The
Election Officer knowing fully that there was really a failure of election in
the said precinct recommended that a special election be called for the said
precinct.
10. That unknown to the petitioner, the
respondent Board of Election Inspectors, in conspiracy and connivance with
respondent – Abdulgaffar Dibaratun, surreptitiously and clandestinely canvassed
the election returns and then illegally proclaimed the respondent Abdulgaffar
Dibaratun and issued Certificate of Canvass of Votes and Proclamation of
Winning Candidates dated July 16, 2002 which was ant[e]dated xerox copy of
which is hereto attached as Annex “C” hereof.[5]
Respondents therein
filed their Answer denying the allegations of herein private respondent. They contended that as 10 voters had actually
voted, there was no failure of elections in the aforementioned precinct. They further contended that the petition was
filed out of time.
In the Resolution dated
October 17, 2005, the COMELEC en banc
granted the petition, the dispositive portion of which reads:
WHEREFORE,
premises considered, the Commission (en banc) RESOLVED, as it hereby RESOLVES,
to GIVE DUE COURSE to the instant petition.
ACCORDINGLY,
the proclamation of respondent Abdulgaffar P.M. Dibaratun as the duly elected
Punong Barangay of Barangay Bagoainguid, Tugaya, Lanao del Sur is hereby
ANNULLED and he is thus ORDERED to CEASE AND DESIST from exercising the powers
and responsibilities of the said office.
Pending the conduct of the special elections yet to be scheduled by this
Commission and until no Punong Barangay has been duly elected and qualified,
the incumbent Punong Barangay shall continue to exercise the powers and duties
of such office in a hold-over capacity in accordance with Section 5 of R.A. No.
9164 (An Act Providing for Synchronized Barangay and Sangguniang Kabataan
Elections, Amending Republic Act No. 7160, As Amended, Otherwise Known as The
‘Local Government Code of 1991,’ and For Other Purposes).
Let
the Office of the Deputy Executive Director for Operations (ODEDO), this Commission,
furnish a copy of this Resolution to the Provincial Election Supervisor of
Lanao del Sur for the implementation of the same upon its finality.[6]
Dibaratun filed this
petition, raising the following issues:
1)
The COMELEC en banc gravely abused its discretion amounting to lack or excess
of jurisdiction when it unjustly gave due course to the unmeritorious petition
of respondent Abubakar for the simple reason that it was filed out of time and
the validity of the proclamation of petitioner Dibaratun on July 16, 2002 can no
longer be legally assailed after the expiration of ten (10) days.
2)
Private
respondent Abubakar is estopped to assert whatever rights he has in the
election laws/rules of procedure when he desparately failed to make the proper
objections during the casting, counting and canvassing of votes, and,
therefore, the COMELEC en banc
gravely abused its discretion amounting to lack or excess of jurisdiction when
it erroneously heard and considered the unmeritorious petition of respondent
Abubakar.
3)
Public
respondent COMELEC en banc gravely
abused its discretion amounting to lack or excess of jurisdiction when it
erroneously declared failure of elections
in Precinct No. 6A/7A of Barangay Bagoainguid, Tugaya, Lanao del Sur and called
for special elections in the said precinct.[7]
The main issue is
whether or not the COMELEC en banc
committed grave abuse of discretion amounting to lack or excess of jurisdiction
in declaring a failure of elections in Precinct No. 6A/7A of Barangay
Bagoainguid, Tugaya, Lanao del Sur and in annulling the proclamation of
petitioner as the elected Punong Barangay.
The petition is
unmeritorious.
The 1987 Constitution
vests in the COMELEC the broad power to enforce all the laws and regulations
relative to the conduct of elections, as well as the plenary authority to
decide all questions affecting elections except the question as to the right to
vote.[8]
Section 6 of the
Omnibus Election Code provides for the instances when the COMELEC may declare
failure of elections, thus:
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.
Sec.
6 of the Omnibus Election Code is reflected in Sec. 2, Rule 26 of the COMELEC
Rules of Procedure.
In its Resolution, the
COMELEC en banc, citing Banaga, Jr. v. Commission on Elections,[9]
enumerated the three instances when a failure of elections may be declared by
the Commission:
(1)
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;
(2)
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
(3)
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.
Before the COMELEC can
act on a verified petition seeking to declare a failure of elections, two
conditions must concur: (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 elections.[10] The cause of such failure of election could
only be any of the following: force
majeure, violence, terrorism, fraud or other analogous causes.[11]
The COMELEC en banc based its decision to declare a failure
of elections in Precinct No. 6A/7A on the second instance stated in Section 6
of the Omnibus Election Code, that is, 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.
The COMELEC en banc held that in this case, it was undisputed that
after only 10 registered voters cast their votes, the voting was suspended
before the hour fixed by law by reason of violence. This was supported by the
affidavits submitted by both petitioner and private respondent, who only
disagreed as to the perpetrator of the violence as each party blamed the other
party.
In its Resolution, the COMELEC en banc averred:
The
letter of Mayor Abdul Jabbar Mangawan A.P. Balindong, Municipal Mayor of
Tugaya, Lanao Del Sur, addressed to Chairman Benjamin Abalos, Sr., the Joint
Affidavit of Norhata M. Ansari and Sahara T. Guimba, Poll Clerk and Third
Member, respectively, of the Board of Election Inspectors of Precinct No. 6A/7A
of Barangay Bagoainguid and the Joint Affidavit of PO1 Yahya M. Dirindigun and
PO1 Casary C. Modasir all state that it is the petitioner and his relatives and
followers who started the violence that caused the suspension of the voting.
Meanwhile,
the affidavits submitted by the witnesses of the petitioner all state that it
is respondent Dibaratun and his followers and relatives who were the cause of
the violence which resulted in the suspension of the election after only ten
(10) people managed to vote.[12]
The COMELEC en banc ruled that since both parties
agreed that the elections were suspended before the hour fixed by law due to
violence caused by undetermined persons, there was obviously a failure of
elections in the aforementioned precinct.[13]
The findings of fact of
the COMELEC en banc are binding on
this Court. The grounds for failure of election (i.e., force majeure, violence, terrorism, fraud, or other analogous
cases) involve questions of fact, which can only be determined by the COMELEC en banc after due notice to and hearing
of the parties.[14] An application for certiorari against actions of the COMELEC is confined to instances
of grave abuse of discretion,[15]
amounting to lack or excess of jurisdiction. The COMELEC, as the administrative agency and
specialized constitutional body charged with the enforcement and administration
of all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall, has the expertise in its field so that its
findings and conclusions are generally respected by and conclusive on the
Court.[16]
Thus, the Court agrees with the COMELEC that
the elections in Precinct No. 6A/7A were suspended before the hour fixed by law
for the closing of the voting due to violence.
Only 10 voters were able to cast their votes out of 151 registered
voters; hence, the votes not cast would have affected the result of the
elections. The concurrence of these two conditions caused the COMELEC en banc to declare a failure of elections.
When there is failure of elections, the COMELEC is empowered to annul the
elections and to call for special elections.[17]
Public respondent, therefore, did not commit grave abuse of discretion in its
resolution of the case.
Moreover, petitioner
contends that respondent Abubakar’s petition for the declaration of failure of
elections and to annul the proclamation of petitioner was in the nature of a
pre-proclamation controversy under Sec. 241 of the Omnibus Election Code, but
respondent failed to comply with the procedures therefor. Petitioner also contends that the petition
was filed out of time, and that respondent failed to pay the docket fees on
time.
Petitioner’s arguments lack
merit.
Respondent Abubakar’s
petition for declaration of failure of elections falls under Sec. 6 of the
Omnibus Election Code. The allegations in
respondent’s petition constitute one of the instances for the declaration by
the COMELEC of failure of elections in Precinct No. 6A/7A. Hence, the COMELEC en banc took cognizance of the petition pursuant to Sec. 4 of
Republic Act No. 7166,[18]
thus:
SEC.
4. Postponement, Failure of Elections 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 for the declaration of a failure of election may occur before
or after the casting of votes or on the day of the election.[19]
The Court finds the
petition for declaration of failure of elections under Section 6 of the Omnibus
Election Code to be in order, and it was properly disposed of by the COMELEC en banc.
Hence, petitioner erred in contending that the petition of respondent Abubakar was
in the nature of a pre-proclamation controversy under Sec. 241 of the Omnibus
Election Code, but failed to comply with the procedures therefor. The issue addressed by the COMELEC en banc was whether the evidence
submitted supported the allegations in the petition that violence suspended the
elections in Precinct No. 6A/7A, Barangay Bagoainguid, Tugaya, Lanao del Sur,
before the hour fixed by law for the closing of the voting on July 15, 2002,
which resulted in failure of elections.
The issue does not fall under pre-proclamation controversies. The issues
that may be ventilated in a pre-proclamation controversy are enumerated in Sec.
243 of the Omnibus Election Code,[20]
thus:
1.
Illegal
composition or proceedings of the board of canvassers;
2.
The
canvassed election returns are incomplete, contain material defects, appear to
be tampered with or falsified, or contain discrepancies in the same returns or in other
authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of the
Omnibus Election Code;
3.
The
election returns were prepared under duress, threats, coercion, or
intimidation, or they are obviously manufactured or not authentic; and
4.
When
substitute or fraudulent returns in controverted polling places were canvassed,
the results of which materially affected the standing of the aggrieved candidate
or candidates.[21]
A petition to declare a
failure of elections is neither a pre-proclamation controversy as classified
under Sec. 5 (h), Rule 1 of the Revised COMELEC Rules of Procedure, nor an
election case.[22]
Further,
petitioner’s basis for the allegation that private respondent’s petition was
filed out of time is Sec. 252 of the Omnibus Election Code,[23]
covering election contests for barangay
offices, wherein a petition is filed
with the proper municipal or metropolitan trial court
within
ten days after the proclamation of the results of the election. Granting that the petition filed was for an
election contest, it would have been filed on time, since it was filed on July
26, 2002, which was within the ten-day period from the proclamation of
petitioner on July 16, 2002.
However,
the petition filed by private respondent was not for an election contest under
Sec. 252 of the Omnibus Election Code, but for the declaration of failure of
elections under Section 6 of the same Code. The Court notes that the provisions
on failure of elections in Section 6 of the Omnibus Election Code[24]
and Sec. 2, Rule 26 of the COMELEC Rules of Procedure do not provide for a
prescriptive period for the filing of a petition for declaration of failure of
elections. It appears that the COMELEC en banc has the discretion whether or
not to take cognizance of such petition. In this case, the petition was filed 11 days
after the scheduled election. In its Resolution, the COMELEC en banc declared that petitioner’s allegation that the petition was
filed out of time was rendered moot and academic by the fact that the petition
was already heard by the Commission and submitted for resolution.[25]
The COMELEC’s resolution of private respondent’s petition was in keeping with
its function to ensure the holding of free, orderly, honest, peaceful, and
credible elections.
Lastly, petitioner’s
allegation that private respondent failed to pay the docket fee on time does
not appear to have been raised before the COMELEC; hence, it cannot be raised for
the first time on appeal.
Petitioner’s allegation
of grave abuse of discretion by public respondent COMELEC en banc implies such capricious and whimsical exercise of judgment
as is equivalent to lack of jurisdiction or, in other words, the exercise of
the power in an arbitrary manner by reason of passion, prejudice, or personal
hostility; and it must be so patent or gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform the duty enjoined or to act at
all in contemplation of law.[26] It is not present in this case, as public
respondent issued the COMELEC Resolution dated October 17, 2005 based on the evidence on record and the law on
the matter.
WHEREFORE,
the instant petition for certiorari
is hereby DISMISSED.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
ANTONIO T. CARPIO RENATO
C. CORONA
Associate
Justice Associate Justice
CONCHITA CARPIO MORALES
Associate Justice |
PRESBITERO J.
VELASCO, JR. Associate
Justice |
|
ANTONIO
EDUARDO B. NACHURA Associate
Justice |
TERESITA
J. LEONARDO-DE CASTRO Associate
Justice |
|
ARTURO D.
BRION Associate
Justice |
LUCAS P. BERSAMIN Associate
Justice |
|
MARIANO C. DEL CASTILLO Associate Justice |
On official leave ROBERTO A. ABAD Associate Justice |
|
MARTIN S. VILLARAMA, JR. JOSE P.
PEREZ Associate Justice
Associate Justice On
leave JOSE C. MENDOZA Associate
Justice CERTIFICATION Pursuant to
Section 13, Article VIII of the Constitution, 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. REYNATO S. PUNO Chief Justice |
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*
On official leave.
**
On leave.
[1] Under Rule 64 in relation to Rule
65 of the Rules of Court.
[2] Also spelled as “Abdulgaffar” in
the COMELEC Resolution dated October 17, 2005.
[3] Also spelled as “Abubacar” in the
COMELEC Resolution dated October 17, 2005.
[4]
Entitled Abdulcarim
Mala Abubacar v. Board of Election
Inspectors/Tellers of Precinct No. 6A/7A, Barangay Bagoainguid, Tugaya, Lanao
del Sur.
[5] COMELEC
Resolution dated October 17, 2005, rollo,
pp. 32-33.
[6] Rollo, pp. 35-36.
[7] Id. at 15-16.
[8] Soliva v. Commission on Elections, G.R. No. 141723, April 20, 2001,
357 SCRA 336.
[9] G.R. No. 134696, July 31, 2000,
336 SCRA 701.
[10] Id.
[11] Id.
[12] Rollo,
p. 34.
[13] Id.
at 35.
[14] Immam
v. Commission on Elections, G.R. No. 134167, January 20, 2000, 322 SCRA
866.
[15] Matalam
v. Commission on Elections, G.R. No. 123230, April 18, 1997, 271 SCRA 733.
[16] Supra
note 8.
[17] Id.
[18] An Act Providing for Synchronized National
and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor,
and for Other Purposes. Approved on
November 26, 1991.
[19] Emphasis supplied.
[20] As amended by Sections 17 to 22 of R.A. No. 7166.
[21] Supra
note 15.
[22] Borja,
Jr. v. Commission on Elections, G.R. No. 120140, August 21, 1996, 260 SCRA
604.
[23]
Sec. 252. Election
contest for barangay offices. – A sworn petition contesting the election of
a barangay officer shall be filed with the proper municipal or metropolitan
trial court 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. xxxx
[24] 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.
[25] Rollo,
p. 35.
[26] Sangcopan
v. Comelec, citing Land Bank of the
Philippines v. Court of Appeals, G.R. No. 129368, August 25, 2003, 409 SCRA
455.