ELECTIONS: Reading Assignment July 7, 2017

IV. The Commission on Elections

CASES PAGE

Columbres v. COMELEC, G.R. No.

142038, September 18, 2000

Soller v. COMELEC, G.R. No. 139853,

September 5, 2000

Ambil v. COMELEC, G.R. No. 143398,

October 25, 2000

ABS-CBN v. COMELEC, G.R. No.

133486, January 28, 2000

Villarosa v. Festin, G.R. No. 212953,

August 5, 2014

Tan v. COMELEC, G.R. No. 112093,

October 4, 1994

Lintang Bedol v. COMELEC, G.R. No.

179830, December 3, 2009

Masangcay v. COMELEC, G.R. No. L-

13827, September 28, 1962

Montejo v. COMELEC, G.R. No. 118702,

March 16, 1995

Atienza, et al. v. COMELEC, G.R. No.

188920, February 16, 2010

Beso v. Aballe, G.R. No. 134932,

February 18, 2000

Antonio v. COMELEC, G.R. No. 135869,

September 22, 1999

COMELEC v. Datu-Iman, A.M. No.

MTJ-99-1178, March 3, 1999

1
Salva v. Makalintal, G.R. No. 132603,
September 18, 2000

Cagas v. COMELEC, G.R. No. 194139,

January 24, 2012

2
 EN BANC
[G.R. No. 142038. September 18, 2000]

ROLANDO E. COLUMBRES, petitioner, vs. COMMISSION ON ELECTIONS and

HILARIO DE GUZMAN, JR., respondents.
DECISION
BUENA, J.:

This petition for certiorari seeks the nullification of the COMELEC En

Banc Resolution dated January 25, 2000 which affirmed the Resolution of the Second
Division setting aside the decision of the Regional Trial Court of Dagupan City, Branch 40
in Election Case No. D- 31-98 annulling the election and proclamation of private
respondent Hilario de Guzman, Jr. as Mayor of San Jacinto, Pangasinan in the May 11,
1998 elections.
Petitioner Rolando Columbres and private respondent Hilario de Guzman, Jr. were
candidates for the position of Mayor of San Jacinto, Pangasinan during the May 11, 1998
elections.After canvassing, the Municipal Board of Canvassers proclaimed private
respondent with 4,248 votes as against petitioner's 4,104 votes. Subsequently, petitioner
filed an election protest with the Regional Trial Court docketed as Election Case No. D-
31-98. Petitioner contested 42 precincts and prayed for the revision of ballots in the said
precincts.
On December 7, 1998, the trial court rendered its decision, declaring petitioner as the
duly elected mayor of San Jacinto, Pangasinan with 4,037 votes against 3,302 votes of
private respondent.
Private respondent appealed the decision to the respondent COMELEC. The case
was docketed as COMELEC EAC No. A-20-98 and raffled to the COMELEC Second
Division.
On October 5, 1999, the Second Division promulgated its Resolution reversing and
setting aside the decision rendered by the Regional Trial Court and, instead, affirmed the
election and proclamation of private respondent. Private respondent was declared to have
won by sixty-nine (69) votes.
Petitioner filed a motion for reconsideration with respect to the ruling of the
COMELEC Second Division, validating 120 marked ballots in favor of private respondent,
despite absence of evidence, to prove that the marks have been placed on the ballots by
third persons other than the voters themselves. Petitioner likewise moved for a
reconsideration of the decision with respect to the 111 ballots found by the trial court to
have been written by two persons, but not so ruled upon by the Second Division, again in

3
favor of private respondent. Lastly, petitioner claimed that the Second Division erred in
totally disregarding his other objections and therefore urged the COMELEC EN BANC to
review the findings of the Second Division.
On January 25, 2000, the respondent COMELEC En Banc issued its Resolution
denying petitioner's motion for reconsideration and affirming the ruling of the Second
Division.
In resolving petitioner's Motion for Reconsideration, the respondent COMELEC En
Banc, in the herein assailed Resolution, said:
"xxx Protestant-appellee alleges that there were 124 ballots which were written by two
(2) persons, and as such they should all be annulled. Instead, the Commission (Second
Division) annulled only 13 ballots while validating 111 ballots in favor of protestee-
appellant Hilario de Guzman, Jr. Movant contends that the 13 ballots commonly
invalidated by both the COMELEC (Second Division) and the trial court as having been
written by two persons were no different from the 111 ballots validated by the
Commission (Second Division) but invalidated by the trial court.

"x x x x x x x x x
"xxx The finding by the Commission (Second Division) that the 111 questioned ballots
were written by the same person is a finding of fact that may not be the subject of a
motion for reconsideration. Movant protestant-appellee is not challenging the sufficiency
of the evidence in this instance but the appreciation thereof by the Commission (Second
Division)."[1]

"xxx Movant protestant-appellee (also) contends that there were 120 ballots erroneously
validated by the Commission (Second Division) which were admittedly marked. He
argues that whenever ballots contain markings very obvious and visible on their faces,
the presumption is that the said markings on the ballots were placed thereat by the voter
themselves - thus nullifying the said ballots. Stated otherwise, protestant-appellee argues
that the purported markings on the questioned ballots are presumed to have been placed
there by the voters themselves and, unless proven otherwise, nullifies the ballots.

"We disagree. The movant is relying on an erroneous and misleading presumption. The
rule is that no ballot should be discarded as marked unless its character as such is
unmistakable. The distinction should always be between marks that were apparently,
carelessly, or innocently made, which do not invalidate the ballot, and marks purposely
placed thereon by the voter with a view to possible future identification of the ballot,
which invalidate it. (Cacho vs. Abad, 62 Phil. 564). The marks which shall be considered
sufficient to invalidate the ballot are those which the voter himself deliberately placed on
his ballot for the purpose of identifying it thereafter (Valenzuela vs. Carlos, 42 Phil.
428). In other words, a mark placed on the ballot by a person other than the voter himself
does not invalidate the ballot as marked.(Tajanlangit vs. Cazenas, 5 SCRA 567)"[2]

4
 Hence, the present petition.
Petitioner raises two issues:
1. Whether or not, the findings of fact of the COMELEC Division, especially so in
matters of appreciation of ballots, is absolute and cannot be the subject of a Motion for
Reconsideration before the COMELEC En Banc; and

2. Whether or not, in appreciation of ballots, when a ballot is found to be marked, absent

any evidence aliunde, there is the presumption that the markings were placed by a third
person, and therefore, should not invalidate the ballot.

On the first issue, indeed, the COMELEC erred when it declared that
"xxx it is emphatic that the grounds of motion for reconsideration should consist of
insufficiency of evidence to justify the decision, order or ruling; or that the said
decision, order or ruling is contrary to law.Nowhere in the provision can finding of fact
be the subject of motion for reconsideration. The finding by the Commission (Second
Division) that the 111 questioned ballots were written by the same person is a finding of
fact that may not be the subject of a motion for reconsideration. Movant protestant-
appellee is not challenging the sufficiency of the evidence in this instance but the
appreciation thereof by the Commission (Second Division)."[3]

Section 1, Rule 19 of the COMELEC Rules of Procedure reads:

"Section 1. Grounds of Motion for Reconsideration. - A motion for reconsideration may
be filed on the grounds that the evidence is insufficient to justify the decision, order or
ruling; or that the said decision, order or ruling is contrary to law."

Commissioner Dy-Liaco, in her Dissenting Opinion, correctly opined, and we quote:

"I dissent in part from the majority conclusion that finding of facts on the one hundred
eleven (111) questioned ballots cannot be the subject of a motion for reconsideration
considering that the movant protestant/appellee 'is not challenging the sufficiency of
evidence in this instance but the appreciation thereof by the Commission (Second
Division).' Protestant/Appellee in his discussion of his motion for reconsideration (p. 205
of the records of the case/ p. 24 of the MR pleading) imploring the Commission En
Banc to review, re-examine and re-inspect the 111 ballots where the Trial Court and the
Division disagreed and make its own final findings and determination, in effect disputes
the ruling of the Second Division implying that the appreciation is contrary to law. Rule
19, Sec. 1 of the COMELEC Rules of Procedure enumerates the grounds that may be
raised in motions for reconsideration and one of which is that the decision, order or ruling
is contrary to law. Insufficiency of evidence to justify the decision, order, or ruling is not
the only ground for the filing of motions for reconsideration. xxx

5
"When protestant/appellee argued that the appreciation of the Division is erroneous, there
is the implication that such finding or ruling is contrary to law and thus, may be a proper
subject of a motion for reconsideration."

To determine the winning candidate, the application of election law and

jurisprudence in appreciating the contested ballots, is essential. Any question on the
appreciation of the ballots would directly affect the sufficiency of the evidence supporting
the declared winner. As the Solicitor General submits in his comment on the petition, any
question on the sufficiency of the evidence supporting the assailed decision, order or ruling
of a COMELEC Division is also a proper subject of a motion for reconsideration before
the COMELEC en banc.
Moreover, the opposing conclusions of the trial court and the COMELEC Second
Division should have prompted the COMELEC en banc to undertake an independent
appreciation of the contested ballots to see for itself which of the conflicting rulings is valid
and should be upheld.
Be that as it may, it is our considered opinion, and we rule, that the COMELEC en
banc gravely abused its discretion in declaring that the COMELEC Division's findings on
the contested ballots are findings of facts "that may not be the subject of a motion for
reconsideration".
On the second issue, petitioner argues that the findings, both by the trial court as well
as the COMELEC's Second Division, are similar - that said 120 ballots (Exhs "R," "R-1"
and series) indeed, had markings but the trial court and the COMELEC Second Division
differed in their conclusion. The trial court nullified the ballots (supposedly in favor of
herein private respondent) for being admittedly marked. On the other hand, the Second
Division declared the ballots valid because the marks were allegedly placed by third
person/s, purposely to invalidate the ballots. Petitioner alleges that respondent COMELEC
en banc gravely abused its discretion in presuming that the markings found on the ballots
have been made by third persons, absent concrete evidence showing that they were placed
by the voters themselves.
Petitioner is correct that there is no such presumption in law. Instead, the legal
presumption is that the sanctity of the ballot has been protected and preserved. Where the
ballot, however, shows distinct and marked dissimilarities in the writing of the names of
some candidates from the rest, the ballot is void for having been written by two hands.[4] A
ballot appearing to have been written by two persons is presumed to have been cast "as is"
during the voting, and this presumption can only be overcome by showing that the ballot
was tampered with after it was deposited in the ballot box. [5]
If the COMELEC Second Division found markings in the contested 111 ballots that
were placed by persons other than the voters themselves, then it should not have validated
them. To rule the way it did, would require a showing that the integrity of ballots has not
been violated. Otherwise, the presumption that they were placed "as is" in the ballot box
stands.

6
 In his Comment, the Solicitor General raised the following significant questions: "In
the absence of showing that the ballot boxes were violated and that somebody else had
access to the ballots, how was the COMELEC able to conclude that indeed said marks were
placed by persons other than the voters?" Indeed, the poll body is mum on how third
persons were able to access the questioned ballots. Furthermore, the COMELEC Second
Division neither made a categorical finding as to whether the different markings on the
ballots were deliberately placed so as to sufficiently identify them or not. Yet, the
COMELEC en banc simplistically concluded that there was "nothing left for xxx [it] but
to affirm the VALIDITY of the questioned 120 ballots in favor of protestee-appellant
Hilario de Guzman, Jr."
In view of the foregoing circumstances, it appears that the COMELEC en banc was
remiss in its duties to properly resolve the Motion for Reconsideration before it. It should
have given a close scrutiny of the questioned ballots and determined for itself their validity,
i.e., whether they were marked ballots or not. There is truly a need to actually examine the
questioned ballots in order to ascertain the real nature of the alleged markings thereon. One
has to see the writings to be able to determine whether they were written by different
persons, and whether they were intended to identify the ballot.
WHEREFORE, the case is hereby remanded to the COMELEC en banc for it to
physically re-examine the contested ballots and ascertain their validity. It is further directed
to resolve this case within thirty (30) days from receipt of this decision in view of the
proximity of the next elections.
This decision is immediately executory.
SO ORDERED.

7
 EN BANC
[G.R. No. 139853. September 5, 2000]

FERDINAND THOMAS M. SOLLER, petitioner, vs. COMMISSION ON

ELECTIONS, REGIONAL TRIAL COURT OF PINAMALAYAN,
ORIENTAL MINDORO (Branch 42) and ANGEL M.
SAULONG, respondents.
RESOLUTION
QUISUMBING, J.:

This special civil action for certiorari seeks to annul the resolution promulgated on
August 31, 1999, in COMELEC special relief case SPR No. 10-99. The resolution
dismissed petitioner's petition to set aside the orders of the Regional Trial Court of
Pinamalayan, Oriental Mindoro, dated October 1, 1998 and February 1, 1999, which denied
petitioner's motion to dismiss the election protest filed by private respondent against
petitioner and the motion for reconsideration, respectively.
Petitioner and private respondent were both candidates for mayor of the municipality
of Bansud, Oriental Mindoro in the May 11, 1998 elections. On May 14, 1998, the
municipal board of canvassers proclaimed petitioner Ferdinand Thomas Soller duly elected
mayor.
On May 19, 1998, private respondent Angel Saulong filed with the COMELEC a
"petition for annulment of the proclamation/exclusion of election return". [1] On May 25,
1998, private respondent filed with the Regional Trial Court of Pinamalayan, Oriental
Mindoro, an election protest against petitioner docketed as EC-31-98.
On June 15, 1998, petitioner filed his answer with counter-protest. Petitioner also
moved to dismiss private respondent's protest on the ground of lack of jurisdiction, forum-
shopping, and failure to state cause of action.[2]
On July 3, 1998, COMELEC dismissed the pre-proclamation case filed by private
respondent.
On October 1, 1998, the trial court denied petitioner's motion to dismiss. Petitioner
moved for reconsideration but said motion was denied. Petitioner then filed with the
COMELEC a petition for certiorari contending that respondent RTC acted without or in
excess of jurisdiction or with grave abuse of discretion in not dismissing private
respondent's election protest.
On August 31, 1999, the COMELEC en banc dismissed petitioner's suit. The
election tribunal held that private respondent paid the required filing fee. It also declared
that the defect in the verification is a mere technical defect which should not bar the

8
determination of the merits of the case. The election tribunal stated that there was no forum
shopping to speak of.
Under the COMELEC Rules of Procedure, a motion for reconsideration of its en
banc ruling is prohibited except in a case involving an election offense.[3] Since the present
controversy involves no election offense, reconsideration is not possible and petitioner has
no appeal or any plain, speedy and adequate remedy in the ordinary course of
law. Accordingly, petitioner properly filed the instant petition for certiorari with this
Court.
On September 21, 1999, we required the parties to maintain the status quo
ante prevailing as of September 17, 1999, the date of filing of this petition.
Before us, petitioner asserts that the COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction:
[I]
... IN AFFIRMING RESPONDENT RTC'S REFUSAL TO DISMISS PRIVATE
RESPONDENT'S ELECTION PROTEST DESPITE HIS (sic) LACK OF
JURISDICTION OVER THE SAME BY REASON OF THE FAILURE OF THE
PRIVATE RESPONDENT TO PAY ALL THE REQUISITE FILING FEES.

[II]
... IN AFFIRMING RESPONDENT'S RTC'S REFUSAL TO DISMISS PRIVATE
RESPONDENT'S ELECTION PROTEST DESPITE THE INSUFFICIENCY OF
HIS PETITION IN FORM AND SUBSTANCE AND ITS FAILURE TO STATE
A CAUSE OF ACTION.

[III]
...IN AFFIRMING RESPONDENT RTC'S REFUSAL TO DISMISS THE
ELECTION PROTEST BELOW ON THE GROUNDS OF FORUM-SHOPPING
AND FAILURE TO COMPLY WITH THE SUPREME COURT CIRCULAR
REQUIRING A TRUTHFUL CERTIFICATION OF NON-FORUM SHOPPING
DESPITE INCONTROVERTIBLE EVIDENCE THEREOF.[4]

In our view, notwithstanding petitioner's formulation of issues, the principal question

presented for our resolution is whether or not public respondent COMELEC gravely
abused its discretion amounting to lack or excess of jurisdiction in not ordering the
dismissal of private respondent's election protest.
At the outset, even if not squarely raised as an issue, this Court needs to resolve the
question concerning COMELEC's jurisdiction. Unless properly resolved, we cannot
proceed further in this case.

9
 Section 3, Subdivision C of Article IX of the Constitution reads:
"The Commission on Elections may sit en banc or in two divisions, and shall promulgate
its rules of procedure in order to expedite the 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 decision shall be decided by the
Commission en banc."

Thus, in Sarmiento vs. COMELEC[5] and in subsequent cases,[6] we ruled that the
COMELEC, sitting en banc, does not have the requisite authority to hear and decide
election cases including pre-proclamation controversies in the first instance. This power
pertains to the divisions of the Commission. Any decision by the Commission en banc as
regards election cases decided by it in the first instance is null and void.
As can be gleaned from the proceedings aforestated, petitioner's petition with the
COMELEC was not referred to a division of that Commission but was, instead, submitted
directly to the Commission en banc. The petition for certiorari assails the trial court's order
denying the motion to dismiss private respondent's election protest. The questioned order
of the trial court is interlocutory because it does not end the trial court's task of adjudicating
the parties' contentions and determining their rights and liabilities as regards each
other.[7] In our view, the authority to resolve petition for certiorari involving incidental
issues of election protest, like the questioned order of the trial court, falls within the
division of the COMELEC and not on the COMELEC en banc. Note that the order denying
the motion to dismiss is but an incident of the election protest. If the principal case, once
decided on the merits, is cognizable on appeal by a division of the COMELEC, then, there
is no reason why petitions for certiorari relating to incidents of election protest should not
be referred first to a division of the COMELEC for resolution. Clearly, the COMELEC en
banc acted without jurisdiction in taking cognizance of petitioner's petition in the first
instance.
Since public respondent COMELEC had acted without jurisdiction in this case, the
petition herein is without doubt meritorious and has to be granted. But in order to
write finis to the controversy at bar, we are constrained to also resolve the issues raised by
petitioner, seriatim.
Petitioner contends that private respondent's protest should have been dismissed
outright as the latter failed to pay the amount of P300.00 filing fee required under the
COMELEC rules.[8] Petitioner's contention is supported by Section 9, Rule 35 of the
COMELEC Rules of Procedure[9] and corresponding receipts[10] itemized as follows:
P368.00 - Filing fee in EC 31-98, O.R. 7023752;

P 32.00 - Filing fee in EC 31-98, O.R. 7022478;

P 46.00 - Summons fee in EC 31-98, O.R. 7023752;

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P 4.00 - Summons fee in EC 31-98, O.R. 4167602;

P 10.00 -- Legal Research Fund fee, O.R. 2595144, and;

P 5.00 -- Victim Compensation Fund, O.R. 4167979

-----------

P465.00

Close scrutiny of the receipts will show that private respondent failed to pay the filing
fee of P300.00 for his protest as prescribed by the COMELEC rules. The amount of
P368.00 for which OR 7023752 was issued for the Judiciary Development Fund as shown
by the entries in the cash book of the clerk of court.[11] Thus, only P32.00 with OR 7022478
credited to the general fund could be considered as filing fee paid by private respondent
for his protest. A court acquires jurisdiction over any case only upon the payment of the
prescribed docket fee.[12]Patently, the trial court did not acquire jurisdiction over private
respondent's election protest. Therefore, COMELEC gravely erred in not ordering the
dismissal of private respondent's protest case.
We have in a string of cases[13] had the occasion to rule on this matter. In Loyola
vs. COMELEC, the clerk of court assessed private respondent therein the incorrect filing
fee of P32.00 at the time of filing of the election protest. Upon filing his counter-protest,
petitioner was assessed to pay the same amount. Subsequently, the trial court remedied the
situation by directing the parties to pay the balance of P268.00. On review, we held that
the lapse was not at all attributable to private respondent and there was substantial
compliance with the filing fee requirement. The error lies in the Clerk's misapplication and
confusion regarding application of Section 9 of Rule 35 of the COMELEC Rules of
Procedure and this Court's resolution dated September 4, 1990 amending Rule 141 of the
Rules of Court. An election protest falls within the exclusive original jurisdiction of the
Regional Trial Court, in which case the Rules of Court will apply, and that the COMELEC
Rules of Procedure is primarily intended to govern election cases before that tribunal. But
the Court declared that this decision must not provide relief to parties in future cases
involving inadequate payment of filing fees in election cases. Our decisions
in Pahilan and Gatchalian bar any claim of good faith, excusable negligence or mistake in
any failure to pay the full amount of filing fees in election cases.
In Miranda vs. Castillo, private respondents each paid per assessment the amount of
P465.00 as filing fees. Of this amount, P414.00 was allocated for the JDF, P 10.00 for legal
research fund, P5.00 for victim compensation fee, and only the amount of P32.00 was
regarded as filing fee. The Court considered the amount as partial payment of the P300.00
filing fee under the COMELEC rules and required payment of the deficiency in the amount
of P268.00. But then again, the Court reiterated the caveat that in view of Pahilan,
Gatchalian, and Loyola cases we would no longer tolerate any mistake in the payment of

11
the full amount of filing fees for election cases filed after the promulgation of
the Loyola decision on March 27, 1997.
Clearly then, errors in the payment of filing fees in election cases is no longer
excusable. And the dismissal of the present case for that reason is, in our view, called for.
Besides, there is another reason to dismiss private respondent's election protest. We
note that the verification of aforesaid protest is defective. In the verification, private
respondent merely stated that he caused the preparation of his petition and he has read and
understood all the allegations therein.[14] Certainly, this is insufficient as private respondent
failed to state that the contents of his election protest are true and correct of his persoral
knowledge.[15] Since the petition lacks proper verification, it should be treated as an
unsigned pleading and must be dismissed.[16]
Further, we find that private respondent did not comply with the required
certification against forum shopping. Private respondent successively filed a "petition for
annulment of the proclamation/exclusion of election return" and an election protest. Yet,
he did not disclose in his election protest that he earlier filed a petition for annulment of
proclamation/exclusion of election returns.
It could be argued that private respondent's petition for annulment of
proclamation/exclusion of election returns was a pre-proclamation case. The issues raised
in that petition pertain to the preparation and appreciation of election returns and the
proceedings of the municipal board of canvassers. But note that such petition was filed
after the proclamation of petitioner as the winning candidate, thus, the petition was no
longer viable, for pre-proclamation controversies may no longer be entertained by the
COMELEC after the winning candidates have been proclaimed. It might even be claimed
with some reason that private respondent, by resorting to the wrong remedy, abandoned
his pre-proclamation case earlier filed.[17]
Nonetheless, private respondent's belief that he no longer had a pending case before
the COMELEC because he deemed it abandoned upon filing of his protest is not a valid
reason for non-disclosure of the pendency of said pre-proclamation case. Note that the
COMELEC dismissed private respondent's pre-proclamation case only on July 3,
1998. Before the dismissal, said case was legally still pending resolution. Similarly, the
fact that private respondent's protest was not based on the same cause of action as his pre-
proclamation case is not a valid excuse for not complying with the required disclosure in
the certification against forum shopping. The requirement to file a certificate of non-forum
shopping is mandatory. Failure to comply with this requirement cannot be excused by the
fact that a party is not guilty of forum shopping. The rule applies to any complaint, petition,
application or other initiatory pleading, regardless of whether the party filing it has actually
committed forum shopping. Every party filing any initiatory pleading is required to swear
under oath that he has not and will not commit forum shopping. Otherwise we would have
an absurd situation, as in this case, where the parties themselves would be the judge of
whether their actions constitute a violation of the rule, and compliance therewith would
depend on their belief that they might or might not have violated the requirement. Such
interpretation of the requirement would defeat the very purpose of the rule.[18]

12
 Taking into account all the foregoing circumstances in this case, we are persuaded
that respondent Regional Trial Court erred and committed grave abuse of discretion in
failing to dismiss private respondent's election protest against petitioner. And to reiterate,
respondent COMELEC en banc had no jurisdiction to affirm the refusal of respondent trial
court to dismiss private respondent's election protest.
WHEREFORE, the instant petition is GRANTED. The assailed RESOLUTION of
public respondent COMELEC is hereby ANNULLED AND SET ASIDE. The temporary
restraining order issued by this Court on September 21, 1999, is made permanent. The
Regional Trial Court of Pinamalayan, Oriental Mindoro, Branch 42, is hereby ordered to
DISMISS election protest EC No. 31-98. Costs against private respondent.
SO ORDERED.

13
 EN BANC

[G.R. No. 143398. October 25, 2000]

RUPERTO A. AMBIL, JR., petitioner, vs. THE COMMISSION ON ELECTIONS

(FIRST DIVISION, FORMERLY SECOND DIVISION) and JOSE T.
RAMIREZ, respondents.

DECISION
PARDO, J.:

The case before the Court is a special civil action for certiorari and prohibition with
preliminary injunction or temporary restraining order seeking to nullify the order dated
June 15, 2000 of the Commission on Elections (Comelec), First
Division,[1] giving notice to the parties of the promulgation of the resolution on the
case entitled Jose T. Ramirez, Protestee, versus Ruperto A. Ambil, Jr., Election Protest
Case No. 98-29, on June 20, 2000, at 2:00 in the afternoon and to prohibit the respondent
Commission on Election from promulgating the so called Guiani ponencia.[2]
The facts are as follows:
Petitioner Ruperto A. Ambil, Jr. and respondent Jose T. Ramirez were candidates for
the position of Governor, Eastern Samar, during the May 11, 1998 elections. [3] On May 16,
1998, the Provincial Board of Canvassers proclaimed Ruperto A. Ambil, Jr. as the duly
elected Governor, Eastern Samar, having obtained 46,547 votes, the highest number of
votes in the election returns.
On June 4, 1998, respondent Ramirez who obtained 45,934 votes, the second highest
number of votes, filed with the Comelec, an election protest[4] challenging the results in a
total of 201 precincts.[5] The case was assigned to the First Division (formerly Second),
Commission on Elections.[6]
On January 27, 2000, Commissioner Japal M. Guiani prepared and signed a
proposed resolution in the case. To such proposed ponencia, Commissioner Julio F.
Desamito dissented.Commissioner Luzviminda G. Tancangco at first did not indicate her
vote but said that she would wish to see both positions, if any, to make her (my) final
decision.[7]
In the meantime, on February 15, 2000, Commissioner Guiani retired from the
service. On March 3, 2000, the President of the Philippines appointed Commissioner

14
Rufino S. Javier to the seat vacated by Commissioner Guiani. Commissioner Javier
assumed office on April 4, 2000.
On or about February 24, 2000, petitioner Ambil and respondent Ramirez received a
purported resolution promulgated on February 14, 2000, signed by Commissioner Guiani
and Tancangco, with Commissioner Desamito dissenting. The result was in favor of
respondent Ramirez who was declared winner by a margin of 1,176 votes. [8] On February
28, 2000, the Comelec, First Division, declared that the thirteen-page resolution is a useless
scrap of paper which should be ignored by the parties in this case there being no
promulgation of the Resolution in the instant case. [9]
On March 31, 2000, the Comelec, First Division, issued an order setting the
promulgation of the resolution in the case (EPC Case No. 98-29) on April 6, 2000, at 2:00
in the afternoon.[10] However, on April 6, 2000, petitioner Ambil filed a motion to cancel
promulgation challenging the validity of the purported
Guiani resolution. The Comelec, First Division, acting on the motion, on the same date,
postponed the promulgation until this matter is resolved.[11]
On June 14, 2000, two members of the First Division, namely, Commissioners
Luzviminda G. Tancangco and Rufino S. Javier, sent a joint memorandum to
Commissioner Julio F. Desamito, presiding Commissioner, stating:

Pursuant to your recommendation in your April 18, 2000 Memorandum to the

Commission En Banc that this case be submitted for a reconsultation by the members of
the First Division, it is our position that we promulgate as soon as possible the Guiani
Resolution of the case. This is notwithstanding the Jamil vs. Comelec (283 SCRA 349),
Solidbank vs. IAC (G. R. No. 73777) and other doctrinal cases on the issue. After all, this
Commission stood pat on its policy that what is controlling is the date the ponente signed
the questioned Resolution as what we did in promulgating the case of Dumayas vs.
Bernal (SPC 98-137).

In view of the foregoing, we recommend that we proceed with the promulgation of the
subject resolution and let the aggrieved party challenge it through a Motion for
Reconsideration before the Commission en banc or through a certiorari case before the
Supreme Court.[12]

On June 15, 2000, the Comelec, First Division, through Commissioner Julio F. Desamito,
issued an order setting the promulgation of the resolution in the case on June 20, 2000, at
2:00 oclock in the afternoon.[13]

Without waiting for the promulgation of the resolution, on June 19, 2000, petitioner
interposed the instant petition.[14]
Petitioner Ambil seeks to annul the order dated June 15, 2000 setting the
promulgation of the resolution of the case (EPC Case No. 98-29) on June 20, 2000 at 2:00
in the afternoon, and prohibiting the Comelec, First Division, from promulgating the

15
purported Guiani resolution and directing the Comelec, First Division, to deliberate anew
on the case and to promulgate the resolution reached in the case after such deliberation.[15]
On June 20, 2000, we issued a temporary restraining order enjoining respondent
Comelec from implementing the June 15, 2000 order for the promulgation of the resolution
set on June 20, 2000 at 2:00 in the afternoon. At the same time, the Court directed the
respondents to comment on the petition within ten (10) days from notice. [16]
On July 10, 2000, respondent Ramirez filed his comment. [17] Respondent Ramirez
admitted that the proposed resolution of Commissioner Guiani was no longer valid after
his retirement on February 15, 2000.[18] He submitted that Comelec, First Division, its
membership still constituting a majority, must elevate the protest case to the Comelec en
banc until resolved with finality.[19]
In his comment filed on August 29, 2000, the Solicitor General interposed no
objection to the petition.[20]
At issue in this petition is whether Comelec, First Division, in scheduling the
promulgation of the resolution in the case (EPC Case No. 98-29) acted without jurisdiction
or with grave abuse of discretion amounting to lack of jurisdiction.
We find the petition without merit.
To begin with, the power of the Supreme Court to review decisions of the Comelec
is prescribed in the Constitution, as follows:

Section 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
bythis 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.[21] [emphasis supplied]

We have interpreted this provision to mean final orders, rulings and decisions of the
COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers.[22] This
decision must be a final decision or resolution of the Comelec en banc,[23] not of a
division,[24] certainly not an interlocutory order of a division.[25] The Supreme Court has
no power to review via certiorari, an interlocutory order or even a final resolution of a
Division of the Commission on Elections.[26]

The mode by which a decision, order or ruling of the Comelec en banc may be
elevated to the Supreme Court is by the special civil action of certiorari under Rule 65 of
the 1964 Revised Rules of Court, now expressly provided in Rule 64, 1997 Rules of Civil
Procedure, as amended.[27]

16
 Rule 65, Section 1, 1997 Rules of Civil Procedure, as amended, requires that there
be no appeal, or any plain, speedy and adequate remedy in the ordinary course of
law. A motion for reconsideration is a plain and adequate remedy provided by
law.[28] Failure to abide by this procedural requirement constitutes a ground for
dismissal of the petition.[29]
In like manner, a decision, order or resolution of a division of the Comelec must be
reviewed by the Comelec en banc via a motion for reconsideration before the final en
banc decision may be brought to the Supreme Court on certiorari. The pre-requisite filing
of a motion for reconsideration is mandatory.[30] Article IX-C, Section 3, 1987 Constitution
provides as follows:

Section 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. [emphasis supplied]

Similarly, the Rules of Procedure of the Comelec provide that a decision of a division
may be raised to the en banc via a motion for reconsideration.[31]
The case at bar is an election protest involving the position of Governor, Eastern
Samar.[32] It is within the original jurisdiction of the Commission on Elections in
division.[33] Admittedly, petitioner did not ask for a reconsideration of the divisions
resolution or final decision.[34] In fact, there was really no resolution or decision to speak
of [35] because there was yet no promulgation, which was still scheduled on June 20, 2000
at 2:00 oclock in the afternoon. Petitioner went directly to the Supreme Court from an order
of promulgation of the Resolution of this case by the First Division of the Comelec. [36]
Under the existing Constitutional scheme, a party to an election case within the
jurisdiction of the Comelec in division can not dispense with the filing of a motion for
reconsideration of a decision, resolution or final order of the Division of the Commission
on Elections because the case would not reach the Comelec en banc without such motion
for reconsideration having been filed and resolved by the Division.
The instant case does not fall under any of the recognized exceptions to the rule in
certiorari cases dispensing with a motion for reconsideration prior to the filing of a
petition.[37] In truth, the exceptions do not apply to election cases where a motion for
reconsideration is mandatory by Constitutional fiat to elevate the case to the Comelec en
banc, whose final decision is what is reviewable via certiorari before the Supreme
Court.[38]
We are aware of the ruling in Kho v. Commission on Elections,[39] that in a situation
such as this where the Commission on Elections in division committed grave abuse of
discretion or acted without or in excess of jurisdiction in issuing interlocutory orders
relative to an action pending before it and the controversy did not fall under any of the
instances mentioned in Section 2, Rule 3 of the COMELEC Rules of Procedure, the remedy

17
of the aggrieved party is not to refer the controversy to the Commission en banc as this is
not permissible under its present rules but to elevate it to this Court via a petition for
certiorari under Rule 65 of the Rules of Court. This is the case relied upon by the dissenting
justice to support the proposition that resort to the Supreme Court from a resolution of a
Comelec Division is allowed.[40] Unfortunately, the Kho case has no application to the case
at bar. The issue therein is, may the Commission on Elections in division admit an answer
with counter-protest after the period to file the same has expired? [41] The Comelec
First Division admitted the answer with counter-protest of the respondent. The Supreme
Court declared such order void for having been issued with grave abuse of discretion
tantamount to lack of jurisdiction.[42] However, an important moiety in the Kho case was
not mentioned in the dissent. It is that the Comelec, First Division, denied the prayer of
petitioner for the elevation of the case to en banc because the orders of admission were
mere interlocutory orders.[43] Hence, the aggrieved party had no choice but to seek
recourse in the Supreme Court. Such important fact is not present in the case at bar.
We must emphasize that what is questioned here is the order dated June 15, 2000,
which is a mere notice of the promulgation of the resolution in EPC Case No. 98-29. We
quote the order in question in full, to wit:

Pursuant to Section 5 of Rule 18 of the COMELEC RULES OF PROCEDURE, and the

Joint Memorandum of Commissioners Luzviminda G. Tancangco and Rufino S. Javier to
the Presiding Commissioner of the First Division dated 14 June 2000 paragraph 5 of
which states:

In view of the foregoing, we recommend that we proceed with the

promulgation of the subject resolution and let the aggrieved party challenge it through a
Motion for Reconsideration before the Commission en banc or through a certiorari case
before the Supreme Court.

the promulgation of the Resolution in this case is hereby set on Tuesday, June 20,
2000 at 2:00 oclock in the afternoon at the Comelec Session Hall, Intramuros, Manila.

No further motion for postponement of the promulgation shall be entertained.

The Clerk of the Commission is directed to give the parties, through their Attorneys,
notice of this Order through telegram and by registered mail or personal delivery.

SO ORDERED.

Given this 15th day of June, 2000 in the City of Manila, Philippines.

FOR THE
DIVISION:

18
 [Sgd.] JULIO
F. DESAMITO
Presiding
Commissioner[44]
There is nothing irregular about the order of promulgation of the resolution in the
case, except in the mind of suspicious parties. Perhaps what was wrong in the order was
the reference to the memorandum of the two commissioners that was not necessary and
was a superfluity, or excessus in linguae. All the members of the Division were incumbent
Commissioners of the Commission on Elections (COMELEC) and had authority to decide
the case in the Division. What appears to be patently null and void is the so-called
Guiani resolution if it is the one to be promulgated. We cannot assume that the Comelec
will promulgate a void resolution and violate the Constitution and the law. We must assume
that the members of the Commission in Division or en banc are sworn to uphold and will
obey the Constitution.
Consequently, the Guiani resolution is not at issue in the case at bar. No one knows
the contents of the sealed envelope containing the resolution to be promulgated on June 20,
2000, simply because it has not been promulgated!
It may be true that the parties received a copy of what purports to be the Guiani
resolution,[45] declaring respondent Jose T. Ramirez the victor in the case. Such Guiani
resolution is admitted by the parties and considered by the Commission on Elections as
void. The Solicitor General submitted an advice that the same resolution is deemed vacated
by the retirement of Commissioner Guiani on February 15, 2000. [46] It can not be
promulgated anymore for all legal intents and purposes.
We rule that the so-called Guiani resolution is void for the following reasons:
First: A final decision or resolution becomes binding only after it is promulgated
and not before. Accordingly, one who is no longer a member of the Commission at the
time the final decision or resolution is promulgated cannot validly take part in that
resolution or decision.[47] Much more could he be the ponente of the resolution or
decision. The resolution or decision of the Division must be signed by a majority of its
members and duly promulgated.
Commissioner Guiani might have signed a draft ponencia prior to his retirement
from office, but when he vacated his office without the final decision or resolution having
been promulgated, his vote was automatically invalidated. [48] Before that resolution or
decision is so signed and promulgated, there is no valid resolution or decision to speak
of.[49]
Second: Atty. Zacarias C. Zaragoza, Jr., Clerk of the First Division, Commission on
Elections, denied the release or promulgation of the Guiani resolution. He disowned the
initials on the face of the first page of the resolution showing its promulgation on February
14, 2000, and said that it was a forgery. There is no record in the Electoral Contests and
Adjudication Department (ECAD) of the Commission on Election that a resolution on the
main merits of the case was promulgated.[50]

19
 Third: By an order dated February 28, 2000, the Comelec, First
Division, disclaimed the alleged thirteen (13) page resolution for being a useless scrap
of paper which should be ignored by the parties there being no promulgation of the
resolution in the case.[51]
Fourth: It is unlikely that Commissioner Tancangco affixed her signature on the
Guiani resolution. On the date that it was purportedly promulgated, which was
February 14, 2000, the Division issued an order where Commissioner Tancangco
expressed her reservations and stated that she wished to see both positions, if any,
before she made her final decision.[52]
A final decision or resolution of the Comelec, in Division or en banc is promulgated
on a date previously fixed, of which notice shall be served in advance upon the parties
or their attorneys personally or by registered mail or by telegram. [53]
It is jurisprudentially recognized that at any time before promulgation of a decision
or resolution, the ponente may change his mind.[54] Moreover, in this case, before a final
decision or resolution could be promulgated, the ponente retired and a new commissioner
appointed. And the incoming commissioner has decided to take part in the resolution of
the case. It is presumed that he had taken the position of his predecessor because he co-
signed the request for the promulgation of the Guiani resolution. [55]
If petitioner were afraid that what would be promulgated by the Division was the
Guiani resolution, a copy of which he received by mail, which, as heretofore stated, was
not promulgated and the signature thereon of the clerk of court was a forgery, petitioner
could seek reconsideration of such patently void resolution and thereby the case would be
elevated to the Commission en banc.[56]
Considering the factual circumstances, we speculated ex mero motu that the Comelec
would promulgate a void resolution.
The sea of suspicion has no shore, and the court that embarks upon it is without
rudder or compass.[57] We must not speculate that the Comelec would still promulgate a
void resolution despite knowledge that it is invalid or void ab initio.
Consequently, the filing of the instant petition before this Court was
premature. Petitioner failed to exhaust adequate administrative remedies available before
the COMELEC.
In a long line of cases, this Court has held consistently that before a party is allowed
to seek the intervention of the court, it is a pre-condition that he should have availed of all
the means of administrative processes afforded him. Hence, if a remedy within the
administrative machinery can still be resorted to by giving the administrative officer
concerned every opportunity to decide on a matter that comes within his jurisdiction, then
such remedy should be exhausted first before the courts judicial power can be sought. The
premature invocation of courts intervention is fatal to ones cause of action.[58]

20
 This is the rule on exhaustion of administrative remedies. A motion for
reconsideration then is a pre-requisite to the viability of a special civil action for certiorari,
unless the party who avails of the latter can convincingly show that his case falls under any
of the following exceptions to the rule: (1) when the question is purely legal, (2) where
judicial intervention is urgent, (3) where its application may cause great and irreparable
damage, (4) where the controverted acts violate due process, (5) failure of a high
government official from whom relief is sought to act on the matter, and seeks when the
issue for non-exhaustion of administrative remedies has been rendered moot. [59]
This doctrine of exhaustion of administrative remedies was not without its practical
and legal reasons, for one thing, availment of administrative remedy entails lesser expenses
and provides for a speedier disposition of controversies. It is no less true to state that the
courts of justice for reasons of comity and convenience will shy away from a dispute until
the system of administrative redress has been completed and complied with so as to give
the administrative agency concerned every opportunity to correct its error and to dispose
of the case. However, we are not amiss to reiterate that the principal of exhaustion of
administrative remedies as tested by a battery of cases is not an ironclad rule. This doctrine
is a relative one and its flexibility is called upon by the peculiarity and uniqueness of the
factual and circumstantial settings of a case. Hence, it is disregarded (1) when there is a
violation of due process, (2) when the issue involved is purely a legal question, (3) when
the administrative action is patently illegal amounting to lack or excess of jurisdiction, (4)
when there is estoppel on the part of the administrative agency concerned, (5) when there
is irreparable injury, (6) when the respondent is a department secretary whose acts as an
alter ego of the president bears the implied and assumed approval of the latter, (7) when to
require exhaustion of administrative remedies would be unreasonable, (8) when it would
amount to a nullification of a claim, (9) when the subject matter is a private land in land
case proceedings, (10) when the rule does not provide a plain, speedy and adequate remedy,
and (11) when there are circumstances indicating the urgency of judicial
intervention.[60] The administrative authorities must be given an opportunity to act and
correct the errors committed in the administrative forum. [61] Only after administrative
remedies are exhausted may judicial recourse be allowed.[62]
This case does not fall under any of the exceptions and indeed, as heretofore stated,
the exceptions do not apply to an election case within the jurisdiction of the Comelec in
Division.
Hence, the petition at bar must be dismissed for prematurity. Failure to exhaust
administrative remedies is fatal to a party's cause of action and a dismissal based on that
ground is tantamount to a dismissal based on lack of cause of action.[63]
WHEREFORE, the Court hereby DISMISSES the petition for prematurity.
The Court orders the Commission on Elections, First Division, to resolve with all
deliberate dispatch Election Protest Case No. 98-29 and to promulgate its resolution
thereon adopted by majority vote within thirty (30) days from notice hereof.
The temporary restraining order issued on June 20, 2000, is hereby lifted and
dissolved, effective immediately.

21
No costs.
SO ORDERED.

22
 EN BANC

[G.R. No. 133486. January 28, 2000]

ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON

ELECTIONS, respondent.

DECISION

PANGANIBAN, J.:

The holding of exit polls and the dissemination of their results through mass media
constitute an essential part of the freedoms of speech and of the press. Hence, the
Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and
credible elections. Quite the contrary, exit polls -- properly conducted and publicized --
can be vital tools in eliminating the evils of election-fixing and fraud. Narrowly tailored
countermeasures may be prescribed by the Comelec so as to minimize or suppress the
incidental problems in the conduct of exit polls, without transgressing in any manner the
fundamental rights of our people.

The Case and the Facts

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing
Commission on Elections (Comelec) en banc Resolution No. 98-1419[1] dated April 21,
1998. In the said Resolution, the poll body

"RESOLVED to approve the issuance of a restraining order to stop

ABS-CBN or any other groups, its agents or representatives from
conducting such exit survey and to authorize the Honorable
Chairman to issue the same."

The Resolution was issued by the Comelec allegedly upon "information from [a] reliable
source that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct
radio-TV coverage of the elections x x x and to make [an] exit survey of the x x x vote
during the elections for national officials particularly for President and Vice President,
results of which shall be [broadcast] immediately."[2] The electoral body believed that
such project might conflict with the official Comelec count, as well as the unofficial
quick count of the National Movement for Free Elections (Namfrel). It also noted that it
had not authorized or deputized Petitioner ABS-CBN to undertake the exit survey.

On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by
petitioner. We directed the Comelec to cease and desist, until further orders, from

23
implementing the assailed Resolution or the restraining order issued pursuant thereto, if
any. In fact, the exit polls were actually conducted and reported by media without any
difficulty or problem.

The Issues

Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with
grave abuse of discretion amounting to a lack or excess of jurisdiction when it approved
the issuance of a restraining order enjoining the petitioner or any [other group], its agents
or representatives from conducting exit polls during the x x x May 11 elections." [3]

In his Memorandum,[4] the solicitor general, in seeking to dismiss the Petition, brings up
additional issues: (1) mootness and (2) prematurity, because of petitioner's failure to seek
a reconsideration of the assailed Comelec Resolution.

The Court's Ruling

The Petition[5] is meritorious.

Procedural Issues: Mootness and Prematurity

The solicitor general contends that the petition is moot and academic, because the May
11, 1998 election has already been held and done with. Allegedly, there is no longer any
actual controversy before us.

The issue is not totally moot. While the assailed Resolution referred specifically to the
May 11, 1998 election, its implications on the people's fundamental freedom of
expression transcend the past election. The holding of periodic elections is a basic feature
of our democratic government. By its very nature, exit polling is tied up with elections.
To set aside the resolution of the issue now will only postpone a task that could well crop
up again in future elections.[6]

In any event, in Salonga v. Cruz Pano, the Court had occasion to reiterate that it "also has
the duty to formulate guiding and controlling constitutional principles, precepts,
doctrines, or rules. It has the symbolic function of educating bench and bar on the extent
of protection given by constitutional guarantees."[7] Since the fundamental freedoms of
speech and of the press are being invoked here, we have resolved to settle, for the
guidance of posterity, whether they likewise protect the holding of exit polls and the
dissemination of data derived therefrom.

24
The solicitor general further contends that the Petition should be dismissed for
petitioner's failure to exhaust available remedies before the issuing forum, specifically the
filing of a motion for reconsideration.

This Court, however, has ruled in the past that this procedural requirement may be
glossed over to prevent a miscarriage of justice,[8] when the issue involves the principle
of social justice or the protection of labor,[9] when the decision or resolution sought to be
set aside is a nullity,[10] or when the need for relief is extremely urgent and certiorari is
the only adequate and speedy remedy available.[11]

The instant Petition assails a Resolution issued by the Comelec en banc on April 21,
1998, only twenty (20) days before the election itself. Besides, the petitioner got hold of a
copy thereof only on May 4, 1998. Under the circumstances, there was hardly enough
opportunity to move for a reconsideration and to obtain a swift resolution in time for the
May 11, 1998 elections. Moreover, not only is time of the essence; the Petition involves
transcendental constitutional issues. Direct resort to this Court through a special civil
action for certiorari is therefore justified.

Main Issue: Validity of Conducting Exit Polls

An exit poll is a species of electoral survey conducted by qualified individuals or groups

of individuals for the purpose of determining the probable result of an election by
confidentially asking randomly selected voters whom they have voted for, immediately
after they have officially cast their ballots. The results of the survey are announced to the
public, usually through the mass media, to give an advance overview of how, in the
opinion of the polling individuals or organizations, the electorate voted. In our electoral
history, exit polls had not been resorted to until the recent May 11, 1998 elections.

In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible

member of the mass media, committed to report balanced election-related data, including
"the exclusive results of Social Weather Station (SWS) surveys conducted in fifteen
administrative regions."

It argues that the holding of exit polls and the nationwide reporting of their results are
valid exercises of the freedoms of speech and of the press. It submits that, in precipitately
and unqualifiedly restraining the holding and the reporting of exit polls, the Comelec
gravely abused its discretion and grossly violated the petitioner's constitutional rights.

Public respondent, on the other hand, vehemently denies that, in issuing the assailed
Resolution, it gravely abused its discretion. It insists that the issuance thereof was
"pursuant to its constitutional and statutory powers to promote a clean, honest, orderly
and credible May 11, 1998 elections"; and "to protect, preserve and maintain the secrecy
and sanctity of the ballot." It contends that "the conduct of exit surveys might unduly

25
confuse and influence the voters," and that the surveys were designed "to condition the
minds of people and cause confusion as to who are the winners and the [losers] in the
election," which in turn may result in "violence and anarchy."

Public respondent further argues that "exit surveys indirectly violate the constitutional
principle to preserve the sanctity of the ballots," as the "voters are lured to reveal the
contents of ballots," in violation of Section 2, Article V of the Constitution;[12] and
relevant provisions of the Omnibus Election Code.[13] It submits that the constitutionally
protected freedoms invoked by petitioner "are not immune to regulation by the State in
the legitimate exercise of its police power," such as in the present case.

The solicitor general, in support of the public respondent, adds that the exit polls pose a
"clear and present danger of destroying the credibility and integrity of the electoral
process," considering that they are not supervised by any government agency and can in
general be manipulated easily. He insists that these polls would sow confusion among the
voters and would undermine the official tabulation of votes conducted by the
Commission, as well as the quick count undertaken by the Namfrel.

Admittedly, no law prohibits the holding and the reporting of exit polls. The question can
thus be more narrowly defined: May the Comelec, in the exercise of its powers, totally
ban exit polls? In answering this question, we need to review quickly our jurisprudence
on the freedoms of speech and of the press.

Nature and Scope of Freedoms of Speech and of the Press

The freedom of expression is a fundamental principle of our democratic government. It

"is a 'preferred' right and, therefore, stands on a higher level than substantive economic or
other liberties. x x x [T]his must be so because the lessons of history, both political and
legal, illustrate that freedom of thought and speech is the indispensable condition of
nearly every other form of freedom."[14]

Our Constitution clearly mandates that no law shall be passed abridging the freedom of
speech or of the press.[15] In the landmark case Gonzales v. Comelec,[16] this Court
enunciated that at the very least, free speech and a free press consist of the liberty to
discuss publicly and truthfully any matter of public interest without prior restraint.

The freedom of expression is a means of assuring individual self-fulfillment, of attaining

the truth, of securing participation by the people in social and political decision-making,
and of maintaining the balance between stability and change. [17] It represents a profound
commitment to the principle that debates on public issues should be uninhibited, robust,
and wide open.[18] It means more than the right to approve existing political beliefs or
economic arrangements, to lend support to official measures, or to take refuge in the
existing climate of opinion on any matter of public consequence. And paraphrasing the

26
eminent justice Oliver Wendell Holmes,[19] we stress that the freedom encompasses the
thought we hate, no less than the thought we agree with.

Limitations

The realities of life in a complex society, however, preclude an absolute exercise of the
freedoms of speech and of the press. Such freedoms could not remain unfettered and
unrestrained at all times and under all circumstances.[20] They are not immune to
regulation by the State in the exercise of its police power. [21] While the liberty to think is
absolute, the power to express such thought in words and deeds has limitations.

In Cabansag v. Fernandez[22] this Court had occasion to discuss two theoretical tests
in determining the validity of restrictions to such freedoms, as follows:

"These are the 'clear and present danger' rule and the 'dangerous
tendency' rule. The first, as interpreted in a number of cases, means
that the evil consequence of the comment or utterance must be
'extremely serious and the degree of imminence extremely high'
before the utterance can be punished. The danger to be guarded
against is the 'substantive evil' sought to be prevented. x x x"[23]

"The 'dangerous tendency' rule, on the other hand, x x x may be

epitomized as follows: If the words uttered create a dangerous
tendency which the state has a right to prevent, then such words are
punishable. It is not necessary that some definite or immediate acts of
force, violence, or unlawfulness be advocated. It is sufficient that
such acts be advocated in general terms. Nor is it necessary that the
language used be reasonably calculated to incite persons to acts of
force, violence, or unlawfulness. It is sufficient if the natural
tendency and probable effect of the utterance be to bring about the
substantive evil which the legislative body seeks to prevent."[24]

Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did
in its earlier decisions in Primicias v. Fugoso[25] and American Bible Society v. City of
Manila;[26] as well as in later ones, Vera v. Arca,[27] Navarro v. Villegas,[28] Imbong v.
Ferrer,[29] Blo Umpar Adiong v. Comelec[30] and, more recently, in Iglesia ni Cristo v.
MTRCB.[31] In setting the standard or test for the "clear and present danger" doctrine, the
Court echoed the words of justice Holmes: "The question in every case is whether the
words used are used in such circumstances and are of such a nature as to create a clear
and present danger that they will bring about the substantive evils that Congress has a
right to prevent. It is a question of proximity and degree."[32]

27
A limitation on the freedom of expression may be justified only by a danger of
such substantive character that the state has a right to prevent. Unlike in the "dangerous
tendency" doctrine, the danger must not only be clear but also present. "Present" refers to
the time element; the danger must not only be probable but very likely to be
inevitable.[33] The evil sought to be avoided must be so substantive as to justify a clamp
over one's mouth or a restraint of a writing instrument. [34]

Justification for a Restriction

Doctrinally, the Court has always ruled in favor of the freedom of expression, and any
restriction is treated an exemption. The power to exercise prior restraint is not to be
presumed; rather the presumption is against its validity. [35] And it is respondent's burden
to overthrow such presumption. Any act that restrains speech should be greeted with
furrowed brows,[36] so it has been said.

To justify a restriction, the promotion of a substantial government interest must be clearly

shown.[37] Thus:

"A government regulation is sufficiently justified if it is within the

constitutional power of the government, if it furthers an important or
substantial government interest; if the governmental interest is
unrelated to the suppression of free expression; and if the incidental
restriction on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest."[38]

Hence, even though the government's purposes are legitimate and substantial, they cannot
be pursued by means that broadly, stifle fundamental personal liberties, when the end can
be more narrowly achieved.[39]

The freedoms of speech and of the press should all the more be upheld when what is
sought to be curtailed is the dissemination of information meant to add meaning to the
equally vital right of suffrage.[40]We cannot support any ruling or order "the effect of
which would be to nullify so vital a constitutional right as free speech." [41] When faced
with borderline situations in which the freedom of a candidate or a party to speak or the
freedom of the electorate to know is invoked against actions allegedly made to assure
clean and free elections, this Court shall lean in favor of freedom. For in the ultimate
analysis, the freedom of the citizen and the State's power to regulate should not be
antagonistic. There can be no free and honest elections if, in the efforts to maintain them,
the freedom to speak and the right to know are unduly curtailed.[42]

True, the government has a stake in protecting the fundamental right to vote by providing
voting places that are safe and accessible. It has the duty to secure the secrecy of the
ballot and to preserve the sanctity and the integrity of the electoral process. However, in

28
order to justify a restriction of the people's freedoms of speech and of the press, the state's
responsibility of ensuring orderly voting must far outweigh them.

These freedoms have additional importance, because exit polls generate important
research data which may be used to study influencing factors and trends in voting
behavior. An absolute prohibition would thus be unreasonably restrictive, because it
effectively prevents the use of exit poll data not only for election-day projections, but
also for long-term research.[43]

Comelec Ban on Exit Polling

In the case at bar, the Comelec justifies its assailed Resolution as having been issued
pursuant to its constitutional mandate to ensure a free, orderly, honest, credible and
peaceful election. While admitting that "the conduct of an exit poll and the broadcast of
the results thereof [are] x x x an exercise of press freedom," it argues that "[p]ress
freedom may be curtailed if the exercise thereof creates a clear and present danger to the
community or it has a dangerous tendency." It then contends that "an exit poll has the
tendency to sow confusion considering the randomness of selecting interviewees, which
further make[s] the exit poll highly unreliable. The probability that the results of such exit
poll may not be in harmony with the official count made by the Comelec x x x is ever
present. In other words, the exit poll has a clear and present danger of destroying the
credibility and integrity of the electoral process."

Such arguments are purely speculative and clearly untenable. First, by the very nature of
a survey, the interviewees or participants are selected at random, so that the results will as
much as possible be representative or reflective of the general sentiment or view of the
community or group polled. Second, the survey result is not meant to replace or be at par
with the official Comelec count. It consists merely of the opinion of the polling group as
to who the electorate in general has probably voted for, based on the limited data
gathered from polled individuals. Finally, not at stake here are the credibility and the
integrity of the elections, which are exercises that are separate and independent from the
exit polls. The holding and the reporting of the results of exit polls cannot undermine
those of the elections, since the former is only part of the latter. If at all, the outcome of
one can only be indicative of the other.

The Comelec's concern with the possible noncommunicative effect of exit polls --
disorder and confusion in the voting centers -- does not justify a total ban on them.
Undoubtedly, the assailed Comelec Resolution is too broad, since its application
is without qualification as to whether the polling is disruptive or not. [44] Concededly, the
Omnibus Election Code prohibits disruptive behavior around the voting centers. [45] There
is no showing, however, that exit polls or the means to interview voters cause chaos in
voting centers. Neither has any evidence been presented proving that the presence of exit
poll reporters near an election precinct tends to create disorder or confuse the voters.

29
Moreover, the prohibition incidentally prevents the collection of exit poll data and their
use for any purpose. The valuable information and ideas that could be derived from them,
based on the voters' answers to the survey questions will forever remain unknown and
unexplored. Unless the ban is restrained, candidates, researchers, social scientists and the
electorate in general would be deprived of studies on the impact of current events and of
election-day and other factors on voters' choices.

In Daily Herald Co. v. Munro,[46] the US Supreme Court held that a statute, one of the
purposes of which was to prevent the broadcasting of early returns, was
unconstitutional because such purpose was impermissible, and the statute was neither
narrowly tailored to advance a state interest nor the least restrictive alternative.
Furthermore, the general interest of the State in insulating voters from outside influences
is insufficient to justify speech regulation. Just as curtailing election-day broadcasts and
newspaper editorials for the reason that they might indirectly affect the voters' choices is
impermissible, so is regulating speech via an exit poll restriction.[47]

The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not
leave open any alternative channel of communication to gather the type of information
obtained through exit polling. On the other hand, there are other valid and reasonable
ways and means to achieve the Comelec end of avoiding or minimizing disorder and
confusion that may be brought about by exit surveys.

For instance, a specific limited area for conducting exit polls may be designated. Only
professional survey groups may be allowed to conduct the same. Pollsters may be kept at
a reasonable distance from the voting center. They may be required to explain to voters
that the latter may refuse to be interviewed, and that the interview is not part of the
official balloting process. The pollsters may further be required to wear distinctive
clothing that would show they are not election officials. [48] Additionally, they may be
required to undertake an information campaign on the nature of the exercise and the
results to be obtained therefrom. These measures, together with a general prohibition of
disruptive behavior, could ensure a clean, safe and orderly election.

For its part, Petitioner ABS-CBN explains its survey methodology as follows: (1)
communities are randomly selected in each province; (2) residences to be polled in such
communities are also chosen at random; (3) only individuals who have already voted, as
shown by the indelible ink on their fingers, are interviewed; (4) the interviewers use no
cameras of any sort; (5) the poll results are released to the public only on the day after the
elections.[49] These precautions, together with the possible measures earlier stated, may be
undertaken to abate the Comelec's fear, without consequently and unjustifiably stilling
the people's voice.

With the foregoing premises, we conclude that the interest of the state in reducing
disruption is outweighed by the drastic abridgment of the constitutionally guaranteed
rights of the media and the electorate. Quite the contrary, instead of disrupting elections,

30
exit polls -- properly conducted and publicized -- can be vital tools for the holding of
honest, orderly, peaceful and credible elections; and for the elimination of election-fixing,
fraud and other electoral ills.

Violation of Ballot Secrecy

The contention of public respondent that exit polls indirectly transgress the sanctity and
the secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access to
the ballots cast by the voters. The ballot system of voting is not at issue here.

The reason behind the principle of ballot secrecy is to avoid vote buying through voter
identification. Thus, voters are prohibited from exhibiting the contents of their official
ballots to other persons, from making copies thereof, or from putting distinguishing
marks thereon so as to be identified. Also proscribed is finding out the contents of the
ballots cast by particular voters or disclosing those of disabled or illiterate voters who
have been assisted. Clearly, what is forbidden is the association of voters with their
respective votes, for the purpose of assuring that the votes have been cast in accordance
with the instructions of a third party. This result cannot, however, be achieved merely
through the voters' verbal and confidential disclosure to a pollster of whom they have
voted for.

In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the
revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may
also choose not to reveal their identities. Indeed, narrowly tailored countermeasures may
be prescribed by the Comelec, so as to minimize or suppress incidental problems in the
conduct of exit polls, without transgressing the fundamental rights of our people.

WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued
by the Court on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-
1419 issued by the Comelec en banc on April 21, 1998 is
hereby NULLIFIED and SET ASIDE. No costs.

SO ORDERED.

31
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 212953 August 5, 2014

JOSE TAPALES VILLAROSA, Petitioner,

vs.
ROMULO DE MESA FESTIN and COMMISSION ON ELECTIONS, Respondents.

RESOLUTION

VELASCO, JR., J.:

Nature of the Case

This treats of the Petition for Certiorari under Rule 64 in relation to Rule 65 of the Rules
of Court assailing the Order1dated June 3, 2014 of public respondent Commission on
Elections (COMELEC) in SPR (AEL) No. 04-2014.

The Facts

Petitioner Jose Tapales Villarosa (Villarosa) and respondent Romulo de Mesa Festin
(Festin) were two of the four rival candidates for the mayoralty post in San Jose,
Occidental Mindoro during the May 13, 2013 National and Local Elections. On May 15,
2013, private respondent was proclaimed the victor, having garnered 20,761 votes,
edging out petitioner who obtained 19,557 votes.

With a difference of only 1,204 votes, petitioner filed a Petition for Protest Ad Cautelam
before the Regional Trial Court (RTC) alleging irregularities attending the conduct of the
elections. Specifically, petitioner brought to the attention of the court the complaints of
various voters who claimed that several ballots were pre-marked or that the ovals
appearing on the face of the ballots correspondingto the name of petitioner were
embossed or waxed to prevent them from being shaded. As a consequence of the alleged
massive electoral fraud and irregularities in the 92 clustered precincts of San Jose,
Occidental Mindoro, private respondent, so petitioner claimed, was illegally proclaimed.

In his answer, private respondent Festin likewise impugned the election results in the
precincts, particularly the number of votes credited to petitioner.

32
With both parties raising as principal issue the accuracy of the vote count, a physical
recount of the ballotswere conducted under the auspices of the RTC, Branch 46 in San
Jose, Occidental Mindoro.

Ruling of the RTC

On November 7, 2013, the RTC rendered a Decision declaring the proclamation of

respondentFestin void, viz:

WHEREFORE, premises considered, this Court hereby DECLARESthe Protestant, JOSE

TAPALES VILLAROSAas the duly elected mayor of San Jose, Occidental Mindoro
during the May 13, 2013 National and Local Election and VOIDSthe Proclamation of
Protestee Romulo De Mesa Festin as elected Mayor by the Board of Election Inspectors
of San Jose, Occidental Mindoro.2

The RTC justified its ruling by deducting 2,050 votes from private respondent that were
allegedly pre-marked or tampered.

Following this development, petitioner filed a Motion for Execution Pending Appeal,
which was granted by the RTC on January 15, 2014. 3 On January 23, 2014, respondent
Festinsmotion for reconsideration was denied.

Meanwhile, on February 3, 2014, private respondent Festin elevated the case to public
respondent COMELEC via a Petition for Certiorari with prayer for injunctive relief.
Petitioner immediately moved for its dismissal on the ground that the petitions
verification is allegedly defective.

Ruling of the COMELEC

Without yet ruling on the motion to dismiss, the COMELEC, acting through its First
Division, on February 13, 2014, issued an Order requiring petitioner to file his answer to
the petition. Through the same Order, the COMELEC issued a Temporary Restraining
Order (TRO) to enjoin the RTC from implementing its Decision during the pendency of
the case. Without waiving the grounds relied on his motion to dismiss, petitioner timely
filed his answer to the petition.

To petitioners surprise, on April 10, 2014, public respondent COMELEC granted private
respondents request for a preliminary injunction, enjoining the RTC Decisions
execution pending appeal. What petitioner considered questionable was that the
injunction was issued by a newly-constituted Special First Division,which was allegedly
formed due to the absence of several COMELEC commissioners who, at that time, were
personally attending to the concerns ofthe overseas absentee voters abroad. Petitioner
points out that the special division was constituted only on April 8, 2014 through

33
Resolution No. 9868and was composed of only two members, Chairman Sixto S.
Brillantes, Jr. and Commissioner Al A. Parreo, with the former presiding.

In response to the issuance of the injunction, petitioner filed an urgent motion praying for
its quashal, which was denied by public respondent COMELEC First Division through
the assailed June 3, 2014 Order. Thus, the instant petition.

The Issues

In ascribing grave abuse of discretion on the part ofpublic respondent COMELEC,

petitioner relied on the following grounds:

1. Public respondent COMELEC (First Division) committed grave abuse of

discretion amounting to lack or excess of jurisdiction when it did not find that
the Special First Division did not have jurisdiction to issue an injunction;

2. Public respondent COMELEC (First Division) committed grave abuse of

discretion amounting to lack or excess of jurisdiction when it denied the urgent
ex-parte motion to quash the writ of preliminary injunction.

Concisely stated, the issue in this case is the legality of the formation of the Special First
Division and the validity of the Orders it issued, specifically the April 10, 2014 Order
granting the issuance of a writ of preliminary injunction.

According to the petitioner, the COMELEC First Division acquired jurisdiction over the
case on February 13, 2014 when it directed him to file an answer relative to the appeal
filed by private respondent Festin, and when it issued a TRO enjoining the execution
pending appeal. Thus, petitioner insists that this precluded the Special First Division from
acquiring jurisdiction over the same case and, consequently, from issuing the writ of
preliminary injunction. As argued by the petitioner, the mere absence of two of the
commissioners in the division is not sufficient to oust it of jurisdiction and confer the
same on a new one.

The Courts Ruling

We dismiss the petition for lack of merit.

Propriety of certiorari in assailing COMELEC rulings

Petitioners recourse, aside from being unsound in substance, is procedurally infirm. The
governing provision is Section 7, Article IX of the 1987 Constitution, which provides:

34
Section 7. Each Commissionshall 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 rulingof each Commission may be brought to the Supreme Court
on certiorari by the aggrieved party within thirty daysfrom receipt of a copy thereof.
(emphasis added)

In the instructive case of Ambil v. Commission on Elections, 4 We have interpreted the

provision to limit the remedy of certiorari against final orders, rulings and decisionsof the
COMELEC en bancrendered in the exercise of its adjudicatory or quasi-judicial
powers.5 Certiorari will not generally lie against an order, ruling,or decision of a
COMELEC division for being premature, taking into account the availability of the plain,
speedy and adequate remedy of a motion for reconsideration. As elucidated in the case:

Rule 65, Section 1, 1997 Rules of Civil Procedure, as amended, requires that there be no
appeal, orany plain, speedy and adequate remedy in the ordinary course of law. A motion
for reconsideration is a plain and adequate remedy provided by law. Failure to abide by
this procedural requirement constitutes a ground for dismissal of the petition.

In like manner, a decision, order or resolution of a division of the Comelec must be

reviewed by the Comelec en banc via a motion for reconsideration before the final
enbanc decision may be brought to the Supreme Court on certiorari. The pre-requisite
filing of a motion for reconsideration is mandatory. 6 (emphasis added)

The above doctrine further gained force when it was reiterated in Our recent ruling in
Cagas v. COMELEC,7 in which We held that a party aggrieved by an interlocutory order
issued by a Division of the COMELEC in an election protest may not directlyassail the
said order in this Court through a special civil action for certiorari. The remedy is to seek
the review of the interlocutory order during the appeal of the decision of the Division in
due course.8

The exception in Kho v. COMELECis inapplicable

As an exception to the cases of Ambiland Cagas, We have ruled in Kho vs.

COMELEC9 that when it does not appear to be specifically provided under the
COMELEC Rules of Procedure that the challenged final order or decision is one that the
COMELEC en banc may sit and consider, the aggrieved party can, by necessity,
directlyresort to the Court as the proper forum for reviewing the ruling. Thus, We have
granted, in the said case, the petition assailing an interlocutory order of a COMELEC
division.

35
The exception, however, does not obtain herein. Noteworthy is that in 1997, when
Khowas resolved, what was thenin force was the COMELEC Rules of Procedure
promulgated on February 15, 1993 (1993 COMELEC Rules). As expressly provided in
Rule 3 of the 1993 COMELEC Rules:

Section 2. The Commission en banc. The Commission shall sit en banc in cases
hereinafter specifically provided, or in preproclamation cases upon a vote of a majority of
the members of a commission, or in all other cases where a division is not authorized to
act, or where, upon a unanimous vote of all the members of a Division, an interlocutory
matter or issue relative anaction or proceeding before it is decided to be referred to the
commission en banc.

xxxx

Section 5. Quorum; Votes required. x x x

x x x x (c) Any motion to reconsider a decision, resolution, order or ruling of a Division

shall be resolved by the Commission en banc except motions on interlocutory orders of
the division which shall be resolved by the division which issued the order.

Patent in the above-cited provisions is that the COMELEC en banc, at that time, did not
have the power to resolve motions for reconsideration with respect to interlocutory orders
issued by a division. This circumstance was a controlling factor in Our ruling in Kho.

On the other hand, applicable in the instant petition is COMELEC Resolution No.
8804,10 promulgated on March 22, 2010. As expressly provided:

Rule 20
Motion for Reconsideration

Section 1.Grounds of Motion for Reconsideration. - A motion for reconsideration may be

filed on the grounds that the evidence is insufficient to justify the decision, order or
ruling; or that the said decision, is contrary to law.

xxxx

Section 5.How motion for Reconsideration Disposed of. - Upon the filing of a motion to
reconsider a decision, resolution, order or ruling of a Division, the ECAD Clerk
concerned shall, within twenty-four (24) hours from the filing thereof, notify the
Presiding Commissioner. The latter shall within two (2) days thereafter certify the case to
the Commission en banc.

36
 xxxx

Section 7.Period to Decide by the Commission En Banc. - The motion for reconsideration
shall be decided within fifteen (15) days from the date the case or matter is deemed
submitted for decision, unless otherwise provided by law. (emphasis added)

Stark is the contrast between the two cited rules. To reiterate, under the 1993 COMELEC
Rules, the COMELEC en bancis strictly prohibited from entertaining motions for
reconsideration of interlocutory orders unless unanimously referred to the en bancby the
members of the division that issued the same, whereas under COMELEC Resolution No.
8804, all motions for reconsideration filed with regard to decisions, resolutions, orders
and rulings of the COMELEC divisionsare automatically referred to the COMELEC en
banc. Thus, in view of COMELEC Resolution No. 8804s applicability in the instant
petition, a motion for reconsideration before the COMELEC en bancis available to
petitioner herein unlike in Kho.

From the foregoing, petitioners procedural lapse becomes manifest. With the availability
of a plain, speedy, and adequate remedy at petitioners disposal, his hasty resort to
certiorari to this Court cannot be justified. On this ground alone, the instant petition
canand should be dismissed outright.

The assailed Order was not issuedin grave abuse of discretion

Even delving into the merits of the case, it cannot be said that the issuance of the assailed
Order was tainted with grave abuse of discretion since public respondents actions
findsufficient constitutional basis under Sec. 3, Art. IX-C of the 1987 Constitution, which
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. (emphasis added)

Evidently, it is pursuant to this mandate that the COMELEC promulgated Resolution No.
780811 on January 16, 2007. Sec. 6, Rule 3 of the said Resolution, in part, provides:

Sec. 6. Substitution of members of a Division.

(a) Temporary vacancy. Whenever a member of a Division is on leave, seriously ill,

temporarily disabled, isabsent, inhibits himself, or is disqualified from sitting in a case,
the junior member of the other Division shall substitute such Commissioner, participating
therein in an acting capacity, in addition to his regular membership in his own Division.

37
 xxxx

Under either of the foregoing substitutions, the Division where the acting or signing
member is assigned shall be designated as "Special First Division" or "Special Second
Division," as the case may be, for purposes of the pertinent casestherein pending."

Thereafter, with the retirement of Commissioner Rene V. Sarmiento and Commissioner

Armando Velasco, the above-quoted rule was amended by Resolution No. 9636 12 on
February 13, 2013 to now read as:

Sec. 6 Substitution of member of a Division.

(a) Temporary vacancy. - Whenever a member of a Division is on Leave, seriously ill,

temporarily disabled, is absent, inhibits himself, or is disqualified from sitting in a case,
the Chairman shall substitute him with another Commissioner,or the Chairman shall sit in
place of said member, and in that event he will preside.1wphi1

xxxx

Under either of the foregoing substitutions, the Division where the acting or signing
member is assigned shall be designated as "Special First Division" or "Special Second
Division" as the case may be, for purposes of the pertinent case therein pending.

Invoking the rule, as amended, the COMELEC then issued Resolution No. 9868 13 on
April 8, 2014. The Resolution sought to address the temporary vacancies in both
Divisionsof the COMELEC in view of the pressing matters concerning overseasabsentee
voting that required the attention and presence abroad of Commissioners Lucenito N.
Tagle and Christian Robert S. Lim of the COMELEC First Division, and of
Commissioner Elias R. Yusoph of the Second Division. 14

Due to the absences of the aforementioned Commissioners, and to constitute a quorum

for the Divisions, Chairman Sixto S. Brillantes, Jr. sat as presiding Chairman for both
Divisions until his colleagues return.15 Thus, pursuant to Section 6, Rule 3 as amended,
Special Divisions were created with the following compositions:16

SPECIAL FIRST DIVISION

Chairman Sixto S. Brillantes, Jr. Presiding

Commissioner Al A. Parreo Member Commissioner

38
 SPECIAL SECOND DIVISION

Chairman Sixto S. Brillantes, Jr. Presiding

Commissioner Maria Gracia Cielo M. Padaca Member Commissioner
Commissioner Luie Tito F. Guia Member Commissioner

With the foregoing discussion, it becomes indisputable that the formation of the Special
Divisions is not only sanctioned by the COMELEC Rules but also by the Constitution no
less.

No fault, let alone grave abuse of discretion, can be ascribed to the COMELEC when the
Special First Division issued the questioned writ of preliminary injunction. Contrary to
petitioners claim, it cannot be said that the First Division and the Special First Division
are two distinct bodies and that there has been consequent transfers of the case between
the two. Strictly speaking, the COMELEC did not create a separate Division but merely
and temporarily filled in the vacancies inboth of its Divisions. The additional term
"special," in this case, merelyindicates that the commissioners sitting therein may only be
doing so in a temporary capacity or via substitution. The COMELEC First Division
exercises jurisdiction over the cases that were assigned to it before the substitution was
made, including SPR (AEL) No. 04-2014. This jurisdiction was not lost by the
subsequent formation of the Special First Division since this only entailed a change in the
Divisions composition of magistrates. Indeed, the case was not reassigned or re-raffled
anew. If anything, it was only petitioners naivety that misled him into interpreting the
designation of the division as a "special" one, meaning it is distinct from the first.
Corollarily, petitioner is also mistaken in claiming that the jurisdiction was eventually
"re-acquired" by the First Division from the Special First Division by ruling on the
motion to quash since the First Division never lost jurisdiction to begin with.

Petitioner raises a fuss anent the temporary or permanent shuffling of members in the
Commission when, in fact, this is not a novel practice. In instances such as this,
exigencies justify the substitution of members and the designation of special divisions to
prevent paralysis in the administration of justice. This is also resorted to in order to
ensure that the speedy disposition of cases is not impeded and that docket systems are
unclogged. Obviously, these advantages far outweigh petitioner's baseless cry of
violation of due process.

WHEREFORE, in view of the foregoing, the instant petition 1s hereby DISMISSED.

SO ORDERED.

39
40
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 112093 October 4, 1994

ANTONIO V.A. TAN, petitioner,

vs.
COMMISSION ON ELECTIONS, RUSTICO T. ILAGAN, Regional Election
Director, Commission on Elections, Region XI, Davao City, and SENFORIANO B.
ALTERADO, respondents.

Leonido C. Delante for petitioner.

Eduardo C. de Vera for Atty. S.B. Alterado.

VITUG, J.:

On 10 May 1992, petitioner, as incumbent city Prosecutor of Davao City, was designated
by the Commission on Elections ("COMELEC") as
Vice-Chairman of the City Board of Canvassers of Davao City for the 11th May 1992
synchronized national and local elections conformably with the provisions of Section
20(a) of Republic Act No. 6646 and Section 221(b) of the Omnibus Election Code (B.P.
Blg. 881).

On the basis of the votes canvassed by the Board of Canvassers, Manuel Garcia was
proclaimed the winning candidate for a congressional seat to represent the Second
District of Davao City in the House of Representatives.

Private respondent Alterado, himself a candidate for the position, filed a number of cases
questioning the validity of the proclamation of Manuel Garcia and accusing the members
of the City Board of Canvassers of "unlawful, erroneous, incomplete and irregular
canvass." Meanwhile, the electoral protest of private respondent Alterado was dismissed
by the House of Representatives Electoral Tribunal ("HRET"). The criminal complaint
for "Falsification of Public Documents and Violation of the Anti-Graft and Corrupt
Practices Act" before the Office of the Ombudsman was likewise dismissed on the

41
ground of lack of criminal intent on the part of therein respondents. Still pending is an
administrative charge, the case now before us, instituted in the COMELEC against the
City Board of Canvassers, including herein petitioner, for "Misconduct, Neglect of Duty,
Gross Incompetence and Acts Inimical to the Service."

Petitioner moved to dismiss the administrative complaint against him for alleged lack of
jurisdiction of the COMELEC thereover, he being under the Executive Department of the
government. The COMELEC denied petitioner's motion to dismiss.

Hence, the instant petition.

Petitioner contends that the COMELEC has committed grave abuse of discretion and
acted without jurisdiction in continuing to take action on the administrative case. He
argues that

1) Petitioner is the City Prosecutor of Davao City. His office belongs

to the executive branch of the government, more particularly to the
Department of Justice. As such, he is under the administrative
jurisdiction of the said department and not of respondent COMELEC.

2) The Civil Service Law provides that department heads "shall have
jurisdiction to investigate and decide matters involving disciplinary
action against officers under their jurisdiction" (Section 47[b], P.D.
807).

3) Section 2, Article IX of the 1987 Constitution which authorizes

respondent COMELEC to deputize public officers belonging to the
executive department is for the purpose of insuring free, orderly and
honest elections. It does not include and comprehend administrative
disciplinary jurisdiction over officials belonging to the executive
branch of government. That jurisdiction over deputized executive
officers cannot be deemed to include such powers as would allow
encroachment into the domain of the executive branch under guise of
administering laws relative to elections.

4) Section 38 of P.D. 807 cited by respondents COMELEC and

Ilagan as basis for their authority to investigate petitioner (Annex G)
offers no help to said respondents. The said provision merely lays
down the procedure for administrative cases against non-presidential
appointees. Petitioner here, the city prosecutor for Davao City is a
presidential appointee. 1

We find ourselves being unable to sustain the petition.

42
The COMELEC's authority under Section 2(6-8), Article IX, of the Constitution is
virtually all-encompassing when it comes to election matters. In respect particularly to
sanctions against election offenses, we quote:

Sec. 2. The Commission on Elections shall exercise the following

powers and functions:

xxx xxx xxx

(6) File, upon a verified complaint, or on its own initiative, petitions

in court for inclusion or exclusion of voters; investigate and, where
appropriate, prosecute cases of violations of election laws, including
acts or omission constituting election frauds, offenses, and
malpractices.

xxx xxx xxx

(8) Recommend to the President the removal of any officer or

employee it has deputized or the imposition of any other disciplinary
action, for violation or disregard of, or disobedience to its directive,
order, or decision.

Additionally, Section 52, Article VII, of the Omnibus Election Code, provides:

Sec. 52. Powers and functions of the Commission on Elections. In

addition to the powers and functions conferred upon it by the
Constitution, the Commission shall have exclusive charge of the
enforcement and administration of all laws relative to the conduct of
elections for the purpose of insuring free, orderly and honest
elections, and shall:

a. Exercise direct and immediate supervision and control over

national and local officials or employees, including members of any
national or local law enforcement agency and instrumentality of the
government required by law to perform duties relative to the conduct
of elections. In addition, it may authorize CMP Cadets eighteen years
of age and above to act as its deputies for the purpose of enforcing its
orders.

The Commission may relieve any officer or employee referred to in

the preceding paragraph from the performance of his duties relating
to electoral processes who violates the election law or fails to comply
with its instructions, orders, decisions or rulings, and appoint his

43
 substitute. Upon recommendation of the Commission, the
corresponding proper authority shall suspend or remove from office
any or all of such officers or employees who may, after due process,
be found guilty of such violation or failure.

It should be stressed that the administrative case against petitioner, taken cognizance of
by, and still pending with, the COMELEC, is in relation to the performance of his duties
as an election canvasser and not as a city prosecutor. The COMELEC's mandate includes
its authority to exercise direct and immediate supervision and control over national and
local officials or employees, including members of any national or local law enforcement
agency and instrumentality of the government, required by law to perform duties relative
to the conduct of elections. In order to help ensure that such duly deputized officials and
employees of government carry out their respective assigned tasks, the law has also
provided than upon the COMELEC's recommendation, the corresponding proper
authority (the Secretary of the Department of Justice in the case at bar) shall take
appropriate action, either to suspend or remove from office the officer or employee who
may, after due process, be found guilty of violation of election laws or failure to comply
with instructions, orders, decision or rulings of the COMELEC.

Unavoidably, the COMELEC, prior to making its recommendation, must first satisfy
itself that there indeed has been an infraction of the law, or of its directives issued
conformably therewith, by the person administratively charged. It also stands to reason
that it is the COMELEC, being in the best position to assess how its deputized officials
and employees perform or have performed in their duties, that should conduct the
administrative inquiry. To say that the COMELEC is without jurisdiction to look into
charges of election offenses committed by officials and employees of government outside
the regular employ of the COMELEC would be to unduly deny to it the proper and sound
exercise of such recommendatory power and, perhaps more than that, even a possible
denial of due process to the official or employee concerned.

Observe, nevertheless, that the COMELEC merely may issue a recommendation for
disciplinary action but that it is the executive department to which the charged official or
employee belongs which has the ultimate authority to impose the disciplinary penalty.
The law then does not detract from, but is congruent with, the general administrative
authority of the department of government concerned over its own personnel.

Petitioner's assertion that private respondent Alterado has resorted to forum-shopping is

unacceptable. The investigation then being conducted by the Ombudsman on the criminal
case for falsification and violation of the Anti-Graft and Corrupt Practices Act, on the one
hand, and the inquiry into the administrative charges by the COMELEC, on the other
hand, are entirely independent proceedings. Neither would the results in one conclude the
other. Thus, an absolution from a criminal charge is not a bar to an administrative
prosecution (Office of the Court Administrator vs. Enriquez, 218
SCRA 1), or vice versa. So, also, the dismissal by the COMELEC of SPC Case No. 92-

44
232 on the ground that the case constituted an electoral protest within the jurisdiction of
the HRET and not of the COMELEC (affirmed by this Court in G.R. No. 106452) does
not necessarily foreclosure the matter of possible liability, if warranted, of those who
might have improperly acted in the canvass of votes.

There are other issues, mainly factual, that are raised and averred to show petitioner's
innocence from the administrative charges. Petitioner's allegations may well be true but
this petition at bench may not preempt the determination of those factual matters yet to be
passed upon in the pending administrative proceedings.

WHEREFORE, the instant petition is DISMISSED. No costs.

SO ORDERED.

45
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 179830 December 3, 2009

LINTANG BEDOL, Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

DECISION

LEONARDO-DE CASTRO, J.:

Challenged in this petition for certiorari are the twin Resolutions issued by the respondent
Commission on Elections (COMELEC) En Banc in the case entitled "In the Matter of the
Charge of Contempt of the Commission Against Election Supervisor Lintang Bedol."
The first Resolution1 dated August 7, 2007, held petitioner guilty of contempt of the
COMELEC and meted out to him the penalty of six (6) months imprisonment and a fine
of P1,000.00. The second Resolution2 dated August 31, 2007, denied petitioners motion
for reconsideration.

The facts as stated by the COMELEC follow:

On May 14, 2007, the National and Local elections were held under the auspices of this
Commission.

As Chair of the Provincial Board of Canvassers (PBOC) for the province of

Maguindanao, the respondent [petitioner] discharged his official functions and was able
to ensure the PBOCs performance of its ministerial duty to canvass the Certificates of
Canvass coming from the twenty two (22) city and municipalities in the province.

At that time, respondent [petitioner] also was charged with the burdensome and
gargantuan duty of being the concurrent Provincial Elections Supervisor for the Province
of Shariff Kabunsuan a neighboring province of Maguindanao.

Respondent [petitioner] Bedol failed to attend the scheduled canvassing of the Provincial
Certificates of Canvass (PCOC) of Maguindanao of which he is the Provincial Election
Supervisor which was slated on May 22, 2007.

46
On May 25, 2007, respondent appeared before the Commission, en banc sitting as the
National Board of Canvassers (NBOC) for the election of senators to submit the
provincial certificate of canvass for Maguindanao, pursuant to his functions as Provincial
Elections Supervisor and chair of the PBOC for Maguindanao. Due to certain
observations on the provincial certificates of canvass by certain parties, canvassing of
the certificate was held in abeyance and respondent was queried on the alleged fraud
which attended the conduct of elections in his area.

He was already informed of the resetting of the canvassing for May 30, 2007, but failed
to appear despite prior knowledge.

On June 4, 2007, Celia B. Romero, Director II, ERSD & Concurrent Chief of the Records
and Statistics Division of the COMELEC issued a certification that as of even date, the
canvassing documents for all municipalities of the province of Maguindanao in
connection with the May 14, 2007 elections were not transmitted by the Provincial
Election Supervisor of said province nor the respective Board of Canvassers.

The Commission and not just the NBOC, in the exercise of its investigatory powers to
determine existing controversies created the Task Force Maguindanao, headed by
Commissioner Nicodemo Ferrer, which was tasked to conduct a fact-finding
investigation on the conduct of elections and certificates of canvass from the city and
municipalities in Maguindanao.

Respondent [petitioner] appeared before the Task Force during its June 11, 2007 fact
finding activity and responded to the queries from the chair. It was during this hearing
that respondent [petitioner] Bedol explained that, while in his custody and possession, the
election paraphernalia were stolen sometime on May 29, 2007, or some fifteen (15) days
after the elections. This was the first time such an excuse was given by the respondent
[petitioner] and no written report was ever filed with the Commission regarding the
alleged loss.1avvphi1

Respondent [petitioner] Bedol was duly informed to be present in the next scheduled
investigative proceedings set for June 14, 2007 as the Task Force wanted to delve deeper
into the alleged loss by propounding additional questions to Atty. Bedol during the next
scheduled proceedings, such as why he still had in his possession said documents which
should have already been turned over to the Commission, why he did not report to the
COMELEC or to the police authorities the purported theft, and other pertinent questions.
However, despite actual notice in open session, Atty. Bedol failed to appear, giving the
impression that respondent [petitioner] Bedol does not give importance to this whole
exercise and ignores the negative impact his attitude has on this Commission.

Also respondent [petitioner] failed and refused to submit a written explanation of his
absences which he undertook to submit on June 13, 2007, but was only received by this
Commission belatedly on July 03, 2007.

47
On June 26, 2007, [petitioner] came out on national newspapers, in an exclusive
interview with the Inquirer and GMA-7, with a gleaming 45 caliber pistol strapped to
his side, and in clear defiance of the Commission posted the challenge by saying that
those that are saying that there was cheating in Maguindanao, file a case against me
tomorrow, the next day. They should file a case now and I will answer their
accusations.(Words in brackets ours)

On June 27, 2007, the COMELEC through Task Force Maguindanao head,
Commissioner Nicodemo T. Ferrer, issued a Contempt Charge and Show Cause
Order3 against petitioner citing various violations of the COMELEC Rules of Procedure,
viz:

You are hereby formally charged of contempt of this Commission for having committed
during the period between May 14, 2007, and June 26, 2007, acts in violation of specific
paragraphs of Section 2, Rule 29 of the COMELEC Rules of Procedure, as follows:

1. (a) Your (PES Bedols) failure to attend the scheduled canvassing of the
Provincial Certificates of Canvass (PCOC) of Maguindanao of which he (sic) is
(sic) the Provincial Election Supervisor on May 22, 2007; (b) your failure to
attend the reset schedule of the canvassing on May 30, 2007, despite
knowledge thereof when you attended the previously scheduled but again reset
canvassing of said PCOCs on May 25, 2007; (c) your failure to attend the
continuation of hearing of the Task Force Maguindanao on June 14, 2007,
despite notice to him in open session in the hearing held on June 11, 2007, and
personal service to you of a subpoena which you duly signed on the same date;
and your failure/refusal to submit your written explanation of your said
absences which you undertook to submit on June 13, 2007 all of these
failures on your part are violations of paragraphs (b) and (f) of Section 2, Rule
29 of COMELEC Rules of Procedure.

2. Your unlawful assumption of custody in your office in Maguinadanao of the

municipal certificates of canvass (MCOC) and other accountable election
documents of all the municipalities of Maguinadanao used in the last elections
of 2007, but which should have been delivered to the Commission on Elections
in its main office in Intramuros, Manila, and your admission that said
accountable documents were lost from your said custody these constitute
violations of paragraphs (a), (c) and (d), section 2, Rule 29 of said Rules.

3. Your pronouncements in the media flaunting [disrespect to] the authority of

the COMELEC over you, challenging the institution to file a case against you
in court as it is only in court that you are ready to face your accuser are
violations of paragraphs (a) and (d), Section 2, Rule 29 of said Rules.

48
 4. Your regaling the media (interviews in national television channels,
newspapers and radios) with your boast of possession of an armory of long
firearms and side arms, displaying in public for all to see in your front-page
colored portrait in a national broadsheet and during a television interview a
shiny pistol tucked in a holster at your waist in a combative mode (sic)
these are clear violations of paragraphs (a) and (d), Section 2, Rule 29 of said
Rules. (Words in brackets ours)

Through the foregoing June 27, 2007 Order, petitioner was directed to appear before the
COMELEC En Banc on July 3, 2007 at 10:00 oclock in the morning to personally
explain why he should not be held in contempt for the above-mentioned offenses.

On July 2, 2007, petitioner was arrested by members of the Philippine National Police on
the basis of an Order of Arrest4 issued on June 29, 2007 by the COMELEC after
petitioner repeatedly failed to appear during the fact-finding proceedings before Task
Force Maguindanao.

During the July 3, 2007 hearing, petitioner questioned the COMELECs legal basis for
issuing the warrant of arrest and its assumption of jurisdiction over the contempt charges.
Upon petitioners motion, he was granted a period of ten (10) days within which to file
the necessary pleading adducing his arguments and supporting authorities. The
continuation of the hearing was set on July 17, 2007.

On July 17, 2007, which was beyond the ten-day period he requested, petitioner
submitted an Explanation Ad Cautelam with Urgent Manifestation, containing the
following averments:

1. Respondent [petitioner] urgently manifests that he is making a special

appearance as he assails the jurisdiction of the Honorable Commission and its
capacity to prosecute the present case in an impartial and fair manner.

2. Respondent [petitioner] questions the issuance of a warrant of arrest against

him. He can not be validly arrested or re-arrested as a witness who is being
compelled to testify in a hearing before the Honorable Commission.

3. Respondent [petitioner] has not committed any contemptuous acts against

the Commission. He has not committed those acts charged against him by the
Commission motu proprio. (Words in brackets ours.)

During the hearing on July 17, 2007, petitioner reiterated his objection to the jurisdiction
of the COMELEC over the contempt charges due to the absence of a complaint lodged
with the COMELEC by any private party. Petitioners objection was treated as a motion
to dismiss for lack of jurisdiction, which was denied forthwith by the COMELEC.

49
Petitioner was then required to present evidence which he refused to do. Various exhibits
were then marked and presented to the COMELEC. However, the latter allowed
petitioner to file a Memorandum within a period of ten (10) days and gave him the
opportunity to attach thereto his documentary and other evidence.

On July 31, 2007, petitioner again belatedly filed his Memorandum5 maintaining his
objection to the jurisdiction of the COMELEC to initiate the contempt proceedings on
ground that the COMELEC, sitting en banc as the National Board of Canvassers for the
election of senators, was performing its administrative and not its quasi-judicial
functions. Petitioner argued that the COMELEC, in that capacity, could not punish him
for contempt.

On August 7, 2007, the COMELEC En Banc rendered the first assailed Resolution, the
dispositive part of which reads:

WHEREFORE, considering all the foregoing, respondent Atty. Lintang Bedol is hereby
found guilty of Contempt of the Commission for the following acts and omissions:

1. (a) The failure to attend the scheduled canvassing of the Provincial

Certificates of Canvass (PCOC) of Maguindanao of which he is the Provincial
Election Supervisor on May 22, 2007 (b) failure to attend the reset schedule of
the canvassing on May 30, 2007, despite knowledge thereof when Respondent
Bedol attended the previously scheduled but again reset canvassing on May 25,
2007 (c) failure to attend the continuation of hearing of the Task Force
Maguindanao on June 14, 2007, despite notice to Respondent in open session in
the hearing held on June 11, 2007, and personal service to him of the subpoena
which he duly signed on the same date; the failure/refusal to submit written
explanation of respondents absences which he undertook to submit on June 13,
2007 --- all of these failures are violations of paragraphs (b) and (f) of Section
2, Rule 29 of COMELEC Rules of Procedure.

2. The unlawful assumption of custody in the Respondents office in

Maguindanao of the Municipal Certificates of Canvass (MCOC) and other
accountable election documents of all the municipalities of Maguindanao used
in the last elections of 2007, but which should have been delivered to the
Commission on Elections in its main office in Intramuros, Manila, and
Respondents plain admission that said accountable documents were lost from
his said custody --- these constitute violations of paragraphs (a), (c) and (d),
Section 2, Rule 29 of said Rules.lavvphil

3. The respondents pronouncements in media flaunting disrespect to the

authority of the COMELEC over him, challenging the institution to file a case
against him in court as it is supposedly only in court that Respondent Bedol

50
 was ready to face his accuser are violations of paragraphs (a) and (d), Section 2,
Rule 29 of said Rules.

4. Regaling the public through the media (interviews in national television

channels, newspapers and radios) with boast of possession of an armory of long
firearms and side arms, displaying in public, for all to see in his front-page
colored portrait in a national broadsheet and during a television interview, a
shiny pistol tucked in a holster at your waist in a combative mode (sic) ---
these are clear violations of paragraphs (a) and (d), Section 2, Rule 29 of said
Rules.

All the foregoing constitute an exhibition of contumacious acts showing disrespect for the
institution, of which respondent is even a ranking official, which is clearly contemptuous
of this Commission, for which Respondent Lintang Bedol is hereby sentenced to suffer
the penalty of imprisonment of six (6) months and to pay a fine of One Thousand Pesos
(P1,000.00).

The Legal Department of the Comelec is hereby directed to investigate and determine
whether or not any election offense or crime under the Revised Penal Code has been
committed by respondent Lintang Bedol and to initiate the filing of the necessary
charge/s therefor.

SO ORDERED.

Aggrieved, petitioner filed a motion for reconsideration which was denied by the
COMELEC in the other assailed Resolution dated August 31, 2007.

Hence, petitioner filed before the Court the instant petition for certiorari raising the
following issues:

WHETHER OR NOT THE COMMISSION ON ELECTIONS HAS JURISDICTION TO

INITIATE OR PROSECUTE THE CONTEMPT PROCEEDINGS AGAINST THE
PETITIONER.

II

WHETHER OR NOT THE COMMISSSION HAS ALREADY PREJUDGED THE

CASE AGAINST THE PETITIONER IN VIOLATION OF HIS DUE PROCESS
RIGHTS

51
 III

WHETHER OR NOT THE FINDINGS OF THE COMMISSION ON ELECTIONS,

ASSUMING IT HAS JURISDICTION TO PUNISH FOR CONTEMPT, ARE
SUPPORTED BY SUBSTANTIAL, CREDIBLE AND COMPETENT EVIDENCE.

We dismiss the petition.

The main thrust of petitioners argument is that the COMELEC exceeded its jurisdiction
in initiating the contempt proceedings when it was performing its administrative and not
its quasi-judicial functions as the National Board of Canvassers for the election of
senators. According to petitioner, the COMELEC may only punish contemptuous acts
while exercising its quasi-judicial functions.

The COMELEC possesses the power to conduct investigations as an adjunct to its

constitutional duty to enforce and administer all election laws, by virtue of the explicit
provisions of paragraph 6, Section 2, Article IX of the 1987 Constitution, which reads:

Article IX-C, Section 2. xxx

(6) xxx; investigate and, where appropriate, prosecute cases of violations of election
laws, including acts or omissions constituting election frauds, offenses, and malpractices.

The above-quoted provision should be construed broadly to give effect to the

COMELECs constitutional mandate as enunciated in Loong v. Commission on
Elections,6 which held:

xxx. Section 2(1) of Article IX(C) of the Constitution gives the COMELEC the broad
power "to enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum and recall." Undoubtedly, the text and intent of
this provision is to give COMELEC all the necessary and incidental powers for it to
achieve the objective of holding free, orderly, honest, peaceful, and credible elections.
Congruent to this intent, this Court has not been niggardly in defining the parameters of
powers of COMELEC in the conduct of our elections.

The powers and functions of the COMELEC, conferred upon it by the 1987 Constitution
and the Omnibus Election Code, may be classified into administrative, quasi-legislative,
and quasi-judicial. The quasi-judicial power of the COMELEC embraces the power to
resolve controversies arising from the enforcement of election laws, and to be the sole
judge of all pre-proclamation controversies; and of all contests relating to the elections,
returns, and qualifications. Its quasi-legislative power refers to the issuance of rules and
regulations to implement the election laws and to exercise such legislative functions as
may expressly be delegated to it by Congress. Its administrative function refers to the

52
enforcement and administration of election laws. In the exercise of such power, the
Constitution (Section 6, Article IX-A) and the Omnibus Election Code (Section 52 [c])
authorize the COMELEC to issue rules and regulations to implement the provisions of
the 1987 Constitution and the Omnibus Election Code. 7

The quasi-judicial or administrative adjudicatory power is the power to hear and

determine questions of fact to which the legislative policy is to apply, and to decide in
accordance with the standards laid down by the law itself in enforcing and administering
the same law. The Court, in Dole Philippines Inc. v. Esteva, 8 described quasi-judicial
power in the following manner, viz:

Quasi-judicial or administrative adjudicatory power on the other hand is the power of the
administrative agency to adjudicate the rights of persons before it. It is the power to hear
and determine questions of fact to which the legislative policy is to apply and to decide in
accordance with the standards laid down by the law itself in enforcing and administering
the same law. The administrative body exercises its quasi-judicial power when it
performs in a judicial manner an act which is essentially of an executive or administrative
nature, where the power to act in such manner is incidental to or reasonably necessary for
the performance of the executive or administrative duty entrusted to it. In carrying out
their quasi-judicial functions the administrative officers or bodies are required to
investigate facts or ascertain the existence of facts, hold hearings, weigh evidence, and
draw conclusions from them as basis for their official action and exercise of discretion in
a judicial nature. Since rights of specific persons are affected, it is elementary that in the
proper exercise of quasi-judicial power due process must be observed in the conduct of
the proceedings. [Emphasis ours.]

The Creation of Task Force Maguindanao was impelled by the allegations of fraud and
irregularities attending the conduct of elections in the province of Maguindanao and the
non-transmittal of the canvassing documents for all municipalities of said province.

Task Force Maguindanaos fact-finding investigation to probe into the veracity of the
alleged fraud that marred the elections in said province; and consequently, to determine
whether the certificates of canvass were genuine or spurious, and whether an election
offense had possibly been committed could by no means be classified as a purely
ministerial or administrative function.

The COMELEC, through the Task Force Maguindanao, was exercising its quasi-judicial
power in pursuit of the truth behind the allegations of massive fraud during the elections
in Maguindanao. To achieve its objective, the Task Force conducted hearings and
required the attendance of the parties concerned and their counsels to give them the
opportunity to argue and support their respective positions.

53
The effectiveness of the quasijudicial power vested by law on a government institution
hinges on its authority to compel attendance of the parties and/or their witnesses at the
hearings or proceedings. As enunciated in Arnault v. Nazareno 9

Experience has shown that mere requests for such information are often unavailing, and
also that information which is volunteered is not always accurate or complete; so some
means of compulsion is essential to obtain what is needed.

In the same vein, to withhold from the COMELEC the power to punish individuals who
refuse to appear during a fact-finding investigation, despite a previous notice and order to
attend, would render nugatory the COMELECs investigative power, which is an
essential incident to its constitutional mandate to secure the conduct of honest and
credible elections. In this case, the purpose of the investigation was however derailed
when petitioner obstinately refused to appear during said hearings and to answer
questions regarding the various election documents which, he claimed, were stolen while
they were in his possession and custody. Undoubtedly, the COMELEC could punish
petitioner for such contumacious refusal to attend the Task Force hearings.

Even assuming arguendo that the COMELEC was acting as a board of canvassers at that
time it required petitioner to appear before it, the Court had the occasion to rule that the
powers of the board of canvassers are not purely ministerial. The board exercises quasi-
judicial functions, such as the function and duty to determine whether the papers
transmitted to them are genuine election returns signed by the proper officers. 10 When the
results of the elections in the province of Maguindanao were being canvassed, counsels
for various candidates posited numerous questions on the certificates of canvass brought
before the COMELEC. The COMELEC asked petitioner to appear before it in order to
shed light on the issue of whether the election documents coming from Maguindanao
were spurious or not. When petitioner unjustifiably refused to appear, COMELEC
undeniably acted within the bounds of its jurisdiction when it issued the assailed
resolutions.

In Santiago, Jr. v. Bautista,11 the Court held:

xxx. The exercise of judicial functions may involve the performance of legislative or
administrative duties, and the performance of and administrative or ministerial duties,
may, in a measure, involve the exercise of judicial functions. It may be said generally that
the exercise of judicial functions is to determine what the law is, and what the legal rights
of parties are, with respect to a matter in controversy; and whenever an officer is clothed
with that authority, and undertakes to determine those questions, he acts judicially.

On the procedure adopted by the COMELEC in proceeding with the indirect contempt
charges against petitioner, Section 52 (e), Article VII of the Omnibus Election Code
pertinently provides:

54
Section 52. Powers and functions of the Commission on Elections.

xxx

(e) Punish contempts provided for in the Rules of Court in the same procedure and with
the same penalties provided therin. Any violation of any final and executory decision,
order or ruling of the Commission shall constitute contempt thereof. [Emphasis ours.]

The aforecited provision of law is implemented by Rule 29 of COMELECs Rules of

Procedure, Section 2 of which states:

Rule 29 Contempt

Sec. 1. xxx

Sec. 2. Indirect Contempt. After charge in writing has been filed with the Commission
or Division, as the case may be, and an opportunity given to the respondent to be heard
by himself or counsel, a person guilty of the following acts may be punished for indirect
contempt:

(a) Misbehavior of the responsible officer of the Commission in the performance of his
official duties or in his official transactions;

(b) Disobedience of or resistance to a lawful writ, process, order, judgment or command

of the Commission or any of its Divisions, or injunction or restraining order granted by it;

(c) Any abuse of or any inlawful interference with the process or proceedings of the
Commission or any of its Divisions not constituting direct contempt under Section 1 of
this Rules;

(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade
the administration of justice by the Commission or any of its Divisions;

(e) Assuming to be an attorney and acting as such without authority; and

(f) Failure to obey a subpoena duly served.

SEC. 3 Penalty for Indirect Contempt. If adjudged guilty, the accused may be punished
by a fine not exceeding one thousand (P1,000.00) pesos or imprisonment for not more
than six (6) months, or both, at the discretion of the Commission or Division.

55
The language of the Omnibus Election Code and the COMELEC Rules of Procedure is
broad enough to allow the initiation of indirect contempt proceedings by the COMELEC
motu proprio. Furthermore, the above-quoted provision of Section 52(e), Article VII of
the Omnibus Election Code explicitly adopts the procedure and penalties provided by the
Rules of Court. Under Section 4, Rule 71, said proceedings may be initiated motu proprio
by the COMELEC, viz:

SEC. 4. How proceedings commenced. Proceedings for indirect contempt may be

initiated motu proprio by the court against which the contempt was committed by an
order or any other formal charge requiring the respondent to show cause why he should
not be punished for contempt.

In all other cases, charges for indirect contempt shall be commenced by a verified
petition with supporting particulars and certified true copies of documents or papers
involved therein, and upon full compliance with the requirements for filing initiatory
pleadings for civil actions in the court concerned. If the contempt charges arose out of or
are related to a principal action pending in the court, the petition for contempt shall allege
that fact but said petition shall be docketed, heard and decided separately, unless the court
in its discretion orders the consolidation of the contempt charge and the principal action
for joint hearing and decision.

Hence, the COMELEC properly assumed jurisdiction over the indirect contempt
proceedings which were initiated by its Task Force Maguindanao, through a Contempt
Charge and Show Cause Order, notwithstanding the absence of any complaint filed by a
private party.

We turn now to petitioners claim that the COMELEC pre-judged the case against him,
and that its findings were not supported by evidence. His claim deserves scant
consideration.

The fact that the indirect contempt charges against petitioner were initiated motu proprio
by the COMELEC did not by itself prove that it had already prejudged the case against
him. As borne out by the records, the COMELEC gave petitioner several opportunities to
explain his side and to present evidence to defend himself. All of petitioners belatedly
filed pleadings were admitted and taken into consideration before the COMELEC issued
the assailed Resolution finding petitioner guilty of indirect contempt.

The COMELEC complied with the aforementioned Section 4, Rule 71 of the Rules of
Court and with the requirements set by Rule 29 of the COMELEC Rules of Procedure,
when it issued the Contempt Charge and Show Cause Order against petitioner directing
him to appear before it and explain why he should not be held in contempt.

56
Petitioner claims that the challenged Resolution finding him guilty of indirect contempt
was based merely on hearsay, surmises, speculations and conjectures, and not on
competent and substantial evidence. He contends that there is no convincing evidence
that he deliberately refused to heed the summonses of the COMELEC or that he was
sufficiently notified of the investigative hearings. He further argues that the loss of the
election documents should not even be automatically ascribed to him.

We are not persuaded.

Petitioner was found guilty of contempt on four (4) grounds. First, he repeatedly failed to
attend, despite notice of the scheduled12 canvassing of the Provincial Certificates of
Canvass, the hearing of the Task Force Maguindanao; and refused to submit his
explanation for such absences, which he had undertaken to submit, in violation of
paragraphs (b) and (f) of Section 2, Rule 29 of the COMELEC Rules of Procedure.

Petitioner was duly notified of the scheduled hearings. It was his official responsibility to
be present during the scheduled hearing to shed light on the allegedly stolen election
documents but he failed to do so without offering any valid justification for his non-
appearance.

Second, he unlawfully assumed custody of accountable election documents, which were

lost while in his possession, and consequently failed to deliver the same, in violation of
paragraphs (a), (c) and (d) Section 2, Rule 29 of same Rules.

Petitioner admitted that the subject certificate of canvass and other election documents
were lost while in his custody. Petitioner himself admitted during the hearing held on
June 11, 2007 that the documents were stolen sometime on May 29, 2007. Apart from the
said loss of the vital election documents, his liability stemmed from the fact that he
illegally retained custody and possession of said documents more than two weeks after
the elections. The COMELEC viewed such act as a contemptuous interference with its
normal functions.

Third and fourth, he publicly displayed disrespect for the authority of the COMELEC
through the media (interviews on national television channels, and in newspapers and
radios) by flaunting an armory of long firearms and side arms in public, and posing for
the front page of a national broadsheet, with a shiny pistol tucked in a holster, in violation
of paragraphs (a) and (d), Section 2, Rule 29 of same Rules.

Petitioner questions the probative value of the newspaper clippings published in the
Philippine Daily Inquirer on June 26, 2007 which showed a photo of him with a firearm
tucked to his side and his supposed exclusive interview. He claims that said newspaper
clippings are mere hearsay, which are of no evidentiary value.

57
True, there were instances when the Court rejected newspaper articles as hearsay, when
such articles are offered to prove their contents without any other competent and credible
evidence to corroborate them. However, in Estrada v. Desierto, et al., 13 the Court held
that not all hearsay evidence is inadmissible and how over time, exceptions to the hearsay
rule have emerged. Hearsay evidence may be admitted by the courts on grounds of
"relevance, trustworthiness and necessity."14 When certain facts are within judicial notice
of the Court, newspaper accounts "only buttressed these facts as facts." 15

Another exception to the hearsay rule is the doctrine of independently relevant

statements, where only the fact that such statements were made is relevant, and the truth
or falsity thereof is immaterial. The hearsay rule does not apply; hence, the statements are
admissible as evidence. Evidence as to the making of such statement is not secondary but
primary, for the statement itself may constitute a fact in issue or be circumstantially
relevant as to the existence of such a fact.16

Here, the newspaper clippings were introduced to prove that petitioner deliberately defied
or challenged the authority of the COMELEC. As ratiocinated by the COMELEC in the
challenged Resolution of August 7, 2007, it was not the mere content of the articles that
was in issue, but petitioners conduct when he allowed himself to be interviewed in the
manner and circumstances, adverted to in the COMELEC Resolution, on a pending
controversy which was still brewing in the COMELEC. While petitioner claimed that he
was misquoted, he denied neither the said interview nor his picture splashed on the
newspaper with a firearm holstered at his side but simply relied on his objection to the
hearsay nature of the newspaper clippings. It should be stressed that petitioner was no
ordinary witness or respondent. He was under the administrative supervision of the
COMELEC17 and it was incumbent upon him to demonstrate to the COMELEC that he
had faithfully discharged his duties as dictated by law. His evasiveness and refusal to
present his evidence as well as his reliance on technicalities to justify such refusal in the
face of the allegations of fraud or anomalies and newspaper publication mentioned to the
Contempt Charge and Show Cause Order amounted to an implied admission of the
charges leveled against him.

All told, petitioner brought this predicament upon himself when he opted to dispense with
the presentation of his evidence during the scheduled hearings and to explain his non-
appearance at the hearings of Task Force Maguindanao and the loss of the certificates of
canvass and other election documents.

WHEREFORE, the petition is hereby DISMISSED and the prayer for a Temporary
Restraining Order and/or a Writ of Preliminary Injunction is hereby DENIED. No costs.

SO ORDERED.

58
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-13827 September 28, 1962

BENJAMIN MASANGCAY, petitioner,

vs.
THE COMMISSION ON ELECTIONS, respondent.

Godofredo A. Ramos and Ruby Salazar-Alberto for petitioner.

Office of the Solicitor General and Dominador D. Dayot for respondent.

BAUTISTA ANGELO, J.:

Benjamin Masangcay, with several others, was on October 14, 1957 charged before the
Commission on Election with contempt for having opened three boxes bearing serial
numbers l-8071, l-8072 and l-8073 containing official and sample ballots for the
municipalities of the province of Aklan, in violation of the instructions of said
Commission embodied in its resolution promulgated September 2, 1957, and its
unnumbered resolution date March 5, 1957, inasmuch as he opened said boxes not the
presence of the division superintendent of schools of Aklan, the provincial auditor, and
the authorized representatives of the Nacionalista Party, the Liberal Party and the
Citizens' Party, as required in the aforesaid resolutions, which are punishable under
Section 5 of the Revised Election Code and Rule 64 of the Rules of Court. Masangcay
was then the provincial treasurer of Aklan designated by the Commission in its resolution
in Case CE-No. 270, part II 2 (b) thereof, to take charge of the receipt and custody of the
official ballots, election forms and supplies, as well as of their distribution, among the
different municipalities of the province.

In compliance with the summons issued to Masangcay and his co-respondents to appear
and show cause why they should not be punished for contempt on the basis of the
aforementioned charge, they all appeared before the Commission on October 21, 1957
and entered a plea of not guilty. Thereupon, evidence was presented by both the
prosecution and the defense, and on December 16, 1957 the Commission rendered its
decision finding Masangcay and his co-respondent Molo guilty as charged and
sentencing each of them to suffer three months imprisonment and pay a fine of P500,

59
with subsidiary imprisonment of two months in case of insolvency, to be served in the
provincial jail of Aklan. The other respondents were exonerated for lack of evidence.

Masangcay brought the present petition for review raising as main issue the
constitutionality of Section 5 of the Revised Election Code which grants the Commission
on Elections as well as its members the power to punish acts of contempt against said
body under the same procedure and with the same penalties provided for in Rule 64 of
the Rules of Court in that the portion of said section which grants to the Commission and
members the power to punish for contempt is unconstitutional for it infringes the
principle underlying the separation of powers that exists among the three departments of
our constitutional form of government. In other words, it is contended that, even if
petitioner can be held guilty of the act of contempt charged, the decision is null and void
for lack of valid power on the part of the Commission to impose such disciplinary penalty
under the principle of separation of powers. There is merit in the contention that the
Commission on Elections lacks power to impose the disciplinary penalty meted out to
petitioner in the decision subject of review. We had occasion to stress in the case
of Guevara v. The Commission on Elections 1 that under the law and the constitution, the
Commission on Elections has only the duty to enforce and administer all laws to the
conduct of elections, but also the power to try, hear and decide any controversy that may
be submitted to it in connection with the elections. In this sense, said, the Commission,
although it cannot be classified a court of justice within the meaning of the Constitution
(Section 30, Article VIII), for it is merely an administrative body, may however exercise
quasi-judicial functions insofar as controversies that by express provision law come
under its jurisdiction. The difficulty lies in drawing the demarcation line between the duty
which inherently is administrative in character and a function which calls for the exercise
of the quasi-judicial function of the Commission. In the same case, we also expressed the
view that when the Commission exercises a ministerial function it cannot exercise the
power to punish contempt because such power is inherently judicial in nature, as can be
clearly gleaned from the following doctrine we laid down therein:

. . . In proceeding on this matter, it only discharged a ministerial duty; it did not

exercise any judicial function. Such being the case, it could not exercise the
power to punish for contempt as postulated in the law, for such power is
inherently judicial in nature. As this Court has aptly said: 'The power to punish
for contempt is inherent in all courts; its existence is essential to the
preservation of order in judicial proceedings, and to the enforcement of
judgments, orders and mandates courts, and, consequently, in the
administration of justice (Slade Perkins v. Director of Prisons, 58 Phil., 271;
U.S. v. Lee Hoc, 36 Phil., 867; In Re Sotto, 46 O.G., 2570; In Re Kelly, Phil.,
944). The exercise of this power has always been regarded as a necessary
incident and attribute of courts (Slade Perkins v. Director of Prisons, Ibid.). Its
exercise by administrative bodies has been invariably limited to making
effective the power to elicit testimony (People v. Swena, 296 P., 271). And the
exercise of that power by an administrative body in furtherance of its

60
 administrative function has been held invalid (Langenberg v. Lecker, 31 N.E.,
190; In Re Sims, 37 P., 135; Roberts v. Hacney, 58 SW., 810).1awphl.nt

In the instant case, the resolutions which the Commission tried to enforce and for whose
violation the charge for contempt was filed against petitioner Masangcay merely call for
the exercise of an administrative or ministerial function for they merely concern the
procedure to be followed in the distribution of ballots and other election paraphernalia
among the different municipalities. In fact, Masangcay, who as provincial treasurer of
Aklan was the one designated to take charge of the receipt, custody and distribution of
election supplies in that province, was charged with having opened three boxes
containing official ballots for distribution among several municipalities in violation of the
instructions of the Commission which enjoin that the same cannot be opened except in
the presence of the division superintendent of schools, the provincial auditor, and the
authorized representatives of the Nacionalista Party, the Liberal Party, and the Citizens'
Party, for he ordered their opening and distribution not in accordance with the manner
and procedure laid down in said resolutions. And because of such violation he was dealt
as for contempt of the Commission and was sentenced accordingly. In this sense, the
Commission has exceeded its jurisdiction in punishing him for contempt, and so its
decision is null and void.

Having reached the foregoing conclusion, we deem it unnecessary to pass on the question
of constitutionality raised by petitioner with regard to the portion of Section 5 of the
Revised Election Code which confers upon the Commission on Elections the power to
punish for contempt for acts provided for in Rule 64 of our rules of court.

WHEREFORE, the decision appealed from insofar as petitioner Benjamin Masangcay is

concerned, as well as the resolution denying petitioner's motion for reconsideration,
insofar as it concerns him, are hereby reversed, without pronouncement as to costs.

61
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 118702 March 16, 1995

CIRILO ROY G. MONTEJO, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

SERGIO A.F. APOSTOL, intervenor.

PUNO, J.:

More than political fortunes are at stake in the case at bench. Petitioner Cirilo Roy G.
Montejo, representing the First District of Leyte, pleads for the annulment of section 1 of
Resolution No. 2736 of the COMELEC, redistricting certain municipalities in Leyte, on
the ground that it violates the principle of equality of representation. To remedy the
alleged inequity, petitioner seeks to transfer the municipality of Tolosa from his district to
the Second District of the province. Intervenor Sergio A.F. Apostol, representing the
Second District, vigorously opposed the inclusion of Tolosa in his district. We gave due
course to the petition considering that, at bottom, it involves the validity of the
unprecedented exercise by the COMELEC of the legislative power of redistricting and
reapportionment.

The province of Leyte with the cities of Tacloban and Ormoc is composed of five (5)
legislative districts. 1

The first district 2 covers Tacloban City and the municipalities of Alangalang, Babatngon,
Palo, San Miguel, Sta. Fe, Tanauan and Tolosa.

The second district 3 is composed of the municipalities of Barugo, Barauen, Capoocan,

Carigara, Dagami, Dulag, Jaro, Julita, La Pat, Mayorga, MacArthur, Pastrana,
Tabontabon, and Tunga.

62
The third district 4 is composed of the municipalities of Almeria, Biliran, Cabucgayan,
Caibiran, Calubian, Culaba, Kawayan, Leyte, Maripipi, Naval, San Isidro, Tabango, and
Villaba.

The fourth district 5 is composed of Ormoc City and the municipalities of Albuera, Isabel,
Kananga, Matagob, Merida, and Palompon.

The fifth district 6 is composed of the municipalities of Abuyog, Bate, Baybay, Hilongos,
Hindang, Inopacan, Javier, Mahaplag, and Matalom.

Biliran, located in the third district of Leyte , was made its sub-province by virtue of
Republic Act No. 2141 Section 1 of the law spelled out enacted on April 8, 1959. 7

Section 1 of the law spelled out the municipalities comprising the sub-province, viz.:
"Almeria, Biliran, Cabucgayan, Caibiran, Culaba, Kawayan, Maripipi and Naval and all
the territories comprised therein."

On January 1, 1992, the Local Government Code took effect. Pursuant to its Section 462,
the sub-province of Biliran became a regular province. It provides:

Existing sub-provinces are hereby converted into

regular provinces upon approval by a majority of
the votes cast in a plebiscite to be held in the sub-
provinces and the original provinces directly
affected. The plebiscite shall be conducted by the
COMELEC simultaneously with the national
elections following the effectivity of this code.
The new legislative districts created as a result of
such conversion shall continue to be represented
in Congress by the duly-elected representatives of
the original districts out of which said new
provinces or districts were created until their own
representatives shall have been elected in the next
regular congressional elections and qualified.

The conversion of Biliran into a regular province was approved by a majority of the votes
cast in a plebiscite held on May 11, 1992. As a consequence of the conversion, eight (8)
municipalities of the Third District composed the new province of Biliran, i.e., Almeria,
Biliran, Cabucgayan, Caibiran, Culaba, Kawayan, Maripipi, and Naval. A further
consequence was to reduce the Third District to five (5) municipalities with a total
population of 145,067 as per the 1990 census.

63
To remedy the resulting inequality in the distribution of inhabitants, voters and
municipalities in the province of Leyte, respondent COMELEC held consultation
meetings with the incumbent representatives of the province and other interested parties.
On December 29, 1994, it promulgated Resolution No. 2736 where, among others, it
transferred the municipality of Capoocan of the Second District and the municipality of
Palompon of the Fourth District to the Third District of Leyte. The composition of the
First District which includes the municipality of Tolosa and the composition of the Fifth
District were not disturbed. After the movement of municipalities, the composition of the
five (5) legislative districts appeared as follows:

First District: Population Registered

Voters
(1990) (1994)

1. Tacloban City, 137,190 81,679

2. Alangalang, 33,375 20,543
3. Babatngon, 17,795 9,929
4. Palo, 38,100 20,816
5. San Miguel, 13,438 8,167
6. Sta. Fe, 12,119 7,497
7. Tanauan and, 38,033 22,357
8. Tolosa; 13,299 7,700

TOTAL 303,349 178,688

Second District: Population Registered

Voters
(1990) (1994)

1. Barugo, 23,817 13,237

2. Barauen, 46,029 23,307
3. Carigara 38,863 22,036
4. Dagami, 25,606 16,519
5. Dulag, 33,020 19,375
6. Jaro, 31,727 17,139
7. Julita, 9,944 6,196
8. La Paz, 14,311 9,003
9. Mayorga, 10,530 5,868
10. Mac Arthur, 13,159 8,628
11. Pastrana, 12,565 7,348
12. Tabontabon, and 7,183 4,419
13. Tunga; 5,413 3,387

TOTAL 272,167 156,462

64
 Third District: Population Registered
Voters
(1990) (1994)

1. Calubian, 25,968 16,649

2. Leyte, 32,575 16,415
3. San Isidro, 24,442 14,916
4. Tabango, 29,743 15,48
5. Villaba, 32,339 21,227
6. Capoocan, and 23,687 13,595
7. Palompon; 45,745 27,474

TOTAL 214,499 125,763

Fourth District: Population Registered

Voters
(1990) (1994)

1. Ormoc City, 129,456 75,140

2. Albuera, 32,395 17,493
3. Isabel, 33,389 21,889
4. Kananga, 36,288 19,873
5. Matagob, 15,474 9,407
6. Merida, and 22,345 12,474

TOTAL 269,347 155,995

Fifth District: Population Registered

Voters
(1990) (1994)

1. Abuyog, 47,265 28,682

2. Bato, 28,197 116,13
3. Baybay, 82,281 47,923
4. Hilongos, 48,617 26,871
5. Hindang, 16,272 9,659
6. Inopacan, 16,894 10,401
7. Javier, 18,658 11,713
8. Mahaplag, and 22,673 13,616
9. Matalom 28,291 16,247

TOTAL 309,148 181,242

65
Petitioner Montejo filed a motion for reconsideration calling the attention of respondent
COMELEC, among others, to the inequitable distribution of inhabitants and voters
between the First and Second Districts. He alleged that the First District has 178,688
registered voters while the Second District has 156,462 registered voters or a difference
of 22,226 registered voters. To diminish the difference, he proposed that the municipality
of Tolosa with 7,7000 registered voters be transferred from the First to the Second
District. The motion was opposed by intervenor, Sergio A.F. Apostol. Respondent
Commission denied the motion ruling that: (1) its adjustment of municipalities involved
the least disruption of the territorial composition of each district; and (2) said adjustment
complied with the constitutional requirement that each legislative district shall comprise,
as far as practicable, contiguous, compact and adjacent territory.

In this petition, petitioner insists that Section I of Resolution No. 2736 violates the
principle of equality of representation ordained in the Constitution. Citing Wesberry
v. Sanders, 8 he argues that respondent COMELEC violated "the constitutional precept
that as much as practicable one man's vote in a congressional election is to be worth as
much as another's." The Solicitor General, in his Comment, concurred with the views of
the petitioner. The intervenor, however, opposed the petition on two (2) grounds: (1)
COMELEC has no jurisdiction to promulgate Resolution No. 2736; and (2) assuming it
has jurisdiction, said Resolution is in accord with the Constitution. Respondent
COMELEC filed its own Comment alleging that it acted within the parameters of the
Constitution.

We find section 1 of Resolution No. 2736 void.

While the petition at bench presents a significant issue, our first inquiry will relate to the
constitutional power of the respondent COMELEC 9 to transfer municipalities from one
legislative district to another legislative district in the province of Leyte. The basic
powers of respondent COMELEC, as enforcer and administrator of our election laws, are
spelled out in black and white in section 2(c), Article IX of the Constitution. Rightly,
respondent COMELEC does not invoke this provision but relies on the Ordinance
appended to the 1987 Constitution as the source of its power of redistricting which is
traditionally regarded as part of the power to make laws. The Ordinance is entitled
"Apportioning the Seats of the House of Representatives of the Congress of the
Philippines to the Different Legislative Districts in Provinces and Cities and the
Metropolitan Manila Area." Its substantive sections state:

Sec. 1. For purposes of the election of Members of the House of

Representatives of the First Congress of the Philippines under the
Constitution proposed by the 1986 Constitutional Commission and
subsequent elections, and until otherwise provided by law, the
Members thereof shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan Manila
Area as follows:

66
 xxx xxx xxx

Sec. 2. The Commission on Elections is hereby empowered to

make minor adjustments of the reapportionment herein made.

Sec. 3. Any province that may hereafter be created, or any city whose
population may hereafter increase to more than two hundred fifty
thousand shall be entitled in the immediately following election to at
least one Member or such number of Members as it may be entitled
to on the basis of the number of its inhabitants and according to the
standards set forth in paragraph (3), Section 5 of Article VI of the
Constitution. The number of Members apportioned to the province
out of which such new province was created or where the city, whose
population has so increased, is geographically located shall be
correspondingly adjusted by the Commission on Elections but such
adjustment shall not be made within one hundred and twenty days
before the election. (Emphasis supplied)

The Ordinance was made necessary because Proclamation No. 3 10 of President Corazon
C. Aquino, ordaining the Provisional Constitution of the Republic of the Philippines,
abolished the Batasang Pambansa. 11 She then exercised legislative powers under the
Provisional Constitution. 12

The Ordinance was the principal handiwork of then Commissioner Hilario G. Davide,
Jr., 13 now a distinguished member of this Court. The records reveal that the
Constitutional Commission had to resolve several prejudicial issues before authorizing
the first congressional elections under the 1987 Constitution. Among the vital issues
were: whether the members of the House of Representatives would be elected by district
or by province; who shall undertake the apportionment of the legislative districts;
and, how the apportionment should be made. 14 Commissioner Davide, Jr. offered three
(3) options for the Commission to consider: (1) allow President Aquino to do the
apportionment by law; (2) empower the COMELEC to make the apportionment; or (3) let
the Commission exercise the power by way of an Ordinance appended to the
Constitution. 15 The different dimensions of the options were discussed by
Commissioners Davide, Felicitas S. Aquino and Blas F. Ople. We quote the debates
in extenso, viz.: 16

xxx xxx xxx

MR. PADILLA. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Padilla is

recognized.

67
MR. PADILLA. I think I have filed a very simple motion by way of
amendment by substitution and this was, I believe, a prior or a
proposed amendment. Also, the chairman of the Committee on the
Legislative said that he was proposing a vote first by the Chamber on
the concept of whether the election is by province and cities on the
one hand, or by legislative districts on the other. So I propose this
simple formulation which reads: "FOR THE FIRST ELECTION
UNDER THIS CONSTITUTION THE LEGISLATIVE DISTRICTS
SHALL BE APPORTIONED BY THE COMMISSION ON
ELECTIONS." I hope the chairman will accept the proposed
amendment.

SUSPENSION OF SESSION

MR. DAVIDE. The effect is, more or less, the same insofar as the
apportionment is concerned, but the Bernas-Sarmiento et al. proposal
would also provide for a mandate for the apportionment later,
meaning after the first election, which will in effect embody what the
Commission had approved, reading as follows: "Within three years
following the return of every census, the Congress shall make a
reapportionment of legislative districts based on the standards
provided in this section."

So, Mr. Presiding Officer, may I request for a suspension of the

session, so that all the proponents can work together.

THE PRESIDING OFFICER (Mr. Jamir). The session is suspended.

It was 3:33 p.m.

RESUMPTION OF SESSION

At 3:40 p.m., the session was resumed.

THE PRESIDING OFFICER (Mr. Jamir). The session is resumed.

Commissioner Davide is recognized.

MR. DAVIDE. Mr. Presiding Officer, as a compromise, I wonder if

the Commission will allow this. We will just delete the proposed
subparagraph (4) and all the capitalized words in paragraph (5). So
that in paragraph (5), what would be left would only be the

68
following: "Within three years following the return of every census,
the Congress shall make a reapportionment of legislative districts
based on the standards provided in this section."

But we shall have an ordinance appended to the new Constitution

indicating specifically the following: "FOR PURPOSES OF THE
ELECTION OF MEMBERS OF THE HOUSE OF
REPRESENTATIVES IN THE FIRST CONGRESSIONAL
ELECTION IMMEDIATELY FOLLOWING THE RATIFICATION
OF THIS CONSTITUTION PROPOSED BY THE 1986
CONSTITUTIONAL COMMISSION AND SUBSEQUENT
ELECTIONS AND UNTIL OTHERWISE PROVIDED BY LAW,
THE MEMBERS OF THE HOUSE OF REPRESENTATIVES
SHALL BE ELECTED FROM LEGISLATIVE DISTRICTS
APPORTIONED AMONG THE PROVINCES, CITIES AND THE
METROPOLITAN MANILA AREA AS FOLLOWS."

And what will follow will be the allocation of seats to Metropolitan

Manila Area, to the provinces and to the cities, without indicating the
municipalities comprising each of the districts. Then, under Section
2, we will mandate the COMELEC to make the actual apportionment
on the basis of the number of seats provided for and allocated to each
province by us.

MS. AQUINO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Aquino is

recognized.

MS. AQUINO. I have to object to the provision which will give

mandate to COMELEC to do the redistricting. Redistricting is vitally
linked to the baneful practices of cutting up areas or spheres of
influence; in other words, gerrymandering. This Commission, being a
nonpartisan, a nonpolitical deliberative body, is in the best possible
situation under the circumstances to undertake that responsibility. We
are not wanting in expertise and in time because in the first place, the
Committee on the Legislative has prepared the report on the basis of
the recommendation of the COMELEC.

MR. OPLE. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Ople is

recognized.

69
MR. OPLE. I would like to support the position taken by
Commissioner Aquino in this respect. We know that the
reapportionment of provinces and cities for the purpose of
redistricting is generally inherent in the constituent power or in the
legislative power. And I would feel very uncertain about delegating
this to a quasi-judicial body even if it is one of the constitutional
offices created under this Constitution. We have the assurance of
Commissioner Davide, as chairman of the Committee on the
Legislative, that even given the very short time remaining in the life
of this Commission, there is no reason why we cannot complete the
work of reapportionment on the basis of the COMELEC plan which
the committee has already thoroughly studied and which remains
available to the Constitutional Commission.

So, I support the position taken by Commissioner Aquino, Mr.

Presiding Officer. I think, it is the safest, the most reasonable, and the
most workable approach that is available to this Commission.

THE PRESIDING OFFICER (Mr. Jamir). What does Commissioner

Davide say:

MR. DAVIDE. The issue now is whether this body will make the
apportionment itself or whether we will leave it to the COMELEC.
So, there arises, therefore, a prejudicial question for the body to
decide. I would propose that the Commission should now decide
what body should make the apportionment. Should it be the
Commission or should it be the COMELEC? And the Committee on
the Legislative will act accordingly on the basis of the decision.

MR. BENGZON. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Bengzon is

recognized.

MR. BENGZON. Apropos of that, I would like to inform the body

that I believe the Committee on the Legislative has precisely worked
on this matter and they are ready with a list of apportionment. They
have, in fact, apportioned the whole country into various districts
based on the recommendation of the COMELEC. So they are ready
with the list and if this body would wish to apportion the whole
country by district itself, then I believe we have the time to do it
because the Committee on the Legislative is ready with that particular
report which need only to be appended to the Constitution. So if this
body is ready to accept the work of the Committee on the Legislative

70
we would have no problem. I just would like to give that information
so that the people here would be guided accordingly when they vote.

MR. RODRIGO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir) Commissioner Rodrigo is

recognized.

MR. RODRIGO. I just would like to ask Commissioner Davide some

questions.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide

may yield if he so desires.

MR. DAVIDE. Gladly.

MR. RODRIGO. Will this apportionment which we are considering

apply only to the first election after the enactment of the
Constitution?

MR. DAVIDE. On the basis of the Padilla proposal, it will be for the
first election; on the basis of the Sarmiento proposal, it will only
apply to the first election.

MR. RODRIGO. And after that, Congress will have the power to
reapportion.

MR. DAVIDE. Yes.

MR. RODRIGO. So, if we attach this to the Constitution the

reapportionment based on the COMELEC study and between the
approval of the Constitution and the first election the COMELEC
no longer has the power to change that even a bit.

xxx xxx xxx

THE PRESIDING OFFICER (Mr. Jamir) Commissioner Regalado is

recognized.

MR. REGALADO. May I address a clarificatory question to

Commissioner Davide?

71
THE PRESIDING OFFICER (Mr. Jamir). Gentleman will please
proceed.

MR. REGALADO. On the basis of the Commissioner's proposed

apportionment and considering the fact that there will be a
corresponding reduction to 183 seats, would there be instances
representation of under non-representation?

MR. DAVIDE. None at all, Mr. Presiding Officer. I can assure the
Commission that there will be no case of inequitable distribution. It
will come out to be one for every 350 to 400,000 inhabitants.

MR. REGALADO. And that would be within the standard that we

refer.

MR. DAVIDE. Yes, Mr. Presiding Officer.

MR. REGALADO. Thank you.

MR. RAMA. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). The Floor Leader is

recognized.

MR. RAMA. The parliamentary situation is that there was a motion

by Commissioner Sarmiento to mandate COMELEC to do the
redistricting. This was also almost the same motion by Commissioner
Padilla and I think we have had some kind of meeting of minds. On
the other hand, there seems to be a prejudicial question, an
amendment to the amendment as suggested by Commissioner
Aquino, that instead of the COMELEC, it should be this Commission
that shall make the redistricting. So may I ask Commissioner Aquino,
if she insists on that idea, to please formulate it into a motion so we
can vote on that first as an amendment to the amendment.

THE PRESIDING OFFICER (Mr. Jamir).Commissioner Aquino is

recognized.

MS . AQUINO. The motion is for this Commission to undertake the

apportionment of the legislative districts instead of the proposal that
COMELEC be given the mandate to undertake the responsibility.

72
 xxx xxx xxx

MR. SARMIENTO. May I be clarified, Mr. Presiding Officer. Is it

the motion or the proposed amendment?

THE PRESIDING OFFICER (Mr. Jamir). The proposed amendment.

MR. SARMIENTO. May we move for the approval of this proposed

amendment which we substitute for paragraphs 4 and 5.

MR. DAVIDE. May I request that it should be treated merely as a

motion to be followed by a deletion of paragraph 4 because that
should not really appear as a paragraph in Section 5; otherwise, it will
appear very ugly in the Constitution where we mandate a
Commission that will become functus officio to have the authority.
As a matter of fact, we cannot exercise that authority until after the
ratification of the new Constitution.

THE PRESIDING OFFICER (Mr. Jamir). What does Commissioner

Sarmiento say?

MR. SARMIENTO. It is accepted, Mr. Presiding Officer. So, may I

move for the approval of this proposed amendment.

MS. AQUINO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Aquino is

recognized.

MS. AQUINO. Would that require a two-thirds vote or a simple

plurality to adopt that motion?

THE PRESIDING OFFICER (Mr. Jamir). That will require a two-

thirds vote.

MS. AQUINO. Thank you. Mr. Presiding Officer.

MR. SARMIENTO. May I restate the motion, Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir) The Gentleman may

proceed.

73
 MR. SARMIENTO. May I move that this Commission do the
reapportionment legislative districts.

MS. AQUINO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). What is the pleasure of

Commissioner Aquino?

MS. AQUINO. May I be clarified again on the motion. Is

Commissioner Sarmiento, therefore, adopting my motion? Would it
not be right for him to move that the COMELEC be mandated?

MR. SARMIENTO. No, we accepted the amendment. It is already

the Commission that will be mandated.

MS. AQUINO. So, the Gentlemen has accepted the amendment the
amendment.

Thank you.

MR. SARMIENTO. I am voting that this Commission do the

reapportionment.

VOTING

THE PRESIDING OFFICER (Mr. Jamir). Let us proceed to vote.

As many as are in favor, please raise their hand. (Several Members

raised their hand.)

As many as are against, please raise their hand. (No Member raised
his hand.)

The results show 30 votes in favor and none against; the motion is
approved.

Clearly then, the Constitutional Commission denied to the COMELEC the major power
of legislative apportionment as it itself exercised the power. Section 2 of the Ordinance
only empowered the COMELEC "to make minoradjustments of the
reapportionment herein made." The meaning of the phrase "minor adjustments was again
clarified in the debates 17 of the Commission, viz.:

74
 xxx xxx xxx

MR. GUINGONA. This is just clarificatory, Mr. Presiding Officer. In

Section 2, the Commission on Elections is empowered to make minor
adjustments on the apportionment made here.

MR. DAVIDE. Yes, Mr. Presiding Officer.

MR. GUINGONA. We have not set any time limit for this.

MR. DAVIDE. We should not set a time limit unless during the
period of amendments a proposal is made. The authority conferred
would be on minor corrections or amendments, meaning to say, for
instance, that we may have forgotten an intervening municipality in
the enumeration, which ought to be included in one district. That we
shall consider a minor amendment.

MR. GUINGONA. Thank you.

xxx xxx xxx

THE PRESIDING OFFICER (Mr. Romulo). Commissioner de

Castro is recognized.

MR. DE CASTRO. Thank you.

I was about to ask the committee the meaning of minor

adjustment. Can it be possible that one municipality in a district be
transferred to another district and call it a minor adjustment?

MR. DAVIDE. That cannot be done, Mr. Presiding Officer. Minor,

meaning, that there should be no change in the allocations per
district. However, it may happen that we have forgotten a
municipality in between which is still in the territory of one assigned
district, or there may be an error in the correct name of a particular
municipality because of changes made by the interim Batasang
Pambansa and the Regular Batasang Pambansa. There were many
batas pambansa enacted by both the interim and the Regular Batasang
Pambansa changing the names of municipalities.

MR. DE CASTRO. So, the minor adjustment may be made only if

one of the municipalities is not mentioned in the ordinance appended

75
 to, and it will be up for the COMELEC now to adjust or to put such
municipality to a certain district.

MR. DAVIDE. Yes, Mr. Presiding Officer. For instance, we may not
have the data regarding a division of a municipality by the interim
Batasang Pambansa or the Regular Batasang Pambansa into two
municipalities, meaning, a mother municipality and the new
municipality, but still actually these are within the geographical
district area.

MR. DE CASTRO. So the minor adjustment which the COMELEC

cannot do is that, if, for example, my municipality is in the First
District of Laguna, they cannot put that in any other district.

MR. DAVIDE. That is not even a minor correction. It is a

substantive one.

MR. DE CASTRO. Thank you.

Consistent with the limits of its power to make minor adjustments, Section 3 of the
Ordinance did not also give the respondent COMELEC any authority to
transfer municipalities from one legislative district to another district. The power granted
by Section 3 to the respondent COMELEC is to adjust the number of members (not
municipalities) "apportioned to the province out of which such new province was created.
. . ."

Prescinding from these premises, we hold that respondent COMELEC committed grave
abuse of discretion amounting to lack of jurisdiction when it promulgated section 1 of its
Resolution No. 2736 transferring the municipality of Capoocan of the Second District
and the municipality of Palompon of the Fourth District to the Third District of Leyte.

It may well be that the conversion of Biliran from a sub-province to a regular province
brought about an imbalance in the distribution of voters and inhabitants in the five (5)
legislative districts of the province of Leyte. This imbalance, depending on its degree,
could devalue a citizen's vote in violation of the equal protection clause of the
Constitution. Be that as it may, it is not proper at this time for petitioner to raise this issue
using the case at bench as his legal vehicle. The issue involves a problem of
reapportionment of legislative districts and petitioner's remedy lies with Congress.
Section 5(4), Article VI of the Constitution categorically gives Congress the power to
reapportion, thus: "Within three (3) years following the return of every census, the
Congress shall make a reapportionment of legislative districts based on the standards
provided in this section." In Macias v. COMELEC, 18 we ruled that the validity of a
legislative apportionment is a justiciable question. But while this Court can strike down

76
an unconstitutional reapportionment, it cannot itself make the reapportionment as
petitioner would want us to do by directing respondent COMELEC to transfer the
municipality of Tolosa from the First District to the Second District of the province of
Leyte.

IN VIEW WHEREOF, section 1 of Resolution No. 2736 insofar as it transferred the

municipality of Capoocan of the Second District and the municipality of Palompon of the
Fourth District to the Third District of the province of Leyte, is annulled and set aside.
We also deny the Petition praying for the transfer of the municipality of Tolosa from the
First District to the Second District of the province of Leyte. No costs.

SO ORDERED.

77
 EN BANC

JOSE L. ATIENZA, JR., MATIAS G.R. No. 188920

V. DEFENSOR, JR., RODOLFO G.
VALENCIA, DANILO E. SUAREZ,
SOLOMON R. CHUNGALAO,
SALVACION ZALDIVAR-PEREZ,
HARLIN CAST-ABAYON, MELVIN G.
MACUSI and ELEAZAR P. QUINTO,
Petitioners, Present:
Puno, C.J.,

Carpio,

Corona,

Carpio Morales,

Velasco, Jr.,

Nachura,

- versus - Leonardo-De Castro,

Brion,

Peralta,

Bersamin,

Del Castillo,

Abad,

Villarama, Jr.,

Perez, and

Mendoza, JJ.

COMMISSION ON ELECTIONS,

MANUEL A. ROXAS II,

FRANKLIN M. DRILON and Promulgated:

J.R. NEREUS O. ACOSTA,

Respondents. February 16, 2010

78
x ---------------------------------------------------------------------------------------- x

DECISION

ABAD, J.:

This petition is an offshoot of two earlier cases already resolved by the Court involving a
leadership dispute within a political party. In this case, the petitioners question their
expulsion from that party and assail the validity of the election of new party leaders
conducted by the respondents.

Statement of the Facts and the Case

For a better understanding of the controversy, a brief recall of the preceding events is in
order.

On July 5, 2005 respondent Franklin M. Drilon (Drilon), as erstwhile president

of the Liberal Party (LP), announced his partys withdrawal of support for the
administration of President Gloria Macapagal-Arroyo. But petitioner Jose L. Atienza, Jr.
(Atienza), LP Chairman, and a number of party members denounced Drilons move,
claiming that he made the announcement without consulting his party.

On March 2, 2006 petitioner Atienza hosted a party conference to supposedly discuss local
autonomy and party matters but, when convened, the assembly proceeded to declare all
positions in the LPs ruling body vacant and elected new officers, with Atienza as LP
president. Respondent Drilon immediately filed a petition[1] with the Commission on
Elections (COMELEC) to nullify the elections. He claimed that it was illegal considering
that the partys electing bodies, the National Executive Council (NECO) and the National
Political Council (NAPOLCO), were not properly convened. Drilon also claimed that
under the amended LP Constitution,[2] party officers were elected to a fixed three-year term
that was yet to end on November 30, 2007.

On the other hand, petitioner Atienza claimed that the majority of the LPs NECO and
NAPOLCO attended the March 2, 2006 assembly. The election of new officers on that
occasion could be likened to people power, wherein the LP majority removed respondent
Drilon as president by direct action. Atienza also said that the amendments[3] to the original
LP Constitution, or the Salonga Constitution, giving LP officers a fixed three-year term,

79
had not been properly ratified. Consequently, the term of Drilon and the other officers
already ended on July 24, 2006.

On October 13, 2006, the COMELEC issued a resolution, [4] partially granting respondent
Drilons petition. It annulled the March 2, 2006 elections and ordered the holding of a new
election under COMELEC supervision. It held that the election of petitioner Atienza and
the others with him was invalid since the electing assembly did not convene in accordance
with the Salonga Constitution. But, since the amendments to the Salonga Constitution had
not been properly ratified, Drilons term may be deemed to have ended. Thus, he held the
position of LP president in a holdover capacity until new officers were elected.

Both sides of the dispute came to this Court to challenge the COMELEC rulings. On April
17, 2007 a divided Court issued a resolution,[5] granting respondent Drilons petition and
denying that of petitioner Atienza. The Court held, through the majority, that the
COMELEC had jurisdiction over the intra-party leadership dispute; that the Salonga
Constitution had been validly amended; and that, as a consequence, respondent Drilons
term as LP president was to end only on November 30, 2007.

Subsequently, the LP held a NECO meeting to elect new party leaders before respondent
Drilons term expired. Fifty-nine NECO members out of the 87 who were supposedly
qualified to vote attended. Before the election, however, several persons associated with
petitioner Atienza sought to clarify their membership status and raised issues regarding the
composition of the NECO. Eventually, that meeting installed respondent Manuel A. Roxas
II (Roxas) as the new LP president.

On January 11, 2008 petitioners Atienza, Matias V. Defensor, Jr., Rodolfo G. Valencia,
Danilo E. Suarez, Solomon R. Chungalao, Salvacion Zaldivar-Perez, Harlin Cast-Abayon,
Melvin G. Macusi, and Eleazar P. Quinto, filed a petition for mandatory and prohibitory
injunction[6] before the COMELEC against respondents Roxas, Drilon and J.R. Nereus O.
Acosta, the party secretary general. Atienza, et al. sought to enjoin Roxas from assuming
the presidency of the LP, claiming that the NECO assembly which elected him was
invalidly convened. They questioned the existence of a quorum and claimed that the NECO
composition ought to have been based on a list appearing in the partys 60th Anniversary
Souvenir Program. Both Atienza and Drilon adopted that list as common exhibit in the
earlier cases and it showed that the NECO had 103 members.

Petitioners Atienza, et al. also complained that Atienza, the incumbent party chairman, was
not invited to the NECO meeting and that some members, like petitioner Defensor, were
given the status of guests during the meeting. Atienzas allies allegedly raised these issues
but respondent Drilon arbitrarily thumbed them down and railroaded the proceedings. He

80
suspended the meeting and moved it to another room, where Roxas was elected without
notice to Atienzas allies.

On the other hand, respondents Roxas, et al. claimed that Roxas election as LP president
faithfully complied with the provisions of the amended LP Constitution. The partys
60thAnniversary Souvenir Program could not be used for determining the NECO members
because supervening events changed the bodys number and composition. Some NECO
members had died, voluntarily resigned, or had gone on leave after accepting positions in
the government. Others had lost their re-election bid or did not run in the May 2007
elections, making them ineligible to serve as NECO members. LP members who got
elected to public office also became part of the NECO. Certain persons of national stature
also became NECO members upon respondent Drilons nomination, a privilege granted the
LP president under the amended LP Constitution. In other words, the NECO membership
was not fixed or static; it changed due to supervening circumstances.

Respondents Roxas, et al. also claimed that the party deemed petitioners Atienza, Zaldivar-
Perez, and Cast-Abayon resigned for holding the illegal election of LP officers on March
2, 2006. This was pursuant to a March 14, 2006 NAPOLCO resolution that NECO
subsequently ratified. Meanwhile, certain NECO members, like
petitioners Defensor, Valencia, and Suarez, forfeited their party membership when they ran
under other political parties during the May 2007 elections. They were dropped from the
roster of LP members.

On June 18, 2009 the COMELEC issued the assailed resolution denying petitioners
Atienza, et al.s petition. It noted that the May 2007 elections necessarily changed the
composition of the NECO since the amended LP Constitution explicitly made incumbent
senators, members of the House of Representatives, governors and mayors members of that
body. That some lost or won these positions in the May 2007 elections affected the NECO
membership. Petitioners failed to prove that the NECO which elected Roxas as LP
president was not properly convened.

As for the validity of petitioners Atienza, et al.s expulsion as LP members, the COMELEC
observed that this was a membership issue that related to disciplinary action within the
political party. The COMELEC treated it as an internal party matter that was beyond its
jurisdiction to resolve.

Without filing a motion for reconsideration of the COMELEC resolution, petitioners

Atienza, et al. filed this petition for certiorari under Rule 65.

81
 The Issues Presented

Respondents Roxas, et al. raise the following threshold issues:

1. Whether or not the LP, which was not impleaded in the case, is an
indispensable party; and

2. Whether or not petitioners Atienza, et al., as ousted LP members, have the

requisite legal standing to question Roxas election.

Petitioners Atienza, et al., on the other hand, raise the following issues:

3. Whether or not the COMELEC gravely abused its discretion when it upheld
the NECO membership that elected respondent Roxas as LP president;

4. Whether or not the COMELEC gravely abused its discretion when it resolved
the issue concerning the validity of the NECO meeting without first resolving the issue
concerning the expulsion of Atienza, et al. from the party; and

5. Whether or not respondents Roxas, et al. violated petitioners Atienza, et al.s

constitutional right to due process by the latters expulsion from the party.

The Courts Ruling

One. Respondents Roxas, et al. assert that the Court should dismiss the petition
for failure of petitioners Atienza, et al. to implead the LP as an indispensable
party. Roxas, et al. point out that, since the petition seeks the issuance of a writ of

82
mandatory injunction against the NECO, the controversy could not be adjudicated with
finality without making the LP a party to the case. [7]

But petitioners Atienza, et al.s causes of action in this case consist in respondents Roxas, et
al.s disenfranchisement of Atienza, et al. from the election of party leaders and in the
illegal election of Roxas as party president. Atienza, et al. were supposedly excluded from
the elections by a series of despotic acts of Roxas, et al., who controlled the
proceedings. Among these acts are Atienza, et al.s expulsion from the party, their exclusion
from the NECO, and respondent Drilons railroading of election proceedings. Atienza, et
al. attributed all these illegal and prejudicial acts to Roxas, et al.

Since no wrong had been imputed to the LP nor had some affirmative relief been
sought from it, the LP is not an indispensable party. Petitioners Atienza, et al.s prayer for
the undoing of respondents Roxas, et al.s acts and the reconvening of the NECO are
directed against Roxas, et al.

Two. Respondents Roxas, et al. also claim that petitioners Atienza, et al. have
no legal standing to question the election of Roxas as LP president because they are no
longer LP members, having been validly expelled from the party or having joined other
political parties.[8] As non-members, they have no stake in the outcome of the action.

But, as the Court held in David v. Macapagal-Arroyo,[9] legal standing in suits is

governed by the real parties-in-interest rule under Section 2, Rule 3 of the Rules of
Court. This states that every action must be prosecuted or defended in the name of the real
party-in-interest. And real party-in-interest is one who stands to be benefited or injured by
the judgment in the suit or the party entitled to the avails of the suit. In other words, the
plaintiffs standing is based on his own right to the relief sought. In raising petitioners
Atienza, et al.s lack of standing as a threshold issue, respondents Roxas, et al. would have
the Court hypothetically assume the truth of the allegations in the petition.

Here, it is precisely petitioners Atienza, et al.s allegations that respondents

Roxas, et al. deprived them of their rights as LP members by summarily excluding them
from the LP roster and not allowing them to take part in the election of its officers and that
not all who sat in the NECO were in the correct list of NECO members. If Atienza, et al.s
allegations were correct, they would have been irregularly expelled from the party and the
election of officers, void. Further, they would be entitled to recognition as members of
good standing and to the holding of a new election of officers using the correct list of
NECO members. To this extent, therefore, Atienza, et al. who want to take part in another

83
election would stand to be benefited or prejudiced by the Courts decision in this case.
Consequently, they have legal standing to pursue this petition.

Three. In assailing respondent Roxas election as LP president, petitioners

Atienza, et al. claim that the NECO members allowed to take part in that election should
have been limited to those in the list of NECO members appearing in the partys
60th Anniversary Souvenir Program. Atienza, et al. allege that respondent Drilon, as
holdover LP president, adopted that list in the earlier cases before the COMELEC and it
should thus bind respondents Roxas, et al. The Courts decision in the earlier cases, said
Atienza, et al., anointed that list for the next party election. Thus, Roxas, et al. in effect
defied the Courts ruling when they removed Atienza as party chairman and changed the
NECOs composition.[10]

But the list of NECO members appearing in the partys 60th Anniversary Souvenir
Program was drawn before the May 2007 elections. After the 2007 elections, changes in
the NECO membership had to be redrawn to comply with what the amended LP
Constitution required. Respondent Drilon adopted the souvenir program as common
exhibit in the earlier cases only to prove that the NECO, which supposedly elected Atienza
as new LP president on March 2, 2006, had been improperly convened. It cannot be
regarded as an immutable list, given the nature and character of the NECO membership.

Nothing in the Courts resolution in the earlier cases implies that the NECO
membership should be pegged to the partys 60th Anniversary Souvenir Program. There
would have been no basis for such a position. The amended LP Constitution did not intend
the NECO membership to be permanent. Its Section 27[11] provides that the NECO shall
include all incumbent senators, members of the House of Representatives, governors, and
mayors who were LP members in good standing for at least six months. It follows from
this that with the national and local elections taking place in May 2007, the number and
composition of the NECO would have to yield to changes brought about by the elections.

Former NECO members who lost the offices that entitled them to membership
had to be dropped. Newly elected ones who gained the privilege because of their offices
had to come in. Furthermore, former NECO members who passed away, resigned from the
party, or went on leave could not be expected to remain part of the NECO that convened
and held elections on November 26, 2007. In addition, Section 27 of the amended LP
Constitution expressly authorized the party president to nominate persons of national
stature to the NECO. Thus, petitioners Atienza, et al. cannot validly object to the admission
of 12 NECO members nominated by respondent Drilon when he was LP president. Even
if this move could be regarded as respondents Roxas, et al.s way of ensuring their election

84
as party officers, there was certainly nothing irregular about the act under the amended LP
Constitution.

The NECO was validly convened in accordance with the amended LP

Constitution. Respondents Roxas, et al. explained in details how they arrived at the NECO
composition for the purpose of electing the party leaders.[12] The explanation is logical and
consistent with party rules. Consequently, the COMELEC did not gravely abuse its
discretion when it upheld the composition of the NECO that elected Roxas as LP president.

Petitioner Atienza claims that the Courts resolution in the earlier cases
recognized his right as party chairman with a term, like respondent Drilon, that would last
up to November 30, 2007 and that, therefore, his ouster from that position violated the
Courts resolution. But the Courts resolution in the earlier cases did not preclude the party
from disciplining Atienza under Sections 29[13] and 46[14] of the amended LP Constitution.
The party could very well remove him or any officer for cause as it saw fit.

Four. Petitioners Atienza, et al. lament that the COMELEC selectively

exercised its jurisdiction when it ruled on the composition of the NECO but refused to
delve into the legality of their expulsion from the party. The two issues, they said, weigh
heavily on the leadership controversy involved in the case. The previous rulings of the
Court, they claim, categorically upheld the jurisdiction of the COMELEC over intra-party
leadership disputes.[15]

But, as respondents Roxas, et al. point out, the key issue in this case is not the validity of
the expulsion of petitioners Atienza, et al. from the party, but the legitimacy of the NECO
assembly that elected respondent Roxas as LP president. Given the COMELECs finding
as upheld by this Court that the membership of the NECO in question complied with the
LP Constitution, the resolution of the issue of whether or not the party validly expelled
petitioners cannot affect the election of officers that the NECO held.

While petitioners Atienza, et al. claim that the majority of LP members belong to their
faction, they did not specify who these members were and how their numbers could
possibly affect the composition of the NECO and the outcome of its election of party
leaders. Atienza, et al. has not bothered to assail the individual qualifications of the NECO
members who voted for Roxas. Nor did Atienza, et al. present proof that the NECO had no
quorum when it then assembled. In other words, the claims of Atienza, et al. were totally
unsupported by evidence.

85
 Consequently, petitioners Atienza, et al. cannot claim that their expulsion from
the party impacts on the party leadership issue or on the election of respondent Roxas as
president so that it was indispensable for the COMELEC to adjudicate such claim. Under
the circumstances, the validity or invalidity of Atienza, et al.s expulsion was purely a
membership issue that had to be settled within the party. It is an internal party matter over
which the COMELEC has no jurisdiction.

What is more, some of petitioner Atienzas allies raised objections before the NECO
assembly regarding the status of members from their faction. Still, the NECO proceeded
with the election, implying that its membership, whose composition has been upheld, voted
out those objections.

The COMELECs jurisdiction over intra-party disputes is limited. It does not have blanket
authority to resolve any and all controversies involving political parties. Political parties
are generally free to conduct their activities without interference from the state. The
COMELEC may intervene in disputes internal to a party only when necessary to the
discharge of its constitutional functions.

The COMELECs jurisdiction over intra-party leadership disputes has already been settled
by the Court. The Court ruled in Kalaw v. Commission on Elections[16] that the
COMELECs powers and functions under Section 2, Article IX-C of the Constitution,
include the ascertainment of the identity of the political party and its legitimate officers
responsible for its acts. The Court also declared in another case[17] that the COMELECs
power to register political parties necessarily involved the determination of the persons
who must act on its behalf. Thus, the COMELEC may resolve an intra-party leadership
dispute, in a proper case brought before it, as an incident of its power to register political
parties.

The validity of respondent Roxas election as LP president is a leadership issue that the
COMELEC had to settle. Under the amended LP Constitution, the LP president is the
issuing authority for certificates of nomination of party candidates for all national elective
positions. It is also the LP president who can authorize other LP officers to issue certificates
of nomination for candidates to local elective posts.[18] In simple terms, it is the LP
president who certifies the official standard bearer of the party.

The law also grants a registered political party certain rights and privileges that will
redound to the benefit of its official candidates. It imposes, too, legal obligations upon
registered political parties that have to be carried out through their leaders. The resolution
of the leadership issue is thus particularly significant in ensuring the peaceful and orderly
conduct of the elections.[19]

86
 Five. Petitioners Atienza, et al. argue that their expulsion from the party is not a
simple issue of party membership or discipline; it involves a violation of their
constitutionally-protected right to due process of law. They claim that the NAPOLCO and
the NECO should have first summoned them to a hearing before summarily expelling them
from the party. According to Atienza, et al., proceedings on party discipline are the
equivalent of administrative proceedings[20] and are, therefore, covered by the due process
requirements laid down in Ang Tibay v. Court of Industrial Relations.[21]

But the requirements of administrative due process do not apply to the internal
affairs of political parties. The due process standards set in Ang Tibay cover only
administrative bodies created by the state and through which certain governmental acts or
functions are performed. An administrative agency or instrumentality contemplates an
authority to which the state delegates governmental power for the performance of a state
function.[22] The constitutional limitations that generally apply to the exercise of the states
powers thus, apply too, to administrative bodies.

The constitutional limitations on the exercise of the states powers are found in
Article III of the Constitution or the Bill of Rights. The Bill of Rights, which guarantees
against the taking of life, property, or liberty without due process under Section 1 is
generally a limitation on the states powers in relation to the rights of its citizens. The right
to due process is meant to protect ordinary citizens against arbitrary government action,
but not from acts committed by private individuals or entities. In the latter case, the specific
statutes that provide reliefs from such private acts apply. The right to due process guards
against unwarranted encroachment by the state into the fundamental rights of its citizens
and cannot be invoked in private controversies involving private parties.[23]

Although political parties play an important role in our democratic set-up as an

intermediary between the state and its citizens, it is still a private organization, not a state
instrument. The discipline of members by a political party does not involve the right to life,
liberty or property within the meaning of the due process clause. An individual has no
vested right, as against the state, to be accepted or to prevent his removal by a political
party. The only rights, if any, that party members may have, in relation to other party
members, correspond to those that may have been freely agreed upon among themselves
through their charter, which is a contract among the party members. Members whose rights
under their charter may have been violated have recourse to courts of law for the
enforcement of those rights, but not as a due process issue against the government or any
of its agencies.

87
But even when recourse to courts of law may be made, courts will ordinarily not interfere
in membership and disciplinary matters within a political party. A political party is free to
conduct its internal affairs, pursuant to its constitutionally-protected right to free
association. In Sinaca v. Mula,[24] the Court said that judicial restraint in internal party
matters serves the public interest by allowing the political processes to operate without
undue interference. It is also consistent with the state policy of allowing a free and open
party system to evolve, according to the free choice of the people. [25]

To conclude, the COMELEC did not gravely abuse its discretion when it upheld
Roxas election as LP president but refused to rule on the validity of Atienza, et al.s
expulsion from the party. While the question of party leadership has implications on the
COMELECs performance of its functions under Section 2, Article IX-C of the
Constitution, the same cannot be said of the issue pertaining to Atienza, et al.s expulsion
from the LP. Such expulsion is for the moment an issue of party membership and
discipline, in which the COMELEC cannot intervene, given the limited scope of its power
over political parties.

WHEREFORE, the Court DISMISSES the petition and UPHOLDS the

Resolution of the Commission on Elections dated June 18, 2009 in COMELEC Case SPP
08-001.

SO ORDERED.

88
 FIRST DIVISION

[G.R. No. 134932. February 18, 2000]

VITO BESO, petitioner, vs. RITA ABALLE and HON. ROBERTO A. NAVIDAD,
Acting Presiding Judge, Branch 31, Regional Trial Court of Calbayog
City, respondents. francis

DECISION

DAVIDE, JR., C.J.:

On 15 December 1999 we resolved to give due course to this petition for certiorari and to
decide it on the basis of the pleadings filed by the parties.

The antecedents are not disputed.

Petitioner Vito Beso (hereafter BESO) and private respondent Rita Aballe (hereafter
ABALLE) were candidates for the position of Barangay Captain of Barangay Carayman,
Calbayog City, in the barangay elections of 12 May 1997.

In the canvass of the returns of the four precincts of Barangay Carayman, BESO was
credited with four hundred ninety-five (495) votes, while ABALLE obtained four
hundred ninety-six (496) votes. The latter was thus proclaimed the winning candidate.

BESO seasonably filed a protest with the Municipal Trial Court of Calbayog City
(hereafter MTCC). The case was docketed as Election Protest No. 130. marie

After due proceedings, the MTCC, per Judge Filemon A. Tandico, Jr., promulgated on 20
January 1998 a decision (rollo, 28), dated 13 January 1998, in favor of BESO. The
decretal portion thereof reads as follows:

ACCORDINGLY, the proclamation made by the Board of

Canvassers concerned should be, as it is hereby, reversed and another
entered declaring Protestant VITO A. BESO, the duly elected Punong
Barangay of Brgy. Carayman, Calbayog City, in the elections of 12
May 1997, with the right to assume office as soon as judgment
becomes final. No pronouncement as to costs.

After this decision becomes final, let a copy thereof be furnished the
Commission on Elections, the Department of Interior and Local
Government and the Commission on Audit.

89
 SO ORDERED (id., 39). novero

On 20 January 1998 ABALLE filed a Notice of Appeal (id., 40) manifesting therein that
she is appealing from the decision "to the Regional Trial Court, Calbayog City." It
likewise appears that on 22 January 1998, ABALLE filed a Notice of Appeal (id., 41),
indicating therein that she was appealing from the decision "to the COMMISSION ON
ELECTIONS, MANILA." On the same date ABALLE purchased postal money orders in
the amounts of P500 and P20 in payment of the appeal fees and filed them with the
MTCC, which the latter transmitted to the Commission on Elections. However, in the
letter of 4 September 1998 (id., 146), Records Officer IV Miguel T. Varquez, Jr. of the
Electoral Contests Adjudication Department of the Commission on Elections returned
these money orders for having become stale and directed ABALLE to replace them
within three days.

On 26 January 1998, BESO filed with the MTCC a motion for execution pending appeal
dated 23 January 1998 (id., 45).

ABALLE sought to inhibit judge Filemon A. Tandinco, Jr. of MTCC (id., 48); however,
the motion was denied in the order of 2 March 1998 (id., 67).

On 5 March 1998, the MTCC, handed down a Resolution (id., 69) granting the motion
for execution pending appeal and decreeing as follows: nigel

WHEREFORE and by the foregoing applicable Laws, Rules and

Jurisprudence hereby upholds and approve the Motion for Execution
pending appeal. Further, finding good reasons hereof directs and
orders immediate execution of the Decision of this Court
promulgated on January 20, 1998, and as prayed for install Vito Beso
as the duly elected Chairman of Barangay Carayman, Calbayog City,
to take his oath of Oath of Office assume as such Chairman after he
shall have filed a bond in the amount of ONE HUNDRED
THOUSAND (P100,000.00) in such sufficient sureties subject to
approval by this Court.

Furnish copy of this Resolution: The City Mayor, Calbayog City, The
Secretary, Department of Interior and Local Government, Metro
Manila, The Commission on Elections, Manila and Calbayog City,
Atty. Eduardo Tibo and Atty. Artemio Apostol.

ABALLE filed a motion to reconsider (id., 77) the Resolution, which the MTCC denied
in its Resolution of 21 April 1998 (id., 87). ella

90
On 24 April 1998, ABALLE filed with the Regional Trial Court of Calbayog City
(hereafter RTC) a special civil action for certiorari and prohibition, with an urgent prayer
for the issuance of a temporary restraining order or writ of preliminary injunction (id., 91)
against MTCC Judge Tandinco, Jr. to set aside and annul the latters order of 2 March
1998 denying the motion for inhibition; resolution of 5 March 1998 granting the motion
for execution pending appeal; and the resolution of 21 April 1998 denying the motion to
reconsider the resolution of 5 March 1998. BESO was impleaded as co-respondent. The
case was assigned to Branch 31 of the RTC, presided over by public respondent Judge
Roberto A. Navidad, and was docketed as Special Civil Action No. 98-040.

On 28 April 1998, Judge Navidad issued a Temporary Restraining Order (id., 104)
restraining respondent Judge Tandinco, Jr. and all persons acting in his behalf "from
enforcing the Writ of Execution Pending Appeal." The temporary restraining order was
"effective within 72 hours only from its issuance." marinella

On 28 April 1998, BESO filed a comment (id., 100) to ABALLEs petition

for certiorari and prohibition alleging therein that pursuant to Section 1 of Rule 28 of the
COMELEC Rules of Procedure and our decision in Relampagos v. Cumba, et al. (243
SCRA 690 [1995]), the Commission on Elections, and not the Regional Trial Court has
jurisdiction over the petition. ABALLE filed a reply to the comment (id., 105).

Then, on 29 April 1998, Judge Navidad issued an Order (id., 108) directing the parties to
submit their respective memoranda, after which the matter would be deemed submitted
for resolution. He also issued a temporary restraining order.

BESO filed his Memorandum on 4 May 1998 (id., 109).

On 4 May 1998, Judge Navidad issued an Order extending the Temporary Restraining
Order "for twenty (20) days."

On 2 June 1998 ABALLE filed her Memorandum.

On 8 June 1998, the RTC, per Judge Navidad rendered a decision (id., 123) in favor of
ABALLE, disposing thus:

WHEREFORE, premises considered, the Petition is GIVEN DUE

COURSE. The writ of execution pending appeal issued by the court a
quo in Election Protest No. 130 is hereby SET ASIDE and
VACATED while the Temporary Restraining Order issued by this
Court is consequently made PERMANENT. alonzo

In support thereof, the RTC held that the MTCC already lost its jurisdiction when it
issued the challenged resolutions. Under Section 3 of Rule 22 of the COMELEC Rules of

91
Procedure, appeals to the COMELEC in election protest cases should be made within five
(5) days from the promulgation of the decision. In this case, the decision of the MTCC
was promulgated on 20 January 1998; ABALLE had until 25 January 1998 within which
to appeal from the decision. She perfected her appeal on 22 January 1998. The motion for
execution pending appeal was filed only on 26 January 1998. Consequently, the court had
already lost jurisdiction to issue the writ of execution pending appeal.

BESOs motion for reconsideration (id., 127) was denied by the RTC in its Order of 14
July 1998 (id., 129). brando

On 28 August 1998, we received BESOs petition in this case, which he sent via
registered mail on 7 August 1998. He asserts in his petition that respondent Judge
Navidad acted without jurisdiction in issuing the (1) orders of: (a) 28 April 1998,
granting a temporary restraining order, effective within 72 hours from its issuance, (b) 29
April 1998 granting a temporary restraining order, (c) 4 May 1998 extending the
temporary restraining order for 20 days; (2) decision of 8 June 1998; and (3) order of 14
July 1998 denying the motion to reconsider the decision. BESO then prays that these
orders and decision be declared null and void.

In the meantime, on 4 September 1998 the Electoral Contest Adjudication Department of

the Commission on Elections (COMELEC) received the records of Election Protest No.
130 from the MTCC as a consequence of the appeal interposed by ABALLE. The
COMELEC docketed the appealed case as EAC No. 95-98.

In the resolution of 7 September 1999, we required ABALLE and Judge Navidad to

comment on the petition.

On 9 October 1998 we received ABALLEs comment. She narrates therein the foregoing
factual antecedents up to the denial of the motion to reconsider the resolution granting the
motion for execution pending appeal and added that the "entire records of Election
Protest No. 130 entitled Vito Beso v. Rita Aballe including the ballot box and the exhibits
presented during the trial was held in the custody of the Clerk of Court of the Municipal
Trial Court in Cities, Calbayog City since January 1998 and up to August 26, 1998,"
which therefore, made it impractical, if not impossible, for her to file the petition
for certiorari with the COMELEC. micks

Respondent Judge Navidad sent his comment, under heading COMPLIANCE (id., 168),
on 29 October 1998. He alleges therein that the special civil action filed with his court by
ABALLE was an original or independent action to remedy errors of jurisdiction
committed by the MTCC, and not a continuation or part of the trial of the parties election
case.

The petition is meritorious.

92
Since ABALLE has appealed to the COMELEC from the decision in Election Protest
Case No. 30 of the MTCC, by filing a Notice of Appeal on 22 January 1998, and
submitting at the same time the postal money orders for the appeal fees, it follows that
the COMELEC has primary jurisdiction on the petition for certiorari to annul the
execution pending appeal granted by the MTCC. This is an issue which we resolved
in Relampagos v. Cumba, et al. (243 SCRA 690 [1995]). nigella

We ruled in Relampagos that the last paragraph of Section 50 of B.P. Blg. 697 remains in
full force and effect in such cases where, under paragraph (2), Section 1 (should be
Section 2) Article IX-C of the Constitution, the COMELEC has exclusive appellate
jurisdiction over the election contest in question. In such cases the COMELEC has the
authority to issue the extraordinary writs of certiorari, prohibition and mandamus in aid
of its appellate jurisdiction. The last paragraph of Section 50 reads:

The Commission is hereby vested with exclusive authority to hear

and decide petitions for certiorari, prohibition
and mandamus involving election cases.

Under the second paragraph of Section 2 of Article IX-C of the Constitution, the
Commission on Elections has exclusive appellate jurisdiction over, inter alia, contests
involving elective barangay officials decided by trial courts of limited jurisdiction.

The contested position in this case is that of a barangay captain. The Municipal Trial
Court of Calbayog City, a court of limited jurisdiction, had the exclusive original
jurisdiction over the election protest, and the COMELEC has the exclusive appellate
jurisdiction over such protest. Sc

It follows then that the RTC of Calbayog City is without jurisdiction on the petition
for certiorari and prohibition which ABALLE filed to annul the execution pending
appeal the MTCC had issued in the election protest case. ABALLE should have gone to
the COMELEC and her allegation that it was impossible for her to have invoked the
power of the COMELEC to issue the writ because the records of the Election Protest No.
130 were forwarded to the COMELEC only in August 1998 merits no sympathy as
certified copies of the challenged resolutions or orders could easily be obtained and
attached to the petition.

Clearly respondent Judge Navidad acted without jurisdiction, and with grave abuse of
discretion amounting to lack of jurisdiction when he entertained the petition in Special
Civil Action No. 98-040, issued a Temporary Restraining Order thereon and, ultimately,
giving due course to the petition and deciding it on its merits by setting aside and
vacating the assailed resolutions and orders of the MTCC of Calbayog City in Election
Protest No. 130 and making permanent the temporary restraining order earlier issued.

93
Further, respondent Judge Navidad gravely abused his discretion when he extended by
twenty days the 72-hour restraining order he initially issued. The second paragraph of
Section 5 of Rule 5 of the 1997 Rules of Civil Procedure clearly provides that "in no case
shall the total period of effectivity of the temporary restraining order exceed twenty (20)
days, including the original seventy-two hours provided herein." Scmis

WHEREFORE, the instant petition is GRANTED and the challenged orders of

respondent Judge Roberto A. Navidad in Special Action No. 98-040 (or 040) of Branch
31 of the Regional Trial Court of Calbayog City of 28 April 1998 granting a temporary
restraining order within seventy-two hours; 29 April 1998 granting a temporary
restraining order without specification of the period; 4 May 1998 extending the
temporary restraining order for twenty (20) days; and the decision of 8 June 1998, as well
as the order of 14 July 1998 denying the motion to reconsider the decision are hereby set
aside and nullified for having been issued without jurisdiction or with grave abuse of
discretion amounting to lack of jurisdiction.

Respondent Judge Roberto A. Navidad is further ordered to DISMISS Special Action No.
98-040 (or 040) within seventy-two hours (72) hours upon receipt of a copy of this
decision.

Costs against private respondent. Mis sc

SO ORDERED.

94
 EN BANC

[G.R. No. 135869. September 22, 1999]

RUSTICO H. ANTONIO, petitioner, vs. COMMISSION ON ELECTIONS and

VICENTE T. MIRANDA, JR., respondents.

DECISION
GONZAGA_REYES, J.:

Is the period to appeal a decision of a municipal trial court to the Commission on

Elections (COMELEC) in an election protest involving a barangay position five (5) days
per COMELEC Rules of Procedure or ten (10) days as provided for in Republic Act
6679[1] and the Omnibus Election Code? This is the sole issue posed in the instant petition
for certiorari under Rule 65 of the 1997 Rules of Civil Procedure seeking to annul the order
dated August 3, 1998 of the Second Division of the COMELEC, [2] dismissing the appeal
of petitioner Rustico Antonio for having been filed out of time pursuant to COMELEC
Rules of Procedure, and the order promulgated on October 14, 1998 of the COMELEC en
banc, denying petitioners motion for reconsideration.
The antecedents as found by the COMELEC in the order dated October 14, 1998 are:

The parties in this case were rival candidates for the Punong Barangay of Barangay Ilaya,
Las Pias City, Metro Manila. After the board of canvassers proclaimed protestee-
appellant Rustico Antonio, protestant-appellee Vicente T. Miranda, Jr. filed an election
protest docketed as Election Protest Case No. 97-0017 against Antonio before the
Metropolitan Trial Court of Las Pias City (Branch LXXIX). The trial court rendered
a Decision dated 9 March 1998, the dispositive portion of which states:

WHEREFORE, the Court declares the protestant Vicente Miranda as the duly elected
Barangay Chairman of Barangay Ilaya, Las Pias City, Metro Manila.

Antonio admitted receipt of the above-quoted decision on 18 March 1998. Subsequently,

Antonio filed a Notice of Appeal with the trial court on 27 March 1998 or nine (9) days
after receipt thereof.Meanwhile, Miranda moved to execute the trial courts
decision. Rustico, in his Opposition to the Motion for Execution or Execution Pending
Appeal, argued against Mirandas motion for execution. After the trial court denied the
motion for execution, the records of this case was forwarded to the Commission (Second
Division).

95
On 10 August 1998, protestee-appellant Rustico Antonio received from this Commission
(Second Division) an Order dated 3 August 1998 stating as follows:

In the light of the aforequoted rules, protestee RUSTICO ANTONIO, failed to perfect his
appeal within the five (5) days period prescribed for perfecting his appeal, as he filed his
Notice of Appeal only on March 27, 1998 or nine (9) days after receipt of the decision
sought to be appealed.

The Period aforestated is jurisdictional and failure of the protestee to perfect his appeal
within the said period deprives the Commission of its appellate jurisdiction.

ACCORDINGLY, the instant appeal is hereby DISMISSED for lack of jurisdiction.

Hence, this motion for reconsideration.

The instant Motion for Reconsideration is DENIED and We AFFIRM the Order dated 3
August 1998 of this Commission (Second Division).[3]

In the instant petition for certiorari, petitioner argues that the COMELEC committed
grave abuse of discretion amounting to lack of jurisdiction when it dismissed the appeal
for the following reasons:
(a) In barangay electoral protest cases, the period of appeal is ten (10) days
from receipt of the decision of the Metropolitan or Municipal Trial
Court. This is provided for by Sec. 9 of R.A. 6679 and Sec. 252 of the
Omnibus Election Code
(b) The provisions of Sec. 21, Rule 37 of the COMELEC Rules of Procedure
providing for a five-day period within which to appeal from the decision
of the Metropolitan or Municipal Trial Court could not prevail upon the
express provisions of Rep. Act No. 6679 and Sec. 252 of the Omnibus
Election Code;
(c) Moreover, the COMELEC committed an error of jurisdiction when it
disregarded the provisions of Sections 5,6 & 7, Rule 22 of the COMELEC
Rules of Procedure requiring the filing of briefs by the appellant and the
appellee. The questioned resolution of August 3, 1998 was issued motu
propio and without prior notice and hearing. The petitioner was fast
tracked;
(d) The alleged winning margin of the private respondent over the petitioner
as found by the Metropolitan Trial Court of Las Pias is only four (4) votes
the results being MIRANDA 1,171; ANTONIO 1,167. The peoples will
must not go on procedural points. An election protest involves public
interest, and technicalities should not be sanctioned when it will be an

96
 obstacle in the determination of the true will of the electorate in the choice
of its public officials. [Macasundig vs. Macalanagan, 13 SCRA 577; Vda.
De Mesa vs. Mensias, 18 SCRA 533; Juliano vs. Court of Appeals, 20
SCRA 808; Genete vs. Archangel, 21 SCRA 1178; Maliwanag vs. Herrera,
25 SCRA 175; De Castro vs. Genete, 27 SCRA 623]
(e) The questioned resolutions violated the above principle because the
COMELEC did not appreciate the contested ballots.[4]
In dismissing the appeal, the COMELEC relied on Section 21, Rule 35 of the
COMELEC Rules of Procedure which reads:

SEC. 21. Appeal From any decision rendered by the court, the aggrieved party may
appeal to the Commission on Elections within five (5) days after the promulgation of the
decision.

On the other hand, petitioner contends that the period of appeal from decisions of the
Municipal Trial Courts or Metropolitan Trial Courts involving barangay officials is
governed by Section 9 of Republic Act 6679 and Section 252 of the Omnibus Election
Code.
Section 9 of Republic Act 6679 reads:

SEC. 9. A sworn petition contesting the election of a barangay official may 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 a barangay office within ten (10) days
after the proclamation of the results of the election. The trial court shall decide the
election protest within thirty (30) days after the filing thereof. The decision of the
municipal or metropolitan trial court may be appealed within ten (10) days from receipt
of a copy thereof by the aggrieved party to the regional trial court which shall decide the
issue within thirty (30) days from receipt of the appeal and whose decision on questions
of fact shall be final and non-appealable. For purposes of the barangay elections, no pre-
proclamation cases shall be allowed.

Similarly, Section 252 of the Omnibus Election Code provides:

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. The trial
court shall decide the election protest within fifteen days after the filing thereof. The
decision of the municipal or metropolitan trial court may be appealed within ten days
from receipt of a copy thereof by the aggrieved party to the regional trial court which
shall decide the case within thirty days from its submission, and whose decisions shall be
final.

97
 In applying Section 21 of the COMELEC Rules of Procedure rather than Section 9
of Republic Act 6779 and Section 252 of the Omnibus Election Code, the COMELEC
rationalized thus:

Antonio asserts that Section 9 of Republic Act 6679 and Section 252 of the Omnibus
Election Code providing for a ten-day period to appeal prevails over the provisions of the
COMELEC Rules of Procedure.According to Antonio, quasi-judicial bodies, including
this Commission, cannot amend an act of Congress and in case of discrepancy between
the basic law and an interpretative or administrative ruling, the former
prevails. Generally, yes. But the situation herein does not fall within the generic situation
contemplated therein.

No less than the 1987 Constitution (Article IX-A, Section 6 and Article IX-C, Section 3)
grants and authorizes this Commission to promulgate its own rules of procedure as long
as such rules concerning pleadings and practice do not diminish, increase or modify
substantive rights. Hence, the COMELEC Rules of Procedure promulgated in 1993 as
amended in 1994 is no ordinary interpretative or administrative ruling. It is promulgated
by this Commission pursuant to a constitutionally mandated authority which no
legislative enactment can amend, revise or repeal.

The COMELEC Rules of Procedure (Rule 37 Section 21) provides that from the decision
rendered by the court, the aggrieved party may appeal to the Commission on
Elections within five (5) days after the promulgation of the decision. Rule 22 Section 9
(d) of Our Rules of Procedure further provides that an appeal from decisions of courts in
election protest cases may be dismissed at the instance of the Commission for failure to
file the required notice of appeal within the prescribed period.

In case at bar, Antonio filed his notice of appeal before the trial court on the ninth (9) day
from receipt of the decision appealed from or four (4) days after the five-day prescribed
period to appeal lapsed.Therefore, the present appeal must be dismissed. For it is
axiomatic that the perfection of an appeal in the manner and within the period laid down
by the COMELEC Rules of Procedure is not only mandatory but also jurisdictional. As a
consequence, the failure to perfect an appeal within the prescribed period as required by
the Rules has the effect of defeating the right of appeal of a party and precluding the
appellate court from acquiring jurisdiction over the case. So the High Court rules
in Villanueva vs. Court of Appeals, et.al. (205 SCRA 537). And so, it should also be in
the case at bar.

Worth noting is that Our Rules of Procedure may be amended, revised or repealed
pursuant to the 1987 Constitution (Article VIII Section 5[5]) providing that rules of
procedure of quasi-judicial bodies shall remain effective unless disapproved by the
Supreme Court. But far from being disapproved the COMELEC Rules of Procedure
received approbation and has constantly been cited by the Supreme Court in a number of
decisions such as in the case of Pahilan vs. Tabalba (230 SCRA 205, at 211)

98
and Rodillas vs. Commission on Elections (245 SCRA 702, at 704). In the more recent
case of Calucag vs. Commission on Elections promulgated on 19 June 1997 (G.R. N.o
123673), the Supreme Court stated that:

Therefore, the COMELEC is the proper appellate court clothed with jurisdiction to hear
the appeal WHICH APPEAL MUST BE FILED WITHIN FIVE DAYS AFTER THE
PROMULGATION OF THE MTC DECISION(page 4-5).

The repeated recognition given by the Supreme Court of this five-day rule within which
to file the required notice of appeal will make questionable the legislative enactment
providing for a ten-day period.[5]

Without adopting the foregoing ratiocination of the COMELEC, we nonetheless find

the instant petition devoid of merit.
It is beyond cavil that legislative enactments prevail over rules of procedure
promulgated by administrative or quasi-judicial bodies and that rules of procedure should
be consistent with standing legislative enactments. In relation to the above-quoted Section
9 of Republic Act 6679 and Section 252 of the Omnibus Election Code, petitioner points
out that in Flores vs. Commission on Elections[6], this Court had declared that decisions of
the Metropolitan or Municipal Court in election protest cases involving barangay officials
are no longer appealable to the Regional Trial Court but to the COMELEC pursuant to
Section 2(2) of Article IX-C of the 1987 Constitution.[7] Petitioner submits that the
dispositive portion in the Flores case only declared unconstitutional that portion of Section
9 of Republic Act 6679 providing for appeal to the Regional Trial Court but not the ten
(10) day period of appeal. The dispositive portion of the Flores case reads:

1. Declaring Section 9 of Rep. Act No. 6679 UNCONSTITUTIONAL insofar as it

provides that barangay election contests decided by the municipal or metropolitan trial
court shall be appealable to the regional trial court:

Petitioner admits that the provisions in Republic Act No. 6679 and for that matter the
Omnibus Election Code providing for appellate jurisdiction to the Regional Trial Court
had been declared unconstitutional in the aforecited Flores case. A verbatim comparison
of both provisions reveals that they provide the same remedy, that is, appeal from a decision
of the municipal or metropolitan trial court in barangay election cases to the regional trial
court. Both provisions provide that (1) results of a barangay election may be contested by
filing a sworn petition with the municipal trial court within ten days from proclamation;
(2) the MTC shall decide within thirty days per Republic Act No. 6679 or fifteen days per
Omnibus Election Code; and (3) the decision of the municipal trial court may be appealed
to the regional trial court within ten days from receipt by the aggrieved party, which
decision is final and non-appealable. There is no appreciable basis to make a distinction
between the two provisions, except for their different numbers, to advance that they provide
for two different remedies. It would be superfluous to insist on a categorical declaration of

99
the unconstitutionality of the appeal provided for in Sec. 252 of the Omnibus Election
Code, as the same appeal in Sec. 9, Republic Act No. 6679 had already been categorically
declared unconstitutional. Further, Sec. 252 of the Omnibus Election Code[8] as amended
by the new law, Republic Act No. 6679[9], has in effect, been superseded by the
latter. While the appellate procedure has been retained by the amendatory act, Republic
Act No. 6679 nonetheless supersedes the verbatim provision in the Omnibus Election
Code. Hence, it was not necessary for Flores to mention Sec. 252 of the Omnibus Election
Code, considering that as aforestated, Section 9 of Republic Act No. 6679 was a mere
reenactment of the former law.
Petitioner is of the opinion, though, that the unconstitutionality extended only as to
which court has appellate jurisdiction without affecting the period within which to
appeal. According to petitioner, only the portion providing for the appellate jurisdiction of
the Regional Trial Court in said cases should be deemed unconstitutional. The rest of the
provisions, particularly on the period to appeal, free from the taint of unconstitutionality,
should remain in force and effect in view of the separability clauses contained in Republic
Act 6779[10] and the Omnibus Election Code.[11]
We do not agree.
First, petitioners argument raises the presumption that the period to appeal can be
severed from the remedy or the appeal itself which is provided in Section 9, Republic Act
6679 and survive on its own.The presumption cannot be sustained because the period to
appeal is an essential characteristic and wholly dependent on the remedy.
Aptly, the rules on statutory construction prescribe:

The general rule is that where part of a statute is void as repugnant to the Constitution,
while another part is valid, the valid portion, if separable from the invalid, may stand and
be enforced. The presence of a separability clause in a statute creates the presumption
that the legislature intended separability, rather than complete nullity, of the statute. To
justify this result, the valid portion must be so far independent of the invalid portion that
it is fair to presume that the legislature would have enacted it by itself if it had supposed
that it could not constitutionally enact the other. Enough must remain to make a
complete, intelligible, and valid statute, which carries out the legislative intent. The void
provisions must be eliminated without causing results affecting the main purpose of the
act in a manner contrary to the intention of the legislature. The language used in the
invalid part of the statute can have no legal effect or efficacy for any purpose whatsoever,
and what remains must express the legislative will independently of the void part, since
the court has no power to legislate.

The exception to the general rule is that when the parts of a statute are so mutually
dependent and connected, as conditions, considerations, inducements, or compensations
for each other, as to warrant a belief that the legislature intended them as a whole the
nullity of one part will vitiate the rest. In making the parts of the statute dependent,
conditional, or connected with one another, the legislature intended the statute to be

100
carried out as a whole and would not have enacted it if one part is void, in which case if
some parts are unconstitutional, all the other provisions thus dependent, conditional, or
connected must fall with them.[12]

In the instant petition, the exception applies. Section 9 of Republic Act No. 6679 and
Section 252 of the Omnibus Election Code, without the constitutionally infirm portion on
the appellate jurisdiction of Regional Trial Courts in barangay election protest cases, does
not remain complete in itself, sensible, capable of being executed and wholly independent
of the portion which was rejected. In other words, with the elimination of the forum, the
period cannot stand on its own. Moreover, when this Court stated that Section 9 of Rep.
Act No. 6679 is declared unconstitutional insofar as it provides that barangay election
contests decided by the municipal or metropolitan trial court shall be appealable to the
regional trial court, it meant to preserve the first two sentences on the original jurisdiction
of municipal and metropolitan trial courts to try barangay election protests cases but not,
as advanced by the petitioner, the ten-day period to appeal to the Regional Trial Court. This
is the logical and sound interpretation of subject portion of the Flores case.
Second, what was invalidated by the Flores case was the whole appeal itself and not
just the question of which court to file the petition. If the remedy itself is declared
unconstitutional how could the period to appeal possibly survive? How could the time limit
exist if there is nothing to be done within such time?
Third, we cannot indulge in the assumption that Congress still intended, by the said
laws, to maintain the ten (10) day period to appeal despite the declaration of
unconstitutionality of the appellate jurisdiction of the regional trial court, Republic Act No.
7166[13] amending the Omnibus Election Code, evinces the intent of our lawmakers to
expedite the remedial aspect of election controversies. The law was approved on November
26, 1991, after the Flores case which was promulgated on April 20,1990, and presumably,
the legislature in enacting the same was cognizant of the ruling in Flores. Said law provides
the same five (5) day period to appeal decisions of the trial court in election contests for
municipal officers to the COMELEC. Section 22 thereof reads:

Sec. 22. Election Contests for Municipal Officers. All election contests involving
municipal offices filed with the Regional Trial Court shall be decided expeditiously. The
decision may be appealed to the Commission within five (5) days from promulgation or
receipt of a copy thereof by the aggrieved party. The Commission shall decide the appeal
within sixty (60) days after it is submitted for decision, but not later than six (6) months
after the filing of the appeal, which decision shall be final, unappealable and executory.

There would be no logic nor reason in ruling that a longer period to appeal to the
COMELEC should apply to election contests for barangay officials.
Fourth, since the whole remedy was invalidated, a void was created. Thus, the
COMELEC had to come in and provide for a new appeal in accordance with the mandate
of the Constitution. As correctly pointed out by the COMELEC, Section 6, Article IX-
A[14] of the 1987 Constitution grants and authorizes the COMELEC to promulgate its own

101
rules of procedure. The 1993 COMELEC Rules of Procedure have provided a uniform five
(5) day period for taking an appeal[15] consistent with the expeditious resolution of election-
related cases. It would be absurd and therefore not clearly intended, to maintain the 10-day
period for barangay election contests. Hence, Section 3, Rule 22 of the COMELEC Rules
of Procedure is not in conflict with any existing law. To adopt a contrary view would defeat
the laudable objective of providing a uniform period of appeal and defy the COMELECs
constitutional mandate to enact rules of procedure to expedite disposition of election cases.
In view of the Flores case, jurisprudence has consistently recognized that the
COMELEC Rules of Procedure are controlling in election protests heard by a regional trial
court.[16] The Court en banc has held in Rodillas vs. COMELEC[17] that the procedure for
perfecting an appeal from the decision of the Municipal Trial Court in a barangay election
protest case is set forth in the COMELEC Rules of Procedure. More recently, in Calucag
vs. Commission on Elections[18], the Court en banc had occasion to state that:

It follows that after the promulgation of Flores, the same arguments propounded therein
by the petitioner may no longer be employed. Article 8 of the Civil Code states that
(j)udicial decisions applying or interpreting the laws or the constitution shall form part of
the legal system of the Philippines. Said pronouncement of the Court, having formed part
of the law of the land, ignorance thereof can no longer be countenanced. Therefore, the
COMELEC is the proper appellate court clothed with jurisdiction to hear the
appeal, which appeal must be filed within five days after the promulgation of the
MTCs decision. The erroneous filing of the appeal with the RTC did not toll the running
of the prescriptive period. xxx. The five-day period having expired without the aggrieved
party filing the appropriate appeal before the COMELEC, the statutory privilege of
petitioner to appeal is deemed waived and the appealed decisions has become final and
executory.

Significantly, Section 5(5), Article VIII of the Constitution provides in part that
[r]ules of procedure of special courts and quasi-judicial bodies shall remain effective unless
disapproved by the Supreme Court.
Equally devoid of merit is the contention that petitioner was fast tracked because the
COMELEC did not require the parties to file their appeal briefs; that the dismissal was
issued motu proprio without prior notice and hearing; and that dismissal of the appeal
defeats the peoples will on procedural points. Suffice it to state that the period for filing an
appeal is by no means a mere technicality of law or procedure. It is an essential requirement
without which the decision appealed from would become final and executory as if no
appeal was filed at all. The right of appeal is merely a statutory privilege and may be
exercised only in the manner prescribed by, and in accordance with, the provisions of the
law.[19] Further, by virtue of Section 9 (d), Rule 22 of the COMELEC Rules of Procedure
which provides that an appeal may be dismissed upon motion of either party or at the
instance of the Commission for failure to file a notice of appeal within the prescribed
period, the COMELEC is precisely given the discretion, in a case where the appeal is not
filed on time to dismiss the action or proceeding.

102
 The COMELEC, therefore, did not commit an abuse of discretion in dismissing the
appeal.
WHEREFORE, the instant petition for certiorari is hereby DISMISSED for lack of
merit. The assailed orders of the Commission on Elections dated August 3, 1998 and
October 14, 1998 are hereby AFFIRMED.
SO ORDERED.

103
 EN BANC

[A.M. No. MTJ-99-1178. March 3, 1999]

COMMISSION ON ELECTIONS, complainant, vs. JUDGE BUCO R. DATU-IMAN,

Municipal Circuit Trial Court, Bayang, Lanao del Sur, respondent.

DECISION
MENDOZA, J.:

This complaint was filed by the Commission on Elections (COMELEC) against

respondent Judge Buco R. Datu-Imam of the Fifth Municipal Circuit Trial Court of
Bayang-Tubaran-Binidiyan-Butig-Lambatan-Marogong-Lumbayanagui (hereinafter
referred to as Municipal Circuit Trial Court of Bayang), Lanao del Sur, [1] for gross
ignorance of the law for enjoining enforcement of a COMELEC directive issued in
connection with the barangay elections of May 9, 1994 in Bayang, Lanao del Sur.
It appears that, on March 29 and 31, 1994, the Commission on Elections sent
telegrams to election officials in Lanao del Sur ordering them to delete Barangay Sumbago
from the list of barangays in the Municipality of Bayang on the ground that it had not been
legally created. Accordingly, the officials refused to accept for filing certificates of
candidacy of those seeking office in Barangay Sumbago in the May 9, 1994 barangay
elections. However, barangay officials seeking reelection brought suit (Civil Case No. 08-
BA, Monadi, et al. v. Commission on Elections) in the Fifth Municipal Circuit Trial Court
of Bayang to stop implementation of the COMELEC directive.
Respondent, who had been designated acting judge of that court, issued a temporary
restraining order on April 9, 1994 and, after hearing, rendered a decision on May 2, 1994
granting injunction. He held that a mere telegram order of the COMELEC cannot prevail
over Executive Order No. 108, dated December 24, 1986, of then President Corazon C.
Aquino which listed Sumbago among the barangays duly created in Region XII.
By virtue of the temporary restraining order of respondent judge, the Election Officer
of Bayang, Lanao del Sur allowed the filing of certificates of candidacy for barangay
positions in Sumbago.However, upon being informed of the issuance of the order, the
COMELEC issued Resolution No. 94-2947, dated May 17, 1994, directing election
officials to disregard the temporary restraining order and delete Barangay Sumbago from
the list of barangays in the Municipality of Bayang, Lanao del Sur, as previously
ordered. At the same time, the COMELEC referred the present case to this Court for
appropriate [disciplinary] action against respondent. The COMELEC contended that, in

104
taking cognizance of the case, respondent showed patent ignorance of the law because he
had no power to issue an injunction against the COMELEC, especially considering the
status and rank of the issuing court in relation to that of the COMELEC. [2]
On the other hand, respondent claimed in his comment that he issued the temporary
restraining order in good faith on the basis of certifications that Barangay Sumbago had
been given internal revenue allotments by the Department of Budget and Management and
had been recognized by the DILG ARMM, Provincial DILG, Municipal DILG, and DBM
Cotabato City. He claimed that he issued the injunction in question lest the residents of
Barangay Sumbago be deprived of their right of self-government considering that it was
the last day for the filing of certificates of candidacy and that there were ill-motivated
persons who attempted to sow confusion and disorder in the barangay using the
[COMELEC] telegram as a tool.
In its memorandum, dated January 26, 1999, the Office of the Court Administrator
(OCA) recommends that the complaint against respondent judge be dismissed and that
instead he simply be admonished to be more circumspect in the performance of his duties.
It appears that respondent compulsorily retired on December 7, 1998 from the
service. He prays that a clearance be issued to him so that he can collect his retirement
benefits, less any amount which the Court may deem just, right, equitable, and
reasonable. He states that he is in dire need of the money for his medical care and for the
educational expenses of his family.
The issue in this case is whether respondent judge is liable for gross ignorance of the
law for issuing an injunction against the COMELEC. We think he is, although, as will
presently be explained, there are mitigating factors which should be considered in his favor.
First of all, as already pointed out in a 1968 dictum,[3] because of their subordinate
status and rank vis-a-vis the COMELEC, lower courts cannot issue writs of injunction
enforceable against the COMELEC. More importantly, respondent ought to have known
that, since its creation, the COMELEC has been accorded full discretion given its
constitutional mandate to enforce and administer all laws relative to the conduct of election,
plebiscite, initiative, referendum, and recall.[4] This was stressed in the decision of this
Court in Zaldivar v. Estenzo.[5] Quoting from its prior decisions, this Court held:

In the discharge of its functions, it should not be hampered with restrictions that would be
fully warranted in the case of a less responsible organization. The Commission may err,
so may this court also. It should be allowed considerable latitude in devising means and
methods that will insure the accomplishment of the great objective for which it was
created free, orderly and honest elections.

....

[I]t is easy to understand why no interference whatsoever with the performance of the
Commission on Elections of its functions should be allowed unless emanating from this

105
Court. The observation of Acting Chief Justice J.B.L. Reyes in Albano v. Arranz [4
SCRA 386 (1962)], while not precisely in point, indicates the proper approach. Thus: It is
easy to realize the chaos that would ensue if the Court of First Instance of each and every
province were to arrogate unto itself the power to disregard, suspend, or contradict any
order of the Commission on Elections; that constitutional body would be speedily
reduced to impotence.[6]

It is imperative that judges be conversant with basic legal principles.[7] Indeed, the Code of
Judicial Conduct enjoins judges to be faithful to the law and maintain professional
competence.[8]
However, respondents liability is somewhat mitigated by the fact that, as found by
the OCA,

Respondent judge acted on the basis of the documentary evidence presented before him
which he considered valid justification in taking cognizance of the case. These
documents are Executive Order No. 108 retaining Sumbago as a barangay, and records
from the DILG/ARMM, Provincial DILG, Municipal DILG and DBM showing that
barangay Sumbago is an existing barangay. In fact, it has been funded by the DBM since
1993 with Bank Account No. 1262-1043-18.

Nor was the COMELEC without fault. As respondent pointed out in his decision,
dated May 2, 1994, no representative of the COMELEC (the Provincial Election Officer
and the Municipal Election Officer of Bayang, Lanao del Sur, who were named
respondents in the case) appeared at any of the hearings set on April 21, 1994, April 26,
1994, and April 29, 1994 despite notice. It appears that no opposition to the petition for
injunction was ever filed by the COMELEC. With respect to the first hearing on April 21,
1994, the record shows that the local election officers notified the COMELEC head office
in Manila only on April 25, 1994. Upon being advised of the issuance of the TRO and the
hearing on the writ of injunction, the COMELEC apparently did nothing except to tell its
provincial officials to disregard the TRO and to delete Sumbago from the masterlist of
barangays as previously ordered. The COMELEC could have filed an opposition and
thereby save respondent from committing the error of issuing an injunction. It could have
instituted certiorari proceedings in this Court to annul the proceedings conducted by
respondent in Civil Case No. 08-BA and thus forestall the rendition of judgment against it.
For, although respondent was presumed to know the constitutional limits of his
authority, parties too have a responsibility to bring before him arguments and evidence for
his consideration in the decision of the case. For the failure of the COMELEC to do so,
respondent judge was deprived of the benefit of an adversary proceeding. Jeremy Bentham
in effect described the relationship between the judge and counsel when he insisted that the
law is not made by judge alone but by Judge and Company.
Finally, in assessing the liability of respondent, account should be made of the fact
that this appears to be his first administrative case in his entire judicial career which
spanned thirteen years.[9]

106
 The Office of the Court Administrator recommends that respondent be simply
admonished. We would agree with this recommendation in light of the mitigating factors
above stated. However, inasmuch as respondent is now retired, an admonition would have
no practical effect. A fine of P1,000.00 would seem to be the more appropriate penalty
under the circumstances.[10]
WHEREFORE, the Court finds respondent Judge Buco R. Datu-Imam of the Fifth
Municipal Circuit Trial Court of Bayang-Tubaran-Binidiyan-Butig-Lambatan-Marogong-
Lumbayanagui, Lanao del Sur GUILTY of gross ignorance of the law and IMPOSES on
him a FINE of P1,000.00 to be deducted from retirement benefits due him.
SO ORDERED.

107
 EN BANC

[G.R. No. 132603. September 18, 2000]

ELPIDIO M. SALVA, VILMA B. DE LEON, CLEMENTE M. MATIRA, REGION

P. DE LEON, MARILOU C. DE LEON, JAIME RELEVO, JOEY S.
VERGARA, CARMENCITA A. SALVA, DIONISIO B. DE LEON, JORGE
S. VERGARA, GORGONIO B. DE LEON, AND OTHERS TOO
NUMEROUS TO ENUMERATE AS A CLASS SUIT, petitioners, vs. HON.
ROBERTO L. MAKALINTAL, Presiding Judge, Regional Trial Court, Br.
XI, Balayan, Batangas; HON. SANGGUNIANG PANGLALAWIGAN OF
BATANGAS, BATANGAS CITY; HON. SANGGUNIANG PANGBAYAN,
CALACA, BATANGAS; and HON. COMMISSION ON
ELECTIONS, respondents.

DECISION
BUENA, J.:

This is an appeal by certiorari under Rule 45 of the Rules of Court seeking the
reversal of the Order dated February 25, 1998,[1] of the Regional Trial Court of Balayan,
Batangas, Branch XI,[2] in Civil Case No. 3442, denying the issuance of a temporary
restraining order and/or preliminary injunction to enjoin the Commission on Elections
(COMELEC) from holding the plebiscite scheduled on February 28, 1998, on the ground
of lack of jurisdiction.
The facts are undisputed.
On February 23, 1998, petitioners, as officials and residents of barangay San Rafael,
Calaca, Batangas, filed a class suit against the Sangguniang Panglalawigan of Batangas,
Sangguniang Pambayan of Calaca, Batangas, and the Commission on Elections
(COMELEC), docketed as Civil Case No. 3442, before the Regional Trial Court of
Balayan, Batangas, Branch XI, for annulment of Ordinance No. 05 and Resolution No.
345, series of 1997, both enacted by the Sangguniang Panglalawigan of Batangas, and
COMELEC Resolution No. 2987, series of 1998, with prayer for preliminary
injunction/temporary restraining order. Ordinance No. 05[3] declared the abolition of
barangay San Rafael and its merger with barangay Dacanlao, municipality of Calaca,
Batangas and accordingly instructed the COMELEC to conduct the required plebiscite as
provided under Sections 9 and 10 of Republic Act No. 7160, otherwise known as the Local
Government Code of 1991.[4] On the other hand, Resolution No. 345[5] affirmed the
effectivity of Ordinance No. 05, thereby overriding the veto [6] exercised by the governor

108
of Batangas.[7] Ordinance No. 05 was vetoed by the governor of Batangas for being ultra
vires, particularly, as it was not shown that the essential requirements under Section 9, in
relation to Section 7, of Republic Act No. 7160, referring to the attestations or certifications
of the Department of Finance (DOF), National Statistics Office (NSO) and the Land
Management Bureau of the Department of Environment and Natural Resources (DENR),
were obtained. Pursuant to the foregoing ordinance and resolution, on February 10, 1998,
the COMELEC promulgated Resolution No. 2987, providing for the rules and regulations
governing the conduct of the required plebiscite scheduled on February 28, 1998, to decide
the issue of the abolition of barangay San Rafael and its merger with barangay Dacanlao,
Calaca, Batangas.[8] Simultaneous with the filing of the action before the trial court,
petitioners also filed an ex parte motion for the issuance of a temporary restraining order
to enjoin respondents from enforcing Ordinance No. 05, Resolution No. 345, and
COMELEC Resolution No. 2987.
In an Order dated February 25, 1998, the trial court denied the ex parte motion for
the issuance of a temporary restraining order and/or preliminary injunction for lack of
jurisdiction.According to the trial court, the temporary restraining order/injunction sought
by petitioners is directed only to COMELEC Resolution No. 2987. The trial court ruled
that any petition or action questioning an act, resolution or decision of the COMELEC must
be brought before the Supreme Court.[9]
On February 27, 1998, petitioners filed the instant petition with prayer for a
temporary restraining order, without filing a motion for reconsideration of the trial courts
Order dated February 25, 1998, claiming the urgency or immediate necessity to enjoin the
conduct of the plebiscite scheduled on February 28, 1998.[10]
In a Resolution dated March 10, 1998, the Court directed the parties to maintain the
status quo prevailing at the time of the filing of the petition. [11]
On August 28, 1998, the Solicitor General filed a Manifestation and Motion in lieu
of Comment, declaring that he concurs with petitioners cause and recommending that the
instant petition be given due course.[12] Consequently, the Court further resolved on
September 29, 1998 to require the COMELEC and the Sangguniang Panglalawigan of
Batangas to submit their own Comment on the petition.
In a Resolution dated June 15, 1999, the Court resolved to give due course to the
petition and require the parties to submit their respective memoranda. [13]
In their Memorandum filed on October 26, 1999, petitioners submitted the following
issue for the resolution of this Court:

WHETHER OR NOT THE RESPONDENT COURT HAS JURISDICTION TO

ENJOIN THE COMELEC FROM IMPLEMENTING ITS RESOLUTION NO. 2987,
SERIES OF 1998, WHICH PROVIDED FOR THE RULES AND REGULATIONS FOR
THE CONDUCT OF THE PLEBISCITE SCHEDULED ON FEBRUARY 28, 1998 TO
DECIDE ON THE ABOLITION OF BARANGAY SAN RAFAEL AND ITS MERGER
WITH BARANGAY DACANLAO, CALACA, BATANGAS, PENDING THE

109
DETERMINATION OF CIVIL CASE NO. 3442 FOR THE ANNULMENT OF
ORDINANCE NO. 05, RESOLUTION NO. 345 AND COMELEC RESOLUTION NO.
2987.[14]

First, petitioners contend that the assailed Order dated February 25, 1998, of the
Regional Trial Court of Balayan, Batangas, Branch XI, encourages multiplicity of suit[s]
and splitting a single cause of action, contrary to Section 3, Rule 2, of the Rules of
Court.[15] Petitioners maintain that since COMELEC Resolution No. 2987 was only issued
pursuant to Ordinance No. 05 and Resolution No. 345 of the Sangguniang Panglalawigan
of Batangas, the propriety of the issuance of COMELEC Resolution No. 2987 is dependent
upon the validity of the Ordinance No. 05 and Resolution No. 345.[16] And considering that
the jurisdiction of the trial court to hear and determine the validity of Ordinance No. 05
and Resolution No. 345 is not disputed, the assailed Order dated February 25, 1998,
directing petitioners to seek the preliminary injunction and/or temporary restraining order
before this Court, advances multiplicity of suits and splitting a single cause of action.
Second, petitioners assert that when the COMELEC exercises its quasi-judicial
functions under Section 52 of the Omnibus Election Code (Batas Pambansa Blg. 881), its
acts are subject to the exclusive review by this Court; but when the COMELEC performs
a purely ministerial duty, such act is subject to scrutiny by the Regional Trial
Court,[17] citing Filipinas Engineering and Machine Shop vs. Ferrer (135 SCRA 25
[1985]), thus:

It cannot be gainsaid that the powers vested by the Constitution and the law on the
Commission on Elections may either be classifi1ed as those pertaining to its adjudicatory
or quasi-judicial functions, or those which are inherently administrative and sometimes
ministerial in character.[18]

Corollary thereto, petitioners submit that [t]he conduct of [a] plebiscite, pursuant to
Ordinance No. 05 and Resolution No. 345, is not adjudicatory [or quasi-judicial] in nature
but simply ministerial or administrative in nature [and only] in obedience to the aforesaid
Ordinance and Resolution, citing Garces vs. Court of Appeals, 259 SCRA 99 (1996),
thus:

xxx To rule otherwise would surely burden the Court with trivial administrative questions
that are best ventilated before the RTC [Regional Trial Court], a court which the law
vests with the power to exercise original jurisdiction over all cases not within the
exclusive jurisdiction of any court, tribunal, person or body exercising judicial or
quasi-judicial functions.[19]

Lastly, petitioners allege that while the plebiscite sought to be enjoined has already
been conducted on February 28, 1998, the instant petition is far from being moot and
academic, claiming that the actual holding of the said plebiscite could not validate an
otherwise invalid ordinance and resolution;[20] that there are still substantial matters to be

110
resolved;[21] assuming arguendo that this petition has become moot and academic, courts
will decide a question otherwise moot and academic if it is capable of repetition, yet
evading review;[22] and finally, petitioners maintain that this Court has resolved to require
the parties to maintain the status quo prevailing at the time of the filing of the petition, that
is, a day before the plebiscite was scheduled to be conducted. [23]
Concurring with petitioners arguments, the Solicitor General, in his Memorandum
filed on September 7, 1999, asserts that xxx. [i]t is already settled in this jurisdiction that
what is contemplated by the terms any decision, order or ruling of the COMELEC
reviewable by certiorari to this Honorable Court, as provided under Section 7, Article IX-A
of the [1987] Constitution, are those that relate to the COMELECs exercise of
its adjudicatory or quasi-judicial powers involving elective regional, provincial and city
officials. (Citations omitted.)[24]24 The Solicitor General further argues that the issuance
of COMELEC Resolution No. 2987 is a ministerial duty of the COMELEC in the exercise
of its administrative functions, hence, it is submitted that the aforecited constitutional
provision is inapplicable.
Public respondent Commission on Elections (COMELEC), on the other hand,
submits that the power to review or reverse COMELEC Resolution No. 2987 solely
belongs to this Court, citing the earlier cases of Zaldivar vs. Estenzo (23 SCRA 533,
540-541 [1968]); Luison vs. Garcia (L-10916, May 20, 1957); Macud vs.
COMELEC (23 SCRA 224 [1968]); and Aratuc vs. COMELEC (88 SCRA 251, 272
[1979]);[25] thus:

xxx. For even without the express constitutional prescription that only this Court may
review the decisions, orders and rulings of the Commission on Elections, it is easy to
understand why no interference whatsoever with the performance of the Commission on
Elections of its functions should be allowed unless emanating from this Court. The
observation of Acting Chief Justice J.B.L. Reyes in Albano v. Arranz while not precisely
in point, indicates the proper approach. Thus: It is easy to realize the chaos that would
ensue if the Court of First Instance of each and every province were to arrogate unto itself
the power to disregard, suspend, or contradict any order of the Commission on Elections;
that constitutional body would be speedily reduced to impotence. [26]

The COMELEC further argues that if a Regional Trial Court does not have
jurisdiction to issue writs against statutory agencies of government like the ones cited
above [referring to the former Court of Industrial Relations, Philippine Patent Office,
Public Service Commission, Social Security Commission, National Electrification
Administration and Presidential Commission on Good Government], a fortiori it can not
have any such jurisdiction over the Commission on Elections, a constitutional independent
body expressly clothed by the 1987 Constitution with, among others, quasi-judicial
functions and tasked with one of the most paramount aspects of a democratic
government. xxx.[27] Finally, the COMELEC contends that the temporary restraining order
sought by petitioners has been rendered moot and academic by the actual holding of the
plebiscite sought to be enjoined.[28]

111
 The appeal is meritorious.
Section 7, Article IX-A of the 1987 Constitution provides in part that:

SEC. 7. xxx. 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.

In Garces vs. Court of Appeals (259 SCRA 99 [1996]) and Filipinas Engineering
and Machine Shop vs. Ferrer (135 SCRA 25 [1985]), we found occasion to interpret the
foregoing provision in this wise:

xxx. What is contemplated by the term final orders, rulings and decisions of the
COMELEC reviewable by certiorari by the Supreme Court as provided by law are those
rendered in actions or proceedings before the COMELEC and taken cognizance of by the
said body in the exercise of its adjudicatory or quasi-judicial powers.[29]

In Filipinas, we have likewise affirmed that the powers vested by the Constitution
and the law on the Commission on Elections may either be classified as those pertaining to
its adjudicatory or quasi-judicial functions, or those which are inherently administrative
and sometimes ministerial in character.[30]
As aptly explained by the Solicitor General, in the instant case, after the COMELEC
ascertained the issuance of the ordinance and resolution declaring the abolition of barangay
San Rafael, it issued COMELEC Resolution No. 2987 calling for a plebiscite to be held in
the affected barangays, pursuant to the provisions of Section 10 of Republic Act No.
7160. We agree with the Solicitor General that xxx. [t]he issuance of [COMELEC]
Resolution No. 2987 is thus a ministerial duty of the COMELEC that is enjoined by law
and is part and parcel of its administrative functions. It involves no exercise of
discretionary authority on the part of respondent COMELEC; let alone an exercise of its
adjudicatory or quasi-judicial power to hear and resolve controversies defining the rights
and duties of party-litigants, relative to the conduct of elections of public officers and the
enforcement of the election laws. (Citation omitted.)[31]Briefly, COMELEC Resolution No.
2987 which provides for the rules and regulations governing the conduct of the required
plebiscite, was not issued pursuant to the COMELECs quasi-judicial functions but merely
as an incident of its inherent administrative functions over the conduct of plebiscites, thus,
the said resolution may not be deemed as a final order reviewable by certiorari by this
Court. Any question pertaining to the validity of said resolution may be well taken in an
ordinary civil action before the trial courts.
Even the cases cited by the public respondent in support of its contention that the
power to review or reverse COMELEC Resolution No. 2987 solely belongs to this
Court are simply not in point. Zaldivar vs. Estenzo[32] speaks of the power of the
COMELEC to enforce and administer all laws relative to the conduct of elections to the
exclusion of the judiciary. In the present case, petitioners are not contesting the exclusive

112
authority of the COMELEC to enforce and administer election laws. Luison vs.
Garcia[33] refers to this Courts power to review administrative decisions, particularly
referring to a COMELEC resolution declaring a certain certificate of candidacy null and
void, based on Article X, Section 2 of the 1935 Constitution. In Macud vs.
COMELEC,[34] we reiterated that when a board of canvassers rejects an election return on
the ground that it is spurious or has been tampered with, the aggrieved party may elevate
the matter to the COMELEC for appropriate relief, and if the COMELEC sustains the
action of the board, the aggrieved party may appeal to this Court. In
both Luison and Macud, the assailed COMELEC resolutions fall within the purview of
final orders, rulings and decisions of the COMELEC reviewable by certiorari by this Court.
In view of the foregoing, public respondents other contentions deserve scant
consideration.
WHEREFORE, the petition for review is hereby GRANTED, and the assailed
Order dated February 25, 1998, of the Regional Trial Court of Balayan, Batangas, Branch
XI is hereby SET ASIDE and ANNULLED. The Regional Trial Court of Balayan,
Batangas, Branch XI is ordered to proceed with dispatch in resolving Civil Case No.
3442. The execution of the result of the plebiscite held on February 28, 1998 shall be
deferred depending on the outcome of Civil Case No. 3442.
SO ORDERED.

113
 Republic of the Philippines

Supreme Court

Manila

EN BANC

DOUGLAS R. CAGAS,
G.R. No. 194139

Petitioner,

Present:

CORONA, C.J.,
CARPIO,
VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
-versus- PEREZ,
MENDOZA,
SERENO,
REYES, and
PERLAS-BERNABE, JJ.

114
 Promulgated:

THE COMMISSION ON ELECTIONS, AND

January 24, 2012
CLAUDE P. BAUTISTA,

Respondents.

x-----------------------------------------------------------------------------------------x

DECISION

BERSAMIN, J.:

A party aggrieved by an interlocutory order issued by a Division of the Commission on

Elections (COMELEC) in an election protest may not directly assail the order in this
Court through a special civil action for certiorari. The remedy is to seek the review of the
interlocutory order during the appeal of the decision of the Division in due course.

For resolution is the petition for certiorari brought under Rule 64 of the Rules
of Court, assailing the order dated August 13, 2010 (denying the affirmative defenses
raised by the petitioner),1 and the order dated October 7, 2010 (denying his motion for
reconsideration),2 both issued by the COMELEC First Division in EPC No. 2010-42, an
election protest entitled Claude P. Bautista, protestant v. Douglas R. Cagas, protestee.3

Antecedents

115
The petitioner and respondent Claude P. Bautista (Bautista) contested the position of
Governor of the Province of Davao del Sur in the May 10, 2010 automated national and
local elections. The fast transmission of the results led to the completion by May 14,
2010 of the canvassing of votes cast for Governor of Davao del Sur, and the petitioner
was proclaimed the winner (with 163,440 votes), with Bautista garnering 159,527 votes. 4

Alleging fraud, anomalies, irregularities, vote-buying and violations of election laws,

rules and resolutions, Bautista filed an electoral protest on May 24, 2010 (EPC No. 2010-
42).5 The protest was raffled to the COMELEC First Division.

In his answer submitted on June 22, 2010,6 the petitioner averred as his special
affirmative defenses that Bautista did not make the requisite cash deposit on time; and
that Bautista did not render a detailed specification of the acts or omissions complained
of.

On August 13, 2010, the COMELEC First Division issued the first assailed
order denying the special affirmative defenses of the petitioner, 7 viz:

After careful examination of the records of the case, this

Commission (First Division) makes the following observation:

1. Protestant paid the cash deposit amounting to one hundred

thousand pesos (P100,000.00) on June 3, 2010 as evidenced by
O.R. No. 1118105; and

2. Paragraph nos. 9 to 28 of the initiatory petition filed by the

Protestant set forth the specific details of the acts and
omissions complained of against the Protestee.

116
 It is therefore concluded that the payment by the Protestant on
June 3, 2010 is a substantial compliance with the requirement of
COMELEC Resolution No. 8804, taking into consideration Section
9(e), Rule 6 of said Resolution. Furthermore, the Protestant has
likewise essentially complied with Section 7(g), Rule 6 of the
above-mentioned Resolution.

In view of the foregoing, this Commission (First Division)

RESOLVES to DENY the Protestees special affirmative defenses.

SO ORDERED.8

The petitioner moved to reconsider on the ground that the order did not discuss
whether the protest specified the alleged irregularities in the conduct of the elections, in
violation of Section 2, paragraph 2,9 Rule 19 of COMELEC Resolution No.
8804,10 requiring all decisions to clearly and distinctly express the facts and the law on
which they were based; and that it also contravened Section 7(g), 11 Rule 6 of COMELEC
Resolution No. 8804 requiring a detailed specification of the acts or omissions
complained of. He prayed that the matter be certified to the COMELEC en banc pursuant
to Section 1,12 Section 5,13 and Section 6,14 all of Rule 20 of COMELEC Resolution No.
8804.

The petitioner insisted that COMELEC Resolution No. 8804 had introduced the
requirement for the detailed specification to prevent shotgun fishing expeditions by
losing candidates;15 that such requirement contrasted with Rule 6, Section 1 of the 1993
COMELEC Rules of Procedure,16 under which the protest needed only to contain a
concise statement of the ultimate facts constituting the cause or causes of action; that
Bautistas protest did not meet the new requirement under COMELEC Resolution No.
8804; and that in Pea v. House of Representatives Electoral Tribunal,17 the Court upheld
the dismissal of a protest by the House of Representatives Electoral Tribunal (HRET) for
not specifically alleging the electoral anomalies and irregularities in the May 8, 1995
elections.

In his opposition,18 Bautista countered that the assailed orders, being merely
interlocutory, could not be elevated to the COMELEC en banc pursuant to the ruling
in Panlilio v. COMELEC;19 that the rules of the COMELEC required the initiatory

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petition to specify the acts or omissions constituting the electoral frauds, anomalies and
election irregularities, and to contain the ultimate facts upon which the cause of action
was based; and that Pea v. House of Representatives Electoral Tribunal did not apply
because, firstly, Pea had totally different factual antecedents than this case, and,
secondly, the omission of material facts from Peas protest prevented the protestee
(Alfredo E. Abueg, Jr.) from being apprised of the issues that he must meet and made it
eventually impossible for the HRET to determine which ballot boxes had to be collected.

On October 7, 2010, the COMELEC First Division issued its second assailed
order,20 denying the petitioners motion for reconsideration for failing to show that the
first order was contrary to law, to wit:

The Protestees August 28, 2010 Motion for Reconsideration

with Prayer to Certify the Case to the Commission En Banc relative
to the Order issued by the Commission (First Division) dated August
13, 2010 is hereby DENIED for failure to show that the assailed
order is contrary to law

Without going into the merits of the protest, the

allegations in the protestants petition have substantially complied
with the requirements of COMELEC Resolution No. 8804 that
will warrant the opening of the ballot boxes in order to resolve
not only the issues raised in the protest but also those set forth in
the Protestees answer. When substantial compliance with the
rules is satisfied, allowing the protest to proceed is the best way of
removing any doubt or uncertainty as to the true will of the
electorate. All other issues laid down in the parties pleadings,
including those in the Protestees special and affirmative defenses
and those expressed in the preliminary conference brief, will best
be threshed out in the final resolution of the instant case.

The prayer to elevate the instant Motion for

Reconsideration to the Commission En Banc is DENIED
considering that the 13 August 2010 Order is merely
interlocutory and it does not dispose of the instant case with
finality, in accordance with Section 5(c), Rule 3 of the
COMELEC Rules of Procedure.

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 SO ORDERED.

Not satisfied, the petitioner commenced this special civil action directly in this
Court.

Issue

The petitioner submits that:

THE RESPONDENT COMELEC COMMITTED GRAVE ABUSE

OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN REFUSING TO DISMISS THE PROTEST FOR
INSUFFICIENCY IN FORM AND CONTENT.

The petitioner argues that Section 9,21 Rule 6 of COMELEC Resolution No.
8804 obliged the COMELEC First Division to summarily dismiss the protest for being
insufficient in form and content; and that the insufficiency in substance arose from the
failure of the protest to: (a) specifically state how the various irregularities and anomalies
had affected the results of the elections; (b) indicate in which of the protested precincts
were pre-shaded bogus-ballots used; (c) identify the precincts where the PCOS machines
had failed to accurately account for the votes in favor of Bautista; and (d) allege with
particularity how many additional votes Bautista stood to receive for each of the grounds
he protested. He concludes that the COMELEC First Division gravely abused its
discretion in allowing the protest of Bautista despite its insufficiency.

Moreover, the petitioner urges that the protest be considered as a mere fishing
expedition to be outrightly dismissed in light of the elections being held under an
automated system. In support of his urging, he cites Roque, Jr. v. Commission on
Elections,22 where the Court took judicial notice of the accuracy and reliability of the
PCOS machines and CCS computers, such that allegations of massive errors in the

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automated counting and canvassing had become insufficient as basis for the COMELEC
to entertain or to give due course to defective election protests. 23 He submits that a protest
like Bautistas cast doubt on the automated elections.

On the other hand, the Office of the Solicitor General (OSG) and Bautista both
posit that the COMELEC had the power and prerogative to determine the sufficiency of
the allegations of an election protest; and that certiorari did not lie because the
COMELEC First Division acted within its discretion. Additionally, the OSG maintains
that the assailed orders, being interlocutory, are not the proper subjects of a petition
for certiorari.

As we see it, the decisive issue is whether the Court can take cognizance of the
petition for certiorari.

Ruling

We dismiss the petition for lack of merit.

The governing provision is Section 7, Article IX of the 1987 Constitution,

which provides:

Section 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

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 Court on certiorari by the aggrieved party within thirty days from
receipt of a copy thereof.

This provision, although it confers on the Court the power to review any
decision, order or ruling of the COMELEC, limits such power to a final decision or
resolution of the COMELEC en banc, and does not extend to an interlocutory order
issued by a Division of the COMELEC. Otherwise stated, the Court has no power to
review on certiorari an interlocutory order or even a final resolution issued by a Division
of the COMELEC. The following cogent observations made in Ambil v. Commission on
Elections24 are enlightening, viz:

To begin with, the power of the Supreme Court to review

decisions of the Comelec is prescribed in the Constitution, as follows:

Section 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. [emphasis supplied]

We have interpreted this provision to mean final orders,

rulings and decisions of the COMELEC rendered in the exercise
of its adjudicatory or quasi-judicial powers. This decision must
be a final decision or resolution of the Comelec en banc, not of a
division, certainly not an interlocutory order of a division. The
Supreme Court has no power to review via certiorari, an
interlocutory order or even a final resolution of a Division of the
Commission on Elections.

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 The mode by which a decision, order or ruling of the
Comelec en banc may be elevated to the Supreme Court is by the
special civil action of certiorari under Rule 65 of the 1964 Revised
Rules of Court, now expressly provided in Rule 64, 1997 Rules of
Civil Procedure, as amended.

Rule 65, Section 1, 1997 Rules of Civil Procedure, as

amended, requires that there be no appeal, or any plain,
speedy and adequate remedy in the ordinary course of law. A motion
for reconsideration is a plain and adequate remedy provided by
law. Failure to abide by this procedural requirement constitutes a
ground for dismissal of the petition.
In like manner, a decision, order or resolution of a
division of the Comelec must be reviewed by the Comelec en banc
via a motion for reconsideration before the final en bancdecision
may be brought to the Supreme Court on certiorari. The pre-
requisite filing of a motion for reconsideration is
mandatory.xxx25

There is no question, therefore, that the Court has no jurisdiction to take

cognizance of the petition for certiorari assailing the denial by the COMELEC First
Division of the special affirmative defenses of the petitioner. The proper remedy is for
the petitioner to wait for the COMELEC First Division to first decide the protest on its
merits, and if the result should aggrieve him, to appeal the denial of his special
affirmative defenses to the COMELEC en banc along with the other errors committed by
the Division upon the merits.

It is true that there may be an exception to the general rule, as the Court
conceded in Kho v. Commission on Elections.26 In that case, the protestant assailed the
order of the COMELEC First Division admitting an answer with counter-
protest belatedly filed in an election protest by filing a petition for certiorari directly in
this Court on the ground that the order constituted grave abuse of discretion on the part of
the COMELEC First Division. The Court granted the petition and nullified the assailed
order for being issued without jurisdiction, and explained the exception thuswise:

As to the issue of whether or not the case should be

referred to the COMELEC en banc, this Court finds the
respondent COMELEC First Division correct when it held in its
order dated February 28, 1996 that no final decision,

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resolution or order has yet been made which will necessitate the
elevation of the case and its records to the Commission en
banc.No less than the Constitution requires that election cases must
be heard and decided first in division and any motion for
reconsideration of decisions shall be decided by the Commission en
banc. Apparently, the orders dated July 26, 1995, November 15, 1995
and February 28, 1996 and the other orders relating to the admission
of the answer with counter-protest are issuances of a Commission in
division and are all interlocutory orders because they merely rule
upon an incidental issue regarding the admission of Espinosa's
answer with counter-protest and do not terminate or finally dispose of
the case as they leave something to be done before it is finally
decided on the merits. In such a situation, the rule is clear that the
authority to resolve incidental matters of a case pending in a division,
like the questioned interlocutory orders, falls on the division itself,
and not on the Commission en banc. Section 5 (c), Rule 3 of the
COMELEC Rules of Procedure explicitly provides for this,

Sec. 5. Quorum; Votes Required xxx

xxx
(c) Any motion to reconsider a decision, resolution,
order or ruling of a Division shall be resolved by the
Commission en banc except motions on interlocutory
orders of the division which shall be resolved by the
division which issued the order. (emphasis provided)

Furthermore, a look at Section 2, Rule 3 of the COMELEC

Rules of Procedure confirms that the subject case does not fall on any
of the instances over which the Commission en banc can take
cognizance of. It reads as follows:

Section 2. The Commission en banc. The

Commission shall sit en banc in cases hereinafter
specifically provided, or in pre-proclamation cases upon
a vote of a majority of the members of a Commission, or
in all other cases where a division is not authorized to
act, or where, upon a unanimous vote of all the members
of a Division, an interlocutory matter or issue relative to
an action or proceeding before it is decided to be referred
to the Commission en banc.

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 In the instant case, it does not appear that the subject
controversy is one of the cases specifically provided under the
COMELEC Rules of Procedure in which the Commission may
sit en banc. Neither is it shown that the present controversy a
case where a division is not authorized to act nor a situation
wherein the members of the First Division unanimously voted to
refer the subject case to the Commission en banc. Clearly, the
Commission en banc, under the circumstances shown above, can
not be the proper forum which the matter concerning the assailed
interlocutory orders can be referred to.

In a situation such as this where the Commission in

division committed grave abuse of discretion or acted without or
in excess of jurisdiction in issuing interlocutory orders relative to
an action pending before it and the controversy did not fall under
any of the instances mentioned in Section 2, Rule 3 of the
COMELEC Rules of Procedure, the remedy of the aggrieved
party is not to refer the controversy to the Commission en
banc as this is not permissible under its present rules but to
elevate it to this Court via a petition for certiorariunder Rule 65
of the Rules of Court. (Bold emphasis supplied)

Under the exception, therefore, the Court may take cognizance of a petition
for certiorari under Rule 64 to review an interlocutory order issued by a Division of the
COMELEC on the ground of the issuance being made without jurisdiction or in excess of
jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction
when it does not appear to be specifically provided under the COMELEC Rules of
Procedure that the matter is one that the COMELEC en banc may sit and consider, or a
Division is not authorized to act, or the members of the Division unanimously vote to
refer to the COMELEC en banc. Of necessity, the aggrieved party can directly resort to
the Court because the COMELEC en banc is not the proper forum in which the matter
concerning the assailed interlocutory order can be reviewed.

However, the Kho v. Commission on Elections exception has no application

herein, because the COMELEC First Division had the competence to determine the lack
of detailed specifications of the acts or omissions complained of as required by Rule 6,
Section 7 of COMELEC Resolution No. 8804, and whether such lack called for the
outright dismissal of the protest. For sure, the 1987 Constitution vested in the COMELEC
broad powers involving not only the enforcement and administration of all laws and

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regulations relative to the conduct of elections but also the resolution and determination
of election controversies.27 The breadth of such powers encompasses the authority to
determine the sufficiency of allegations contained in every election protest and to decide
based on such allegations whether to admit the protest and proceed with the hearing or to
outrightly dismiss the protest in accordance with Section 9, Rule 6 of COMELEC
Resolution No. 8804.

The Court has upheld the COMELECs determination of the sufficiency of

allegations contained in election protests, conformably with its imperative duty to
ascertain in an election protest, by all means within its command, who was the candidate
elected by the electorate.28 Indeed, in Panlilio v. Commission on Elections,29 we brushed
aside the contention that the election protest was insufficient in form and substance and
was a sham for having allegations couched in general terms, stating:

In Miguel v. COMELEC, the Court belittled the petitioners

argument that the protestant had no cause of action, as the allegations
of fraud and irregularities, which were couched in general terms,
were not sufficient to order the opening of ballot boxes and counting
of ballots. The Court states the rules in election protests cognizable
by the COMELEC and courts of general jurisdiction, as follows:

The rule in this jurisdiction is clear and

jurisprudence is even clearer. In a string of categorical
pronouncements, we have consistently ruled that when
there is an allegation in an election protest that would
require the perusal, examination or counting of ballots as
evidence, it is the ministerial duty of the trial court to
order the opening of the ballot boxes and the
examination and counting of ballots deposited therein.

In a kindred case, Homer Saquilayan v. COMELEC, the Court

considered the allegations in an election protest, similar to those in
this case, as sufficient in form and substance.

Again, in Dayo v. COMELEC, the Court declared that

allegations of fraud and irregularities are sufficient grounds for
opening the ballot boxes and examining the questioned ballots. The

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 pronouncement is in accordance with Section 255 of the Omnibus
Election Code, which reads:

Judicial counting of votes in election contest.

Where allegations in a protest or counter-protest so
warrant, or whenever in the opinion of the court in the
interests of justice so require, it shall immediately order
the book of voters, ballot boxes and their keys, ballots
and other documents used in the election be brought
before it and that the ballots be examined and the votes
recounted.

In this case, the COMELEC Second Division found that the

allegations in the protest and counter-protest warranted the opening
of the contested ballot boxes and the examination of their contents to
settle at once the conflicting claims of petitioner and private
respondent.

The petitioner adds that with the Court having noted the reliability and
accuracy of the PCOS machines and consolidation/canvassing system (CCS) computers
in Roque, Jr. v. Commission on Elections,30 Bautistas election protest assailing the system
and procedure of counting and canvassing of votes cast in an automated system of
elections should be immediately dismissed.

We are not persuaded.

Roque, Jr. v. Commission on Elections does not preclude the filing of an

election protest to challenge the outcome of an election undertaken in an automated
system of elections. Instead, the Court only ruled there that the system and procedure
implemented by the COMELEC in evaluating the PCOS machines and CCS computers
met the minimum system requirements prescribed in Section 7 of Republic Act No.
8436.31 The Court did not guarantee the efficiency and integrity of the automated system
of elections, as can be gleaned from the following pronouncement thereat:

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 The Court, however, will not indulge in the presumption that
nothing would go wrong, that a successful automation election
unmarred by fraud, violence, and like irregularities would be the
order of the moment on May 10, 2010. Neither will it guarantee, as it
cannot guarantee, the effectiveness of the voting machines and the
integrity of the counting and consolidation software embedded in
them. That task belongs at the first instance to Comelec, as part of its
mandate to ensure clean and peaceful elections. This independent
constitutional commission, it is true, possesses extraordinary powers
and enjoys a considerable latitude in the discharge of its functions.
The road, however, towards successful 2010 automation elections
would certainly be rough and bumpy. The Comelec is laboring under
very tight timelines. It would accordingly need the help of all
advocates of orderly and honest elections, of all men and women of
goodwill, to smoothen the way and assist Comelec personnel address
the fears expressed about the integrity of the system. Like anyone
else, the Court would like and wish automated elections to succeed,
credibly.32

In view of the foregoing, we have no need to discuss at length the other

submissions of the petitioner.

ACCORDINGLY, the petition for certiorari is DISMISSED for lack of merit.

SO ORDERED.

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