[G.R. No. 161872.

July 13, 2004]

PAMATONG vs. COMELEC

EN BANC

A brief recall of the antecedents, as cited in our Resolution dated 13 April 2004. Petitioner Elly
Velez Lao Pamatong filed his certificate of candidacy for the President. However, respondent
Commission on Elections (COMELEC) refused to give due course to it per Resolution No. 6558
dated 17 January 2004. After the COMELEC denied his Motion for Reconsideration, petitioner filed
the present petition before the Court.

Petitioner argued that the "equal access clause" in the Constitution 1 vested in him the right to
seek public office, the presidency in particular. He also sought a temporary restraining order to
enjoin the COMELEC from enforcing its assailed Resolutions. The Court deemed it proper not to
grant the provisional relief sought.

In the aforementioned Resolution dated 13 April 2004, the Court ruled that the equal access
clause does grant petitioner the right to seek public office. However, owing to the fact that the
assailed resolutions of the COMELEC do not direct the Court to the evidence which it considered
in determining that petitioner was a nuisance candidate, the Court remanded the case to the
COMELEC for the reception of further evidence, with a directive to the poll body to complete the
proceedings and "report its findings to this Court with deliberate dispatch."

In accordance with the Court's Resolution, the COMELEC held the hearing for the reception of
further evidence on 27 April 2004. During the hearing, petitioner appeared for himself. He
presented two witnesses.2 He also offered the documentary evidence before the COMELEC,
including copies of various books authored by the petitioner. 3

On 4 May 2004, the COMELEC, through Commissioner Florentine A. Tuason, Jr., submitted to this
Court a Compliance Report. Attached thereto were the various documentary exhibits submitted
by petitioner, as well as a transcript of the hearing of 27 April 2004. A portion of the Report,
under the caption "Findings", contained a very brief summary of the antecedent facts, and
citations of Section 69 of the Omnibus Election Code and Section 6 of Comelec Resolution No.
6452. The provisions contain the legal basis for the disqualification of "nuisance candidates."
However, the Report did not present any evaluation of the evidence submitted by petitioner.
Neither did it offer any recommendation.

The Report was deemed unsatisfactory in light of the specific instructions given to the COMELEC
in the 13 April 2004 Resolution, the relevant portion of which reads:

However valid the law and the COMELEC issuance involved are, their proper application in the
case of the petitioner cannot be tested and reviewed by this Court on the basis of what is now
before it. The assailed resolutions of the COMELEC do not direct the Court to the evidence which
it considered in determining that petitioner was a nuisance candidate. This precludes the Court
from reviewing at this instance whether the COMELEC committed grave abuse of discretion in
disqualifying petitioner, since such a review would necessarily take into account the matters
which the COMELEC considered in arriving at its decisions.

Petitioner has submitted to this Court mere photocopies of various documents

purportedly evincing his credentials as an eligible candidate for the presidency. Yet this Court,
not being a trier of facts, can not properly pass upon the reproductions as evidence at this level.
Neither the COMELEC nor the Solicitor General appended any document to their
respective Comments.

The question of whether a candidate is a nuisance candidate or not is both legal and factual. The
basis of the factual determination is not before this Court. Thus, the remand of this case for the
reception of further evidence is in order.4
Accordingly, in the Resolution dated 6 May 2004, the Court required the COMELEC to "FULLY
COMPLY with the aforesaid resolution of 13 April 2004 by submitting a signed report containing
the evaluation of the evidence and its recommendation, within five (5) days from notice
hereof."5 On 12 May 2004, the COMELEC submitted a new Compliance Report, which contained
an evaluation of petitioner's evidence but was signed "for the Commission" by one Alioden D.
Dalaig, Director IV, Law Department of the COMELEC.6

In a Resolution dated 8 June 2004, the Court returned the Compliance Report filed by Atty.
Dalaig to the COMELEC, for resubmission together with the appropriate signatures thereon. 7On
28 June 2004, the Compliance Report was resubmitted, this time signed by five Commissioners of
the COMELEC.8

The COMELEC Compliance Report recites the following findings:

In its Resolution No. 6558, the Commission denied due course to the certificate of candidacy of
several presidential candidates, including petitioner, on the following grounds:

1. Candidates who have no bona fide intention to run for the office for which the certificate of
candidacy had been filed or acts that clearly demonstrate the lack of such bona fide intention as:

a. candidates who do not belong to or are nominated by any registered political

party of national constituency;

b. presidential candidates who do not present running mate for vice-president, nor
senatorial candidates;

c. candidates who do not have a platform of government and are not capable of
waging a nationwide campaign.

The records of the Commission indubitably show that petitioner is not nominated by any political
party; neither does he have a running mate for vice-president nor senatorial candidates. While it
may be true that he has a platform of government but he is not capable of waging a nationwide
campaign. He has no organizational setup on a nationwide basis.

In the hearing of April 27, 2004, the testimonial and documentary evidence submitted by
petitioner are nothing but an enumeration of the books he has written, his achievements and his
work experiences. There is nothing therein which show that he has the machinery and necessary
organization to wage a nationwide campaign.

In his testimony on April 27, 2004, petitioner admitted that he was a party-list nominee (Alliance
for Democracy) in the May 2001 elections and said party garnered only about 50,000 votes; and
that he run for a certain elective position in Zamboanga and garnered only more or less 456
votes. If petitioner cannot obtain substantial number of votes for these elective positions, in the
absence of other evidence showing his bona fide intention to run for the Office of President and
his capability to wage a nationwide campaign, there is no cogent reason to disturb the findings of
the Commission that the is a nuisance candidate.9

There is nothing disputable about the above-quoted findings of the COMELEC. Section 69 of the
Omnibus Election Code authorizes the disqualification of a candidate who has no bona
fide intention to run for the office for which the certificate of candidacy has been filed.10
COMELEC Resolution No. 6452 likewise provides the mechanics and the grounds for denying,
among others, a presidential candidacy, bona fide status, such as the lack of a political party
backing the candidacy, the lack of a running mate or accompanying slate of candidates, or the
incapability to wage a nationwide campaign.11 The COMELEC has made the specific finding that
petitioner's candidacy is not bona fide, citing the reasons on which the conclusion is based.
However, the present petition has obviously been mooted with the holding of the presidential
elections on 10 May 2004. The Court is no longer in a position to grant the relief prayed for in the
petition. Hence, there is no recourse but to dismiss the petition on the ground of mootness.

WHEREFORE, the Petition is dismissed for having become MOOT and ACADEMIC. No costs.
 EN BANC

G.R. No. 165983 April 24, 2007

JOY CHRISMA B. LUNA, Petitioner,

vs.
COMMISSION ON ELECTIONS, TOMAS LAYAO, SOLOMON LALUGAN III, NELIA LAZAGA,
ANTHONY LAYAO, CIPRIANO LAPEZ, JR., VICTORIA LAYAO, MODERNO LAPEZ, RODRIGO
PARIÑAS, and EUGENIO CABER DONATO, Respondents.

DECISION

CARPIO, J.:

The Case

Before this Court is a petition for certiorari1 with prayer for the issuance of a temporary restraining
order, writ of preliminary injunction or status quo order questioning the 4 June 2004 Resolution of the
Commission on Elections (COMELEC) First Division and the 22 November 2004 Resolution of the
COMELEC En Banc in SPA Case No. 04-306. The 4 June 2004 Resolution denied due course to the
substitution of petitioner Joy Chrisma B. Luna (Luna) for Hans Roger Luna (Hans Roger) and
declared the substitution invalid. The 22 November 2004 Resolution denied Luna’s motion for
reconsideration.

The Facts

On 15 January 2004, Luna filed her certificate of candidacy for the position of vice-mayor of
Lagayan, Abra as a substitute for Hans Roger, who withdrew his certificate of candidacy on the
same date. Ruperto Blanco, Election Officer of Lagayan, Abra removed the name of Hans Roger
from the list of candidates and placed the name of Luna.

On 20 April 2004, private respondents Tomas Layao, Solomon Lalugan III, Nelia Lazaga, Anthony
Layao, Cipriano Lapez, Jr., Victoria Layao, Moderno Lapez, Rodrigo Pariñas, and Eugenio Caber
Donato (private respondents) filed a petition for the cancellation of the certificate of candidacy or
disqualification of Luna. Private respondents alleged that Luna made a false material representation
in her certificate of candidacy because Luna is not a registered voter of Lagayan, Abra but a
registered voter of Bangued, Abra. Private respondents also claimed that Luna’s certificate of
candidacy was not validly filed because the substitution by Luna for Hans Roger was invalid. Private
respondents alleged that Hans Roger was only 20 years old on election day and, therefore, he was
disqualified to run for vice-mayor and cannot be substituted by Luna.21ªvvphi 1.nét

The COMELEC’s Ruling

In the 4 June 2004 Resolution, the COMELEC First Division granted the petition and denied due
course to the substitution of Luna for Hans Roger. The COMELEC First Division ruled that, while
Luna complied with the procedural requirements for substitution, Hans Roger was not a valid
candidate for vice-mayor. The COMELEC First Division pointed out that Hans Roger, being
underage,3 did not file a valid certificate of candidacy and, thus, Hans Roger was not a valid
candidate for vice-mayor who could be substituted by Luna. The COMELEC First Division also ruled
that Luna was not a registered voter of Lagayan, Abra and that this was sufficient to disqualify Luna
from running as vice-mayor.
On 28 June 2004, Luna filed a motion for reconsideration with the COMELEC En Banc. Luna added
that the 4 June 2004 Resolution was issued in violation of her right to due process because she was
not given the opportunity to present evidence on her behalf with the COMELEC First Division.

In the 22 November 2004 Resolution, the COMELEC En Banc denied the motion for reconsideration
and affirmed with modification the 4 June 2004 Resolution. The COMELEC En Banc affirmed the
finding that Hans Roger, being underage, may not be validly substituted by Luna. The COMELEC En
Banc also ruled that Luna’s right to due process was not violated because Luna was notified of the
petition and was given the opportunity to be heard. However, the COMELEC En Banc ruled that
Luna was a registered voter of Lagayan, Abra.

Hence, this petition.

In a Resolution dated 11 January 2005, we required the parties to maintain the status quo prevailing
before the issuance of the assailed COMELEC resolutions pending the resolution of this petition.4

The Issues

Luna raised the following issues:

1. Whether the COMELEC committed grave abuse of discretion when it ruled that there was
no violation of Luna’s right to due process; and

2. Whether the COMELEC committed grave abuse of discretion when it ruled that there was
no valid substitution by Luna for Hans Roger.

The Court’s Ruling

The petition is partly meritorious.

Luna’s Right to Due Process was not Violated

Luna contends that her right to due process was violated because she was not given the opportunity
to present her evidence before the COMELEC First Division.

Under Rule 23 of the 1993 COMELEC Rules of Procedure, a petition to deny due course to or
cancel a certificate of candidacy shall be heard summarily after due notice. The law mandates that
the candidates must be notified of the petition against them and should be given the opportunity to
present evidence on their behalf.5 This is the essence of due process.

In this case, the COMELEC En Banc stated that the records showed that three days after the
petition was filed, the Provincial Election Supervisor, as hearing officer, with the assistance of the
Philippine National Police Provincial Command, tried to personally serve a copy of the petition to
Luna. But Luna refused to formally receive the petition. On 26 April 2004, the Office of the Provincial
Election Supervisor sent the notice via registered mail and still Luna did not file an answer.

The Court finds that Luna’s right to due process was not violated. The COMELEC notified Luna of
the petition filed against her and Luna was given the opportunity to present evidence on her behalf.
This constitutes compliance with the requirements of due process.

Substitution of Luna for Hans Roger was Valid

Luna contends that Hans Roger filed a valid certificate of candidacy and, subsequently, upon Hans
Roger’s withdrawal of his certificate of candidacy, there was a valid substitution by Luna.

On the other hand, the COMELEC ruled that Hans Roger, being under age, could not be considered
to have filed a valid certificate of candidacy and, therefore, is not a valid candidate who could be
substituted by Luna.

When a candidate files his certificate of candidacy, the COMELEC has a ministerial duty to receive
and acknowledge its receipt. Section 76 of the Omnibus Election Code (Election Code) provides:

Sec. 76. Ministerial duty of receiving and acknowledging receipt.- The Commission, provincial
election supervisor, election registrar or officer designated by the Commission or the board of
election inspectors under the succeeding section shall have the ministerial duty to receive and
acknowledge receipt of the certificate of candidacy.

In this case, when Hans Roger filed his certificate of candidacy on 5 January 2004,6 the COMELEC
had the ministerial duty to receive and acknowledge receipt of Hans Roger’s certificate of candidacy.
Thus, the COMELEC had the ministerial duty to give due course to Hans Roger’s certificate of
candidacy.7

On 15 January 2004, Hans Roger withdrew his certificate of candidacy. The Election Code allows a
person who has filed a certificate of candidacy to withdraw the same prior to the election by
submitting a written declaration under oath.8 There is no provision of law which prevents a candidate
from withdrawing his certificate of candidacy before the election.9

On the same date, Luna filed her certificate of candidacy as substitute for Hans Roger. Section 77 of
the Election Code prescribes the rules on substitution of an official candidate of a registered political
party who dies, withdraws, or is disqualified for any cause after the last day for the filing of certificate
of candidacy. Section 77 of the Election Code provides:

Sec. 77. Candidates in case of death, disqualification or withdrawal of another. - If after the last
day for the filing of certificates of candidacy, an official candidate of a registered or accredited
political party dies, withdraws or is disqualified for any cause, only a person belonging to, and
certified by, the same political party may file a certificate of candidacy to replace the candidate who
died, withdrew or was disqualified. The substitute candidate nominated by the political party
concerned may file his certificate of candidacy for the office affected in accordance with the
preceding sections not later than mid-day of election day of the election. If the death, withdrawal or
disqualification should occur between the day before the election and mid-day of election day, said
certificate may be filed with any board of election inspectors in the political subdivision where he is a
candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with
the Commission.

Since Hans Roger withdrew his certificate of candidacy and the COMELEC found that Luna
complied with all the procedural requirements for a valid substitution,10 Luna can validly substitute for
Hans Roger.

The COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in
declaring that Hans Roger, being under age, could not be considered to have filed a valid certificate
of candidacy and, thus, could not be validly substituted by Luna. The COMELEC may not, by itself,
without the proper proceedings, deny due course to or cancel a certificate of candidacy filed in due
form.11 In Sanchez v. Del Rosario,12 the Court ruled that the question of eligibility or ineligibility of a
candidate for non-age is beyond the usual and proper cognizance of the COMELEC.
Section 7413 of the Election Code provides that the certificate of candidacy shall state, among others,
the date of birth of the person filing the certificate. Section 7814 of the Election Code provides that in
case a person filing a certificate of candidacy has committed false material representation, a verified
petition to deny due course to or cancel the certificate of candidacy of said person may be filed at
any time not later than 25 days from the time of filing of the certificate of candidacy.

If Hans Roger made a material misrepresentation as to his date of birth or age in his certificate of
candidacy, his eligibility may only be impugned through a verified petition to deny due course to or
cancel such certificate of candidacy under Section 78 of the Election Code.

In this case, there was no petition to deny due course to or cancel the certificate of candidacy of
Hans Roger. The COMELEC only declared that Hans Roger did not file a valid certificate of
candidacy and, thus, was not a valid candidate in the petition to deny due course to or cancel Luna’s
certificate of candidacy. In effect, the COMELEC, without the proper proceedings, cancelled Hans
Roger’s certificate of candidacy and declared the substitution by Luna invalid.

It would have been different if there was a petition to deny due course to or cancel Hans Roger’s
certificate of candidacy. For if the COMELEC cancelled Hans Roger’s certificate of candidacy after
the proper proceedings, then he is no candidate at all and there can be no substitution of a person
whose certificate of candidacy has been cancelled and denied due course.15 However, Hans Roger’s
certificate of candidacy was never cancelled or denied due course by the COMELEC.

Moreover, Hans Roger already withdrew his certificate of candidacy before the COMELEC declared
that he was not a valid candidate. Therefore, unless Hans Roger’s certificate of candidacy was
denied due course or cancelled in accordance with Section 78 of the Election Code, Hans Roger’s
certificate of candidacy was valid and he may be validly substituted by Luna.

WHEREFORE, we PARTLY GRANT the petition. We AFFIRM the ruling of the COMELEC En
Banc that there was no violation of petitioner Joy Chrisma B. Luna’s right to due process. We SET
ASIDE the ruling of the COMELEC En Banc that the substitution by petitioner Joy Chrisma B. Luna
for Hans Roger Luna was invalid. Petitioner Joy Chrisma B. Luna validly substituted for Hans Roger
Luna.
263 Phil. 422

CRUZ, J.:
Petitioner Roque Flores was proclaimed by the board of canvassers as
having received the highest number of votes for kagawad in the elections
held on 28 March 1989, in Barangay Poblacion, Tayum, Abra, and thus
became punong barangay in accordance with Section 5 of Rep. Act No.
6679, providing in part as follows:

Sec. 5. There shall be a sangguniang barangay in every duly constituted

barangay which shall be the legislative body and shall be composed of seven
(7) kagawads to be elected by the registered voters of the barangay. The
candidate who obtains the highest number of votes shall be the punong
barangay x x x.
However, his election was protested by Nobelito Rapisora, herein private
respondent who placed second in the election with 463 votes, or one vote
less than the petitioner. The Municipal Circuit Trial Court of Tayum, Abra,
sustained Rapisora and installed him as punong barangay in place of the
petitioner after deducting two votes as stray from the latter's total.[1]

Flores appealed to the Regional Trial Court of Abra, which affirmed the
challenged decision in toto. Judge Francisco O. Villarta, Jr. agreed that the
four votes cast for "Flores" only, without any distinguishing first name or
initial, should all have been considered invalid instead of being divided
equally between the petitioner and Anastacio Flores, another candidate for
kagawad. The judge held that the original total credited to the petitioner
was correctly reduced by 2, to 462, demoting him to second place.[2]

The petitioner then went to the Commission on Elections, but his appeal
was dismissed on the ground that the public respondent had no power to
review the decision of the regional trial court. This ruling, embodied in its
resolution dated 3 August 1989,[3] was presumably based on Section 9 of
Rep. Act No. 6679, which was quoted therein in full as follows:

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
result 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.

In this petition for certiorari, the Commission on Elections is faulted for

not taking cognizance of the petitioner's appeal and for not ruling that all
the four questioned votes should have been credited to him under the
equity-of-the-incumbent rule in Section 211(2) of the Omnibus Election
Code.

The Commission on Elections was obviously of the opinion that it could not
entertain the petitioner's appeal because of the provision in Rep. Act No.
6679 that the decision of the regional trial court in a protest appealed to it
from the municipal trial court in barangay elections "on questions of fact
shall be final and non-appealable."

While supporting the dismissal of the appeal, the Solicitor General justifies
this action on an entirely different and more significant ground, to wit,
Article IX-C, Section 2(2) of the Constitution, providing that the
Commission on Elections shall:

(2) Exercise exclusive original jurisdiction over all contests relating to the
elections, returns and qualifications of all elective regional, provincial, and
city officials, and appellate jurisdiction over all contests involving elective
municipal officials decided by trial courts of general jurisdiction, or
involving elective barangay officials decided by trial courts of limited
jurisdiction. (Emphasis supplied.)

Decisions, final orders, or rulings of the Commission on election contests

involving elective municipal and barangay offices shall be final, executory,
and not appealable.
His submission is that municipal or metropolitan courts being courts of
limited jurisdiction, their decisions in barangay election contests are
subject to the exclusive appellate jurisdiction of the Commission on
Elections under the afore-quoted section. Hence, the decision rendered by
the Municipal Circuit Trial Court of Tayum, Abra, should have been
appealed directly to the Commission on Elections and not to the Regional
Trial Court of Abra.

It is recalled that in the case of Luison v. Garcia,[4] respondent Garcia's

certificate of candidacy was declared invalid by the Commission on
Elections for non-compliance with the statutory requirements. What he did
was appeal to the court of first instance, which held that the certificate was
merely defective but not altogether null and void. Garcia continued his
candidacy on the strength of this ruling and was subsequently proclaimed
elected, thereafter assuming office as municipal mayor.

In sustaining the quo warranto petition filed against him by Luison, this
Court declared that all the votes cast for Garcia should have been rejected
as stray because he did not have a valid certificate of candidacy. The action
of the Commission on Elections should have been appealed not to the court
of first instance but to the Supreme Court as required by the 1935
Constitution. Since this was not done, the resolution of the Commission on
Elections rejecting Garcia's certificate remained valid on the date of the
election and rendered all votes cast for him as stray.

The doctrine in that case, although laid down under the 1935 Constitution,
is still controlling under the present charter as the interpretation by this
Court of Article IX-C, Section 2(2). Accordingly, Section 9 of Rep. Act No.
6679, insofar as it provides that the decision of the municipal or
metropolitan court in a barangay election case should be appealed to the
regional trial court, must be declared unconstitutional.

We make this declaration even if the law has not been squarely and
properly challenged by the petitioner. Ordinarily, the Court requires
compliance with the requisites of a judicial inquiry into a constitutional
question.[5] In the case at bar, however, we feel there is no point in waiting
to resolve the issue now already before us until it is raised anew, probably
only in the next barangay elections. The time to resolve it is now before
such elections. We shall therefore disregard the technical obstacles in the
case at bar so that the flaw in Rep. Act No. 6679 may be brought to the
attention of Congress and the constitutional defect in Section 9 may be
corrected.

In taking this step, the Court does not disregard the fact that the petitioner
was only acting in accordance with the said law when he appealed the
decision of the Municipal Circuit Trial Court of Tayum to the Regional Trial
Court of Abra. That is what the statute specifically directed in its Section 9
which, at the time the appeal was made, was considered constitutional. The
petitioner had a right to rely on its presumed validity as everyone
apparently did. Even the Congress and the Executive were satisfied that the
measure was constitutional when they separately approved it after careful
study. Indeed, no challenge to its validity had been lodged or even hinted -
not even by the public respondent - as to suggest to the petitioner that he
was following the wrong procedure. In fairness to him, therefore, we shall
consider his appeal to the Commission on Elections as having been made
directly from the Municipal Circuit Trial Court of Tayum, Abra,
disregarding the detour to the Regional Trial Court.

Accordingly, we hold that the petitioner's appeal was validly made to the
Commission on Elections under its "exclusive appellate jurisdiction over all
contests x x x involving elective barangay officials decided by trial courts of
limited jurisdiction." Its decision was in turn also properly elevated to us
pursuant to Article IX-A, Section 7, of the Constitution, stating that "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."

Obviously, the provision of Article IX-C, Section 2(2) of the Constitution

that "decisions, final orders, or rulings of the Commission on election
contests involving elective municipal and barangay offices shall be final,
executory, and not appealable" applies only to questions of fact and not of
law. That provision was not intended to divest the Supreme Court of its
authority to resolve questions of law as inherent in the judicial power
conferred upon it by the Constitution.[6] We eschew a literal reading of that
provision that would contradict such authority.

The issue the petitioner was raising was one of law, viz., whether he was
entitled to the benefits of the equity-of-the-incumbent rule and so subject
to our review. This issue was not resolved by the public respondent because
it apparently believed itself to be without appellate jurisdiction over the
decision of the Regional Trial Court of Abra. Considering that the public
respondent has already manifested its position on this issue, as will appear
presently, the Court will now rule upon it directly instead of adopting the
round-about way of remanding the case to the Commission on Elections
before its decision is elevated to this Court.

Implementing Rep. Act No. 6679, the Commission on Elections

promulgated Resolution No. 2022-A providing in Section 16(3) thereof
that:

Incumbent Barangay Captains, whether elected, appointed or designated

shall be deemed resigned as such upon the filing of their certificates of
candidacy for the office of "Kagawad," which is another office, for the
March 28, 1989 barangay election.
This was the reason why the Municipal Circuit Trial Court of Tayum, Abra,
held that the four questioned votes cast for Flores could not be credited to
either Roque Flores or Anastacio Flores and should have been regarded as
stray under Section 211(1)[7] of the Omnibus Election Code. Rejecting the
petitioner's claim, the court held that Roque Flores was not entitled to any
of the four contested votes because he was not incumbent as punong
barangay (or barangay captain, as the office was formerly called) on the
date of the election.

The petitioner insists on the application to him of Section 211(2) of the

Code, stating pertinently that:

2. x x x If there are two or more candidates with the same full name, first
name or surname and one of them is the incumbent, and on the ballot is
written only such full name, first name or surname, the vote shall be
counted in favor of the incumbent.

because he should not have been considered resigned but continued to be

entitled to the office of punong barangay under Section 8 of Rep. Act No.
6679, providing as follows:

Sec. 8. Incumbent elective officials running for the same office shall not be
considered resigned upon the filing of their certificates of candidacy. They
shall continue to hold office until their successors shall have been elected
and qualified.

The petitioner contends that the afore-quoted administrative regulation is

inofficious because the forfeiture prescribed is not authorized by the statute
itself and beyond the intentions of the legislature. Moreover, the
enforcement of the rule would lead to discrimination against the punong
barangay and in favor of the other kagawads, who, unlike him, could
remain in office while running for re-election and, additionally, benefit
from the equity-of-the-incumbent rule.

Alternatively, the petitioner argues that, assuming the regulation to be

valid, he was nonetheless basically also a kagawad as he was a member of
the sangguniang barangay like the other six councilmen elected with him
in 1982. In fact, Section 5 of the Rep. Act No. 6679 also speaks of seven
kagawads, the foremost of whom shall again be the punong barangay. He
concludes that he should thus be regarded as running for the same office -
and therefore not considered resigned - when he filed his certificate of
candidacy for kagawad.

The Court does not agree.

It seems to us that the challenged resolution quite clearly expresses the

mandate of the above-quoted Section 8 that all incumbent elected officials
should not be considered resigned upon the filing of their certificates of
candidacy as long as they were running for the same position. The purpose
of the resolution was merely to implement this intention, which was clearly
applicable not only to the ordinary members of the sangguniang
barangay but also to the punong barangay.

As for the questioned authority, this is found in Section 52 of the Omnibus

Election Code, which empowers the public respondent to "promulgate rules
and regulations implementing the provisions of this Code or other laws
which the Commission is required to enforce and administer x x x."

The justification given by the resolution is that the position of punong

barangay is different from that of kagawad - as in fact it is. There should be
no question that the punong barangay is an essentially executive officer, as
the enumeration of his functions in Section 88 of the Local Government
Code will readily show, unlike the kagawad, who is vested with mainly
legislative functions (although he does assist the punong barangay in the
administration of the barangay). Under Rep. Act No. 6679, the person who
wins the highest number of votes as a kagawad becomes by operation of law
the punong barangay, or the executive of the political unit. In the particular
case of the petitioner, it should be noted that he was in fact not even elected
in 1982 as one of the six councilmen but separately as the barangay
captain. He was thus correctly deemed resigned upon his filing of a
certificate of candidacy for kagawad in 1989, as this was not the position
he was holding, or was incumbent in, at the time he filed such certificate.

It is worth stressing that under the original procedure followed in the 1982
barangay elections, the petitioner was elected barangay captain directly by
the voters, separately from the candidates running for mere membership in
the sangguniang barangay. The offices of the barangay captain and
councilmen were both open to the candidates, but they could run only for
one or the other position and not simultaneously for both. By contrast, the
candidate under the present law may aspire for both offices, but can run
only for one, to wit, that of kagawad. While campaigning for this position,
he may hope and actually strive to win the highest number of votes as this
would automatically make him the punong barangay. In this sense, it may
be said that he is a candidate for both offices. Strictly speaking, however,
the only office for which he may run - and for which a certificate of
candidacy may be admitted - is that of kagawad.

It follows that the petitioner cannot insist that he was running not
for kagawad only but ultimately also for punong barangay in the 28 March
1989 election. In fact, his certificate of candidacy was for kagawad and not
for punong barangay. As the basic position being disputed in the barangay
election was that of kagawad, that of punong barangay being conferred only
by operation of law on the candidate placing first, the petitioner had to
forfeit his position of punong barangay, which he was holding when he
presented his candidacy for kagawad. Consequently, he cannot be credited
with the four contested votes for "Flores" on the erroneous ground that he
was still incumbent as punong barangay on the day of the election.

The petitioner argues that he could not have run for re-election as punong
barangay because the office was no longer subject to separate or even
direct election by the voters. That may be so, but this argument goes to the
wisdom of the law, not its validity, and is better addressed to the
legislature. From the strictly legal viewpoint, the statute does not offend
the equal protection clause, as there are, to repeat, substantial distinctions
between the offices of punong barangay and kagawad. Precisely, the reason
for divesting the punong barangay of his position was to place him on the
same footing as the other candidates by removing the advantages he would
enjoy if he were to continue as punong barangay while running
for kagawad.
In sum, we hold that Section 9 of Rep. Act No. 6679 is constitutionally
defective and must be struck down, but the challenged resolution must be
sustained as a reasonable and valid implementation of the said statute. The
petitioner was no longer the incumbent punong barangay on election day
and so was not entitled to the benefits of the equity-of-the-incumbent rule.
The consequence is that the four votes claimed by him were correctly
considered stray, making the private respondent the punong barangay of
Poblacion, Tayum, Abra, for having received the highest number of votes
for kagawad.

It remains to stress that although the elections involved herein pertain to

the lowest level of our political organization, this fact has not deterred the
highest tribunal from taking cognizance of this case and discussing it at
length in this opinion. This only goes to show that as long as a
constitutional issue is at stake, even the barangay and its officers, for all
their humility in the political hierarchy, deserve and will get the full
attention of this Court.

WHEREFORE, the petition is DISMISSED. Judgment is hereby

rendered:

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;

2. Declaring valid Section 16(3) of Com. Res. No. 2022-A dated January 5,
1989; and

3. Declaring private respondent Nobelito Rapisora the duly elected punong

barangay of Poblacion Tayum, Abra.

No pronouncement as to costs.

SO ORDERED.
EN BANC

RAYMOND P. ESPIDOL, G.R. No. 164922

Petitioner,
DECISION
CALLEJO, SR., J.:

Before the Court is the petition for certiorari and prohibition filed by
Raymond P. Espidol seeking to nullify the Resolution[1] dated August 30, 2004 of
the Commission on Elections (COMELEC) en banc in SPC No. 04-180. The said
resolution affirmed the COMELEC Second Division Resolution[2] dated July 16,
2004 annulling the petitioners proclamation as the duly-elected municipal mayor of
Ramon, Isabela, during the May 10, 2004 elections.
The Antecedents

Petitioner Raymond P. Espidol and private respondent Wilfredo L. Tabag were

rival candidates for Mayor of the Municipality of Ramon, Isabela, in the May 10,
2004 synchronized national and local elections.[3] Petitioner Espidol, a re-
electionist, was the official candidate of the Lakas ng Bansa (Lakas)-Christian
Muslim Democrats (CMD) coalition,[4] while private respondent Tabag was the
official candidate of the Partidong Demokratiko ng Pilipinas-Laban (PDP-
Laban).[5] The municipality had a total of 117 precincts.[6]

At about 6:00 p.m. of May 10, 2004, the Municipal Board of Canvassers (MBC) of
Ramon, consisting of Chairman Atty. Agripino A. De Guzman, Jr., Vice-Chairman
Pedro L. Gueco and Member-Secretary Rosalinda B. Doroni, convened at the
municipalitys Barangay Training Center to commence the canvassing.[7] Actual
canvassing started at around 3:00 a.m. of the following day or May 11, 2004, and
formally adjourned at about 8:30 p.m., with the MBC scheduling the resumption of
the canvass at 9:00 a.m. of the next day.[8]
 However, no canvassing took place on May 12 and 13, 2004 because MBC
Chairman De Guzman failed to report for work at the canvassing center.[9] In his
After-Incident-Report Memorandum for Commissioner Mehol K. Sadain,
Commissioner-in-Charge for Regions II and III, De Guzman reported that, in the
evening of May 11, 2004, just after the adjournment of the canvassing proceedings,
he and his group of tabulators were harassed and intimidated by allies and political
supporters of petitioner Espidol. De Guzman further averred that on their way to
Santiago City where they were temporarily billeted, their car was tailed by a
vehicle belonging to petitioner Espidols camp. Fearing for their safety, De Guzman
immediately requested protection from the local police. This did not allay the fears
of his staff because the next day, his group of tabulators fled back to Manila.[10]

Together with the After-Incident-Report, De Guzman submitted to

Commissioner Sadain another Memorandum[11] requesting for a transfer of the
canvassing venue to Manila citing as reason the volatile peace and order situation
in Ramon, Isabela. On May 13, 2004, Commissioner Sadain denied De Guzmans
request for a change of venue in view of the opposition of the other members of the
MBC who refuted De Guzmans claims of intimidation and harassment.[12]

On May 14, 2004, the MBC reconvened and resumed the canvassing of the
election returns. The canvassing continued until the evening of May 15, 2005.
During the said proceedings, private respondent Tabag, through his lawyers, orally
sought the exclusion of several election returns from the following precincts,
namely: Precinct Nos. 2A, 4A/7A, 10A, 49A, 52A, 57A, 66A, 93A, 95/96A,
97A/98A, 103A, 112A, 15A, 24A, 47A&B, 63A, 88A, 92A/94, 50A, 56A,
60A/62A, 74A, 83A, 121A, 123A, 114A. Private respondent Tabag objected to the
inclusion of these election returns on the following grounds: (1) that the security
envelopes containing the election returns did not have the proper seals as required
by Section 212 of the Omnibus Election Code (OEC); (2) that the election returns
did not bear the signature of the chairman of the Board of Election Inspectors
(BEI) as required by the same law; and (3) that the election returns did not have the
thumbprints of the members of the BEI in the box provided for the purpose, and in
some, the thumbprints and signatures of the BEI at the close of each entry or at the
end of each tally/taras of each candidate were superimposed on the said tally/taras,
thereby obscuring the number of votes obtained by each at the end of every
entry.[13]

Despite these objections, and without any formal or written ruling thereon,
the MBC included the contested election returns. The canvassing was concluded at
about 9:30 p.m. of May 15, 2004.[14]

In the morning of May 16, 2004, private respondent Tabag, through counsel,
filed a petition with the MBC vigorously opposing the impending proclamation on
the ground that the proceedings of the board were irregular. De Guzman read the
petition aloud. Nonetheless, at 9:00 a.m. of the same day, or barely twelve (12)
hours after the conclusion of the canvassing of votes, the MBC proceeded to
proclaim petitioner Espidol as the winning candidate for mayor, along with the
vice-mayor and eight councilors.[15] Petitioner Espidol obtained 8,647 votes as
against his closest rival, private respondent Tabag, who obtained 6,635 votes, or a
margin of 2,012 votes.[16] Minutes after the proclamation, the counsel of private
respondent Tabag submitted to the MBC his written objections to the inclusion in
the canvass of the contested election returns. The MBC did not make a formal or
written ruling thereon.[17]

On May 24, 2004, private respondent Tabag filed with the COMELEC a
petition for annulment of proclamation.[18] Named respondents therein were MBC
Chairman De Guzman, and petitioner Espidol. The petition was docketed as SPC
04-180 and raffled to the COMELEC Second Division.

In support of his petition, private respondent Tabag alleged that:

1. The MBOC acted in violation of RA 7166 and Comelec Resolution No. 2962
(6669) and with grave abuse of discretion amounting to lack of jurisdiction, in
proclaiming private respondent (Espidol) as winner despite the pending and
unresolved appeals before it, the railroading of petitions for exclusion without any
hearing and written rulings thereon, and the petitions for exclusion which were
 not acted and ruled upon by it, considering that the contested returns will
adversely affect the results of the election.

2. The proclamation by the board of private respondent as winner, is vitiated by

duress, coercion, intimidation and threats and the mob rule, and the preparation of
the election returns in certain barangays of the municipality is likewise vitiated by
intimidation and threats resulting to falsified and materially defective returns and
failure of elections and, therefore, not made freely and voluntarily as the true will
of the electorate, considering that the contested returns will affect the results of
the election.

3. The integrity, genuineness and sanctity of the contested election returns have
been violated because the security envelopes containing the election returns do
not have the proper seals provided by the commission for the purpose when
prepared by the BEI until the same were subsequently transmitted to and
canvassed by the MBOC, the election returns did not bear the signature of the
chairman of the BEIs, the election returns do not have the
thumbmarks/thumbprints of the members of the BEI in the boxes provided for the
purpose, and in some, the thumbmarks and signatures of the BEI at the close of
each entry or at the end of each tally/taras of each candidate were superimposed
on the said tally/taras thereby obscuring the number of votes obtained by each at
the end of every entry.

4. Discrepancy in the statement of votes by precinct of the MBOC where the sum
total of the number of votes obtained by the three (3) mayoralty candidates is
greater than the number of those who actually voted in all the 117 precincts of the
municipality of Ramon, Isabela.[19]

On June 9, 2004, the COMELEC Second Division issued summonses with notice
of hearing on June 17, 2004. During the said hearing, the parties made their
respective manifestations. Subsequently, petitioner Espidol was given five (5) days
to file his Answer-Memorandum, while private respondent Tabag and De Guzman
were also given the same period to file their respective memoranda. On June 21,
2004, private respondent Tabag filed his Memorandum, while petitioner Espidol
and De Guzman filed their respective Answer-Memoranda on June 22, 2004.[20]

In his Answer-Memorandum,[21] petitioner Espidol contended that the

grounds raised by private respondent Tabag were not proper for a pre-proclamation
controversy. Moreover, the latter did not raise his objections properly. Petitioner
Espidol also refuted private respondent Tabags allegations of massive vote buying,
threats and intimidation.

For his part, MBC Chairman De Guzman, in his Answer-

Memorandum,[22] admitted that the board did not make any formal or written
rulings on the objections raised by private respondent Tabag. De Guzman averred
that there were persistent threats and intimidation which constrained him to hastily
finish the canvassing. In fact, two of the tabulators with him (De Guzman) who
were from Manila went home without finishing their task of tabulating because of
fear for their safety. These tabulators from Manila, were replaced with local
municipal employees.

Acting on the pleadings filed by the parties, the COMELEC Second Division
issued the Order[23] dated June 23, 2004 suspending the effects of petitioner
Espidols proclamation:

Due to the seriousness of the allegation that the Board of Canvassers

issued the proclamation even before questions involving the validity of returns
which will affect the result of the election are resolved by the Commission, which
is clearly in violation of the above mandated procedure, and, further, that the
proclamation of private respondent [referring to Espidol] as the Mayor-elect of
the Municipality of Ramon, Isabela was allegedly issued under duress, and with
intimidation, coercion and threats, the Commission (Second Division) hereby
orders that the effect of the proclamation of private respondent Raymond P.
Espidol be suspended until the issues raised on the irregularities and alleged
duress in the issuance of the proclamation be resolved on the merit.

WHEREFORE, premises considered, the Second Division of the

Commission hereby SUSPENDS THE EFFECT OF THE PROCLAMATION of
private respondent Raymond P. Espidol, with the note that the instant petition
shall be resolved on the merit with dispatch.

SO ORDERED.[24]
In defiance of the said order, petitioner Espidol took his oath of office as Mayor of
Ramon, Isabela on June 25, 2004.[25] Consequently, on June 26, 2004, private
respondent Tabag filed with the COMELEC an urgent motion to annul the oath of
petitioner Espidol and to restrain him from assuming the duties and functions of
the Municipal Mayor of Ramon, Isabela. Private respondent Tabag also prayed that
petitioner Espidol be cited for contempt for blatantly disregarding the June 23,
2004 Order.[26]

On June 29, 2004, the COMELEC Second Division, acting on the urgent
motion, issued an Order, the fallo of which stated thus -

WHEREFORE, premises considered, respondent [referring to petitioner

Espidol] is hereby directed to submit his comment to the above motion within five
(5) days from notice. A stern warning is further directed upon respondent to
refrain from committing acts which are in contravention of the Commissions June
23, 2004 Order and which tend to obstruct the proper resolution by the
Commission of the present controversy, lest a severe sanction shall be imposed
upon the same.

SO ORDERED.[27]

Notwithstanding the two orders, on June 30, 2004 the beginning of the term of
office of all elective officials Espidol assumed office as Mayor of Ramon, Isabela
and has since been discharging its functions and duties.

On July 16, 2004, the COMELEC Second Division promulgated the

Resolution[28] declaring petitioner Espidols proclamation illegal. It held that the
MBC failed to give private respondent Tabag 24 hours from the time of his oral
objections to submit his evidence in support thereof, in gross violation of Section
20 (c) of Republic Act (R.A.) No. 7166. Worse, the MBC acted without authority
when it proclaimed petitioner Espidol as the duly elected Mayor of Ramon,
Isabela, without making any written rulings on the objections raised by private
respondent Tabag, in gross violation of paragraph (i) of the same provision. It
further ruled that MBC was pressured, coerced, threatened and intimidated by
petitioner Espidol in order to proclaim him. Further, the COMELEC Second
Division opined that since the number of the votes cast for the mayoralty position
exceeded the number of registered voters who actually voted by 858 as reflected in
the Statement of Votes (SOV), there was enough basis to annul petitioner Espidols
proclamation. The dispositive portion of the resolution reads:
WHEREFORE, premises considered, the Petition to Annul the
Proclamation of Respondent Raymond P. Espidol, as Mayor of Ramon, Isabela, is
hereby GRANTED; consequently, the proclamation of Respondent Raymond P.
Espidol is hereby declared NULL and VOID. A Municipal Board of Canvassers
shall be reconstituted to conduct a re-canvassing of the election returns strictly
adhering to the prescribed procedures for canvassing and in handling contested
election returns; meanwhile, the Vice-Mayor elect shall temporarily assume the
mayoralty post as Acting Mayor, until further notice; furthermore, the Provincial
Commanding Officer of the Philippine National Police in the Province of Isabela
is hereby deputized, together with the Chief of Police of the Municipality of
Ramon, Isabela, to assist the Election Officer of the same municipality, in
ensuring that this resolution be immediately enforced. Let a copy of this
resolution be furnished to the Department of Interior and Local Government for
their information and guidance in implementing the provision on temporary
succession in the local government as provided in the Local Government Code.

The charge of indirect contempt against respondent Raymond P. Espidol shall be

treated as a separate case and subjected to a hearing in compliance with the
requirements of due process. Petitioner is further advised that the appropriate
complaint for election offense against the alleged offenders be filed with the
Commission.

SO ORDERED.[29]

On July 21, 2004, petitioner Espidol filed a motion for reconsideration with
the COMELEC Second Division.[30]
On August 30, 2004, the COMELEC en banc promulgated its
Resolution[31] affirming in toto the COMELEC Second Divisions Resolution of
July 16, 2004. The dispositive portion of the COMELEC en bancs resolution
reads:

WHEREFORE, premises considered, the Commission En Banc hereby

DENIES the Motion for Reconsideration of Private Respondent for lack of merit
and AFFIRMS the Resolution of the Second Division of the Commission
ANNULLING THE PROCLAMATION of Private Respondent Raymond
Espidol. We further AFFIRM the Second Divisions issuance of the interlocutory
 order SUSPENDING THE EFFECT OF THE PROCLAMATION of Private
Respondent Raymond Espidol. We further emphasize that private respondent
Raymond Espidol has no authority to assume the Office of the Mayor from the
very beginning or on June 30, 2004, his proclamation being null and void ab
initio. Private respondent Raymond Espidol is hereby directed to physically
vacate the Office of the Mayor for having no authority to assume and remain
therein. Accordingly, as provided in the Local Government Code, the Vice-Mayor
is hereby directed to assume the Office of the Mayor temporarily until the
controversy as to who shall assume the post shall have been resolved. Let a copy
of this resolution be issued to the Department of Interior and Local Government
and the Philippine National Police for their information and guidance.
Furthermore, the Provincial Commander of the Philippine National Police of the
Province of Isabela, as assisted by the Municipal Chief of Police of Ramon,
Isabela is hereby DEPUTIZED TO ASSIST the Election Officer of Ramon,
Isabela or any authorized representative of the Commission on Elections, and
ENSURE that this resolution be ENFORCED.

SO ORDERED.[32]

The COMELEC en banc affirmed the findings of the Second Division as it held
that the proclamation of petitioner Espidol is null and void for having been made
amidst questionable circumstances, particularly by railroading the proclamation, as
admitted by the Chairman of the MBC, when he failed or refused to follow the
canvassing procedure, especially the issuance of written rulings in the disposition
of objected election returns. This fact, according to the COMELEC en banc, is also
revealed by the minutes of the board of canvassers when no report was made that
written rulings were issued in the disposition of the objections to the election
returns. The COMELEC en banc thus ruled that the Second Division was correct
in preliminarily suspending the effects of petitioner Espidols proclamation and
eventually annulling the same.

The COMELEC en banc opined that while it is true that after a winning
candidate has been proclaimed, the remedy of a losing candidate is to file an
election protest, such rule is applicable only when there has been a valid
proclamation. It likewise debunked petitioner Espidols interpretation of Section
20(c) of R.A. No. 7166 that oral and written objections on election returns must be
simultaneously, i.e., without interval of time, submitted to the board. It
characterized this interpretation as too constricting. Rather, the COMELEC en
banc ratiocinated, an objecting candidate may still submit his written objection and
evidence in support thereof within 24 hours from making the oral objection. It
concluded that election cases are imbued with public interest and laws governing
election contests must be liberally construed to the end that the true wishes of the
electorate prevail.

Commissioner Virgilio O. Garcillano dissented from the COMELEC en

bancs Resolution of August 30, 2004 as he voted to reconsider the Resolution of
the Second Division. Commissioner Garcillano was of the
view that the [b]oard correctly included the contested election returns in the
canvass as they did not suffer any serious infirmities affecting their integrity.[33]

Aggrieved, petitioner Espidol sought recourse to the Court by filing the present
Petition for Certiorari and Prohibition with Prayer for Temporary Restraining
Order, Maintenance of Status quo and/or Writ of Preliminary Injunction.

In the Resolution[34] dated September 7, 2004, the Court directed the parties to
observe the status quo prevailing before the filing of the petition.

Petitioner Espidol proffers the following issues for the Courts resolution:
I
Did respondent COMELEC commit grave abuse of discretion amounting to lack
or excess of jurisdiction when it resolved to affirm the 16 July 2004 Resolution of
the COMELEC Second Division which erroneously held that the MBC of Ramon,
Isabela did not follow the prescribed procedure in disposing the private
respondents objection to certain ERs[?]

II
Did respondent COMELEC commit grave abuse of discretion amounting to lack
or excess of jurisdiction when it held that the petitioners proclamation was
vitiated by threat, intimidation, coercion and duress[?]

III
Did respondent COMELEC commit grave abuse of discretion [a]mounting to lack
or excess of jurisdiction when it suspended the effects of the petitioners
proclamation[?][35]
 Petitioner Espidol contends that De Guzmans tale of threats and intimidation
should have been taken by the COMELEC with a grain of salt. It being patently
baseless and totally fabricated, the COMELEC gravely abused its discretion in
swallowing the same hook, line and sinker. Petitioner Espidol also assails the
COMELEC Second Divisions interlocutory order suspending the effects of his
proclamation, claiming that the same was issued without the required notice and
hearing.

Petitioner Espidol further argues that the grounds invoked by private

respondent Tabag, i.e., lack of inner paper seals, lack of signature of BEI chairman,
absence of thumbmarks on the election returns, among others, are merely defects
in form and not proper subjects of a pre-proclamation controversy. Citing
jurisprudence, petitioner Espidol emphatically asserts that the enumeration in
Section 243 of the Omnibus Election Code (OEC) of the issues that may be raised
in a pre-proclamation controversy is restrictive and exclusive.

He maintains that even assuming that the grounds relied upon by private
respondent Tabag were proper issues in a pre-proclamation controversy, the MBC,
nonetheless, correctly included the orally objected election returns in the
canvassing since the latters oral objections were not reduced into writing and
simultaneously filed with the board as required by Section 20 of R.A. No. 7166.
Petitioner Espidol posits that Section 245 of the OEC, which allows the filing of
the written objection within 24 hours from the time the oral objection was made,
has been amended by Section 20 of R.A. No. 7166 which now requires both oral
and written objections to be simultaneously filed with the MBC. Thus, there was
allegedly no need for the MBC to make any written rulings on the objections made
by private respondent Tabag because these were not raised properly or in the
manner prescribed by Section 20 of R.A. No. 7166.

Petitioner Espidol points out that private respondent Tabags remedy is not
the exclusion of the contested election returns, but that provided under Section 234
of the OEC, thus
 Section 234. Material defects in the election returns. If it should clearly
appear that some requisites in form or data had been omitted in the election
returns, the board of canvassers shall call for all members of the board of election
inspectors concerned by the most expeditious means, for the same board to effect
the correction.

Provided, That in case of the omission in the election returns of the name
of any candidate and/or his corresponding votes, the board of canvassers shall
require the board of election inspectors concerned to complete the necessary data
in the election returns and affix therein their initials: Provided, further, That if the
votes omitted in the returns cannot be ascertained by other means except by
recounting the ballots, the Commission, after satisfying itself that the identity and
integrity of the ballot box have not been violated, shall order the board of election
inspectors to open the ballot box, and, also after satisfying itself that the integrity
of the ballots therein has been duly preserved, order the board of election
inspectors to count the votes for the candidate whose votes have been omitted
with notice thereof to all candidates for the position involved and thereafter
complete the returns.

The right of a candidate to avail of this provision shall not be lost or

affected by the fact that an election protest is subsequently filed by any of the
candidates.

In his Comment,[36] private respondent Tabag supports the findings of the

COMELEC. In addition, he avers that the petition is defective since it failed to
implead Vice-Mayor Mercedez M. Vizcarra, who is now the Acting Mayor of
Ramon, Isabela. He argues that Vice-Mayor Vizcarra is an indispensable party
without whom no final determination of the action may be had.

The petition is bereft of merit.

Section 20 of R.A. No. 7166 outlines the procedure for the disposition of
contested election returns, thus:

SECTION 20. Procedure in Disposition of Contested Election Returns.

(a) Any candidate, political party or coalition of political parties contesting

the inclusion or exclusion in the canvass of any election returns on any of the
grounds authorized under Article XX or Section 234, 235 and 236 of Article XIX
of the Omnibus Election Code shall submit their oral objection to the chairman of
the board of canvassers at the time the questioned return is presented for inclusion
in the canvass. Such objection shall be recorded in the minutes of the canvass.

(b) Upon receipt of any such objection, the board of canvassers shall
automatically defer the canvass of the contested returns and shall proceed to
canvass the returns which are not contested by any party.

(c) Simultaneous with the oral objection, the objecting party shall also
enter his objection in the form for written objections to be prescribed by the
Commission. Within twenty-four (24) hours from and after the presentation of
such an objection, the objecting party shall submit the evidence in support of the
objection, which shall be attached to the form for written objections. Within the
same period of twenty-four (24) hours after presentation of the objection, any
party may file a written and verified opposition to the objection in the form also to
be prescribed by the Commission, attaching thereto supporting evidence, if any.
The board shall not entertain any objection or opposition unless reduced to
writing in the prescribed forms.
The evidence attached to the objection or opposition submitted by the
parties, shall be immediately and formally admitted into the records of the board
by the chairman affixing his signature at the back of each and every page thereof.

(d) Upon receipt of the evidence, the board shall take up the contested
returns, consider the written objections thereto and opposition, if any, and
summarily and immediately rule thereon. The board shall enter its ruling on the
prescribed form and authenticate the same by the signatures of its members.

(e) Any party adversely affected by the ruling of the board shall
immediately inform the board if he intends to appeal said ruling. The board shall
enter said information in the minutes of the canvass, set aside the returns and
proceed to consider the other returns.

(f) After all the uncontested returns have been canvassed and the contested
returns ruled upon by it, the board shall suspend the canvass. Within forty-eight
(48) hours therefrom, any party adversely affected by the ruling may file with the
board a written and verified notice of appeal; and within an unextendible period
of five (5) days thereafter, an appeal may be taken to the Commission.

(g) Immediately upon receipt of the notice of appeal, the board shall make
an appropriate report to the Commission, elevating therewith the complete records
and evidence submitted in the canvass, and furnishing the parties with copies of
the report.

(h) On the basis of the records and evidence elevated to it by the board, the
Commission shall decide summarily the appeal within seven (7) days from receipt
of the said records and evidence. Any appeal brought before the Commission on
 the ruling of the board, without the accomplished forms and the evidence
appended thereto, shall be summarily dismissed.

The decision of the Commission shall be executory after the lapse of seven
(7) days from receipt thereof by the losing party.

(i) The board of canvassers shall not proclaim any candidate as winner
unless authorized by the Commission after the latter has ruled on the objections
brought to it on appeal by the losing party. Any proclamation made in violation
hereof shall be void ab initio, unless the contested returns will not adversely affect
the results of the election.[37]

Clearly, the MBC violated its duty under paragraph (d) of Section 20 of R.A.
No. 7166 to enter its rulings, particularly on those objections that have been
reduced to writing, on the prescribed form and authenticate the same by the
signatures of its members. De Guzman, the Chairman of the MBC, in his answer-
memorandum filed with the COMELEC Second Division, admitted that the MBC
did not make any written ruling vis--vis private respondent Tabags objections, even
those made in writing.

Petitioner Espidol maintains that the MBC could not be faulted for not
making any written rulings on private respondent Tabags objections because most
were not reduced to writing as required by paragraph (c) of Section 20 of R.A. No.
7166. Further, those objections made in writing were not allegedly simultaneously
submitted with the oral objections. According to petitioner Espidol, the word
simultaneous in Section 20 (c) of R.A. No. 7166 should be construed strictly in
view of its mandatory nature.

This proffered construction fails to persuade. As correctly ruled by the

COMELEC en banc and the Second Division, the word simultaneous must not be
given a strict and constricting meaning. Submission of the written objection within
24 hours from when the oral objection was made is substantial compliance with the
law. The COMELEC en bancs ratiocination on this point is quoted with approval:

There is no debate that an oral objection must be reduced into writing.

Even the case laws cited by private respondent [referring to Espidol] assert the
same requirement. However, there was never any discussion that the same shall
be submitted at the same moment as the oral objection. The requirement therefore
that written objections must be submitted simultaneously is just limited to the
provision itself.

To advance, therefore, the technical interpretation of the word

simultaneous, is to require that written objections should be submitted at the same
time with the oral objection. The fact that the rule speaks of an oral objection
separate from the written contemplates that both forms may be submitted at
different moments, as long as this is done within reasonable time. Hence, if a
counsel submits his written objection an hour later, the same may be considered
compliance with the rule. The same may be the situation if counsel may submit
written objections at the end of the canvassing for the day. The question,
therefore, is up to when reasonable time be in the submission of written
objections.

The interpretation must be put in the context of the whole process of

disposing objected returns. Considering that the objections have to be ruled upon
by the board of canvassers based on the evidence which are required to be
submitted within twenty-four (24) hours, the board, therefore, has to wait for at
least twenty-four (24) hours, before they could rule on the objection. Hence, even
if the board already has written objections with them, they still cannot rule on the
same until the evidence has been submitted within twenty-four (24) hours.

It is therefore, the consideration of this Commission that the board of

canvassers should not rule on the objections of the parties until the twenty-four-
hour (24) period has lapsed, unless they already have with them the written
objections as well as the evidence. In that case, submission of written objections
within twenty-four (24) hours together with the evidence, may be considered
substantial compliance with the rule.[39]
Petitioner Espidol likewise justifies the MBCs failure to rule on the
objections of private respondent Tabag by stating that these were not proper for
pre-proclamation controversy; hence, the dismissal thereof by the MBC was
proper. This contention deserves scant consideration.
 A pre-proclamation controversy is defined as referring to any question
pertaining to or affecting the proceedings of the board of canvassers which may be
raised by any candidate or by any registered political party or coalition of political
parties before the board or directly with the Commission, or any matter raised
under Sections 233, 234, 235 and 236 in relation to the preparation, transmission,
receipt, custody and appreciation of the election returns.[40] Issues that may be
raised in a pre-proclamation controversy are as follows:
(a) Illegal composition or proceedings of the board of canvassers;

(b) The canvassed election returns are incomplete, contain material defects,
appear to be tampered with or falsified, or contain discrepancies in the same
returns or in another authentic copies thereof as mentioned in Sections 233, 234,
235 and 236 of this Code;

(c) The election returns were prepared under duress, threats, coercion or
intimidation, or they are obviously manufactured or not authentic; and

(d) When substitute or fraudulent returns in controversy polling places were

canvassed, the results of which materially affected the standing of the aggrieved
candidate or candidates.[41]

Admittedly, the Court had the occasion to state that lack of inner paper seals
in the election returns does not justify their exclusion from canvassing and that
such is not proper subject of a pre-proclamation controversy.[42] However, in the
present case, aside from the lack of inner paper seals, private respondent Tabag
raised other grounds for the exclusion of certain election returns, including lack of
signature of the Chairman of the BEI and absence of thumbmarks of the members
of the BEI.

The signatures and thumbmarks of the BEI members are required to be

affixed on the election returns under Section 212 of the OEC, which states in part:
Sec. 212. Election returns. The board of election inspectors shall prepare the
election returns simultaneously with the counting of the votes in the polling place
as prescribed in Section 210 hereof. The return shall be prepared in sextuplicate.
The recording of votes shall be made as prescribed in said section. The entry of
votes in words and figures for each candidate shall be closed with the signature
 and the clear imprint of the thumbmark of the right hand of all the members,
likewise to be affixed in full view of the public, immediately after the last vote
recorded or immediately after the name of the candidate who did not receive any
vote.

If the signatures and/or thumbmarks of the members of the board of election

inspectors or some as required in this provision are missing in the election returns,
the board of canvassers may summon the members of the board of election
inspectors concerned to complete the returns.

In relation thereto, the pertinent proviso of Section 234 of the OEC is quoted anew:
Sec. 234. Material defects in the election returns. If it should appear that some
requisites in form or data had been omitted in the election returns, the board of
canvassers shall call for all the members of the board of election inspectors
concerned by the most expeditious means, for the same board to effect the
correction

Consequently, the absence of these signatures and thumbmarks rendered the

said election returns materially defective and, therefore, proper subject of a pre-
proclamation controversy particularly falling under paragraph (b) of Section 243 of
the OEC which is quoted anew:
(b) The canvassed election returns are incomplete, contain material
defects, appear to be tampered with or falsified, or contain discrepancies in the
same returns or in another authentic copies thereof as mentioned in Sections
233, 234, 235 and 236 of this Code;

Granting arguendo that the objections interposed by private respondent

Tabag were not proper for a pre-proclamation controversy, nonetheless, the MBC
should have made written rulings thereon. Under Section 20 of R.A. No. 7166, the
board of canvassers is mandated to grant an objecting party 24 hours from the time
of the presentation of the oral objection to submit its evidence. Thereafter, the
other party is also given 24 hours to submit its opposition. If no opposition has
been filed, the board shall rule on the objections and enter its ruling in the
prescribed form and authenticate the same with the signatures of the members of
the board. As earlier opined, De Guzman, as Chairman of the MBC, admitted in
his Answer-Memorandum that the board did not make any written rulings on the
objections interposed by private respondent Tabag, including those reduced to
writing.

The requirement that the board of canvassers reduce to writing its rulings is
mandatory:
It is clear from this provision that the board of canvassers is under the obligation
to make a written ruling on the formal objections made by any of the parties, who
may then appeal the same to the COMELEC. It is equally clear that the failure or
refusal of the board of canvassers to discharge this obligation should not in any
way prejudice the objecting partys right to elevate the matter to the COMELEC
for proper review. Otherwise, all that a board of canvassers partial to one of the
candidates has to do to favor him would be to refuse to make a written ruling on
his opponents objections and thereby prevent their review by the COMELEC.[43]

The Court notes that during the final day of the canvassing, or on May 15,
2004, private respondent Tabag made oral objections to the inclusion of several
election returns. The canvassing concluded at about 9:30 p.m. of the said day.
Barely 12 hours thereafter, or at 9:00 a.m. of May 16, 2004, the MBC proclaimed
petitioner Espidol as the mayor-elect of Ramon, Isabela. By so doing, the MBC
effectively deprived private respondent Tabag of the opportunity to seasonably
substantiate his oral objections with evidence and submit the corresponding written
objections. The proclamation of petitioner Espidol was clearly made with undue
haste, considering that it was made even before the lapse of the 24-hour period
given to private respondent Tabag under Section 20(c) of R.A. No. 7166 to submit
the evidence and written objections in support of his oral objections. In other
words, the MBC, without awaiting for or considering private respondent Tabags
evidence and written objections to support his oral objections and, consequently,
without any lawful ruling thereon, proclaimed petitioner Espidol.

In the process, the MBC not only deprived private respondent Tabag of the
right to appeal its ruling to the COMELEC, it likewise deprived the latter body to
rule on the objections of private respondent Tabag. Such act of the MBC violated
Section 20 (i) of R.A. No. 7166, quoted again below:
(i) The board of canvassers shall not proclaim any candidate as winner unless
authorized by the Commission after the latter has ruled on the objections brought
 to it on appeal by the losing party. Any proclamation made in violation hereof
shall be void ab initio, unless the contested returns will not adversely affect the
results of the election.

The following pronouncement in Jamil v. Comelec[44] is likewise instructive:

It is our considered view that both proclamations of petitioner and private
respondent are invalid.

Clear it is that petitioner Jamil was proclaimed on June 26, 1995 after Casan
Macadato, chairman of the second MBC, conducted an investigation with respect
to the inclusion or exclusion of the returns from Precinct Nos. 5, 10-1 and 20-1
and after he submitted his investigation report, which he alone signed, to the
COMELEC on June 5, 1995 merely recommending the inclusion of the three (3)
returns in the canvass. As we have mentioned above, said investigation report was
not in form or substance a ruling of the MBC because it did not make a definitive
pronouncement or disposition resolving the issues regarding the questioned
returns but only a recommendation to the COMELEC. There being no ruling on
the inclusion or exclusion of the disputed returns, there could have been no
complete and valid canvass which is a prerequisite to a valid proclamation.[45]

In addition, it is significant to note that the COMELEC Second Division

found a discrepancy between the number of votes cast for the
mayoralty candidates and the number of registered voters who actually voted.
Upon verification of the SOV, the COMELEC Second Division discovered that the
total number of those who actually voted was 17,207; on the other hand, the total
number of votes cast for the mayoralty candidates added up to 18,065, hence,
exceeding the total number of those who actually voted by 858. This finding was
affirmed by the COMELEC en banc.

Pertinently, in Duremdes v. COMELEC,[46] cited by the COMELEC Second

Division, the Court affirmed the COMELECs nullification of the proclamation of a
candidate for the Vice-Governor as there existed discrepancies between the
number of votes appearing in the SOV and that in the election returns. According
to the Court in the said case, any error in the Statement of Votes would affect the
proclamation made on the basis thereof. The true will of the electorate may thus be
not fully and faithfully reflected by the proclamation[47]
 Equally damaging to petitioner Espidols cause is the admission made by De
Guzman in his Answer-Memorandum of the presence of threats and intimidation
that constrained him to hastily finish the canvassing and proclamation. [48] The
following disquisition of the COMELEC Second Division with respect to the
discrepancy in the SOV and the presence of threats and intimidation is apropos:
The above discrepancy may not overturn the alleged lead of respondent [referring
to Espidol] from petitioner [referring to Tabag] but such figure tells of the fact
that a deliberate attempt to pad ones votes may have transpired, and the
Commission cannot just close its eyes to this travesty of the integrity of the
electoral process. In addition to this, when We consider all the other
circumstances surrounding the canvassing of the returns in Ramon, Isabela,
including the admission of the MBOC Chairman of the presence of threats and
intimidation, as well as the irregularities in the accomplishment of the election
returns as found during the canvassing, We are lead to conclude that the
proceedings of the MBOC in Ramon, Isabela has been irregular and that the same
has been vitiated with threats and intimidation, hence, annulment of Respondents
proclamation is in order.[49]

Under the foregoing circumstances, the COMELEC did not commit grave abuse of
discretion when it nullified the proclamation of petitioner Espidol. In a long line of
cases, the Court has affirmed the power of the COMELEC to annul an illegal
canvass and proclamation.[50]

Lastly, petitioner Espidol decries that he was deprived of due process when
the COMELEC Second Division issued the Order dated June 23, 2004 suspending
the effects of his proclamation. The records, however, belie this claim, as it has
been shown that on June 9, 2004, the COMELEC issued summonses with notice of
the hearing set on June 17, 2004; on the said date, respective counsel of petitioner
Espidol and private respondent Tabag attended the hearing; after making their
respective manifestations, petitioner Espidols counsel was given five (5) days to
file his answer-memorandum; and on June 22, 2004, petitioner filed his Answer-
Memorandum.
 The fact that the order of the COMELEC Second Division suspending the
effects of petitioner Espidols proclamation was issued a day after he filed his
Answer-Memorandum does not mean that the order was tainted with irregularity.
As the COMELEC en banc explained

The order to suspend the effect of private respondents [referring to petitioner

Espidol] proclamation is an interlocutory order based on a prima facie finding that
the allegations raised by the petitioner have merits. It is also intended to prevent
private respondent from having the advantage of incumbency, hence, depriving
him of the possibility of delaying the resolution of this case and of a possible
election protest. If, on the other hand, private respondent is confident that he is the
true winner of the election then such fact will come out during the re-canvassing
of the election returns. However, if he has something to hide then his best
strategy, indeed, is to grab the proclamation, assume the office and delay any
controversy or protest filed against him until the end of the term of the subject
office.

Such interlocutory order was eventually justified by the actuation of private

respondent of taking his oath of office and in actually assuming the post of Mayor
despite the order suspending the effect of his proclamation. His counsel should
have advised him to follow the order of the Commission and push for the
immediate resolution of the controversy so that any doubt as regards his
proclamation will immediately be erased, unless, such doubt is corroborated
during the re-canvassing of the election returns.[51]

In administrative proceedings, the essence of due process is simply an

opportunity to be heard, or an opportunity to explain ones side or opportunity to
seek a reconsideration of the action or ruling complained of.[52] Clearly, petitioner
Espidol was given full opportunity to present his side on the petition for annulment
filed by private respondent Tabag.

It bears reiterating, at this point, that the Court has given its imprimatur on
the principle that the COMELEC is with authority to annul any canvass and
proclamation illegally made.[53] The fact that a candidate illegally proclaimed has
assumed office is not a bar to the exercise of such power.[54] It is also true that as a
general rule, the proper remedy after the proclamation of the winning candidate for
the position contested would be to file a regular election protest or quo
warranto.[55] This rule, however, admits of exceptions and one of those is where
the proclamation was null and void.[56] In such a case, i.e., where the proclamation
is null and void, the proclaimed candidates assumption of office cannot deprive the
COMELEC of the power to declare such proclamation a nullity.[57]
The rationale therefor is aptly elucidated thus:
We draw from past experience. A pattern of conduct observed in past
elections has been the pernicious grab-the-proclamation-prolong-the-protest-
slogan of some candidates or parties. Really, were a victim of a proclamation to
be precluded from challenging the validity thereof after that proclamation and the
assumption of office thereunder, baneful effects may easily supervene. It may not
be out of place to state that in the long history of election contests in this country,
as served in Lagumbay v. Climaco, successful contestant in an election protest
often wins but a mere pyrrhic victory, i.e., a vindication when the term of office is
about to expire or has expired. Protests, counter-protests, revisions of ballots,
appeals, dilatory tactics, may well frustrate the will of the electorate. And what if
the protestant may not have the resources and an unwavering determination with
which to sustain a long drawn-out election contest? In this context therefore all
efforts should be strained as far as is humanly possible to take election returns out
of the reach of the unscrupulous; and to prevent illegal or fraudulent proclamation
from ripening into illegal assumption of office.[58]

All told, the COMELEC en banc did not commit grave abuse of discretion in
affirming in toto the resolution of the Second Division annulling the proclamation
of petitioner Espidol.

WHEREFORE, the petition is DISMISSED. The Resolution dated August

30, 2004 of the COMELEC en banc in SPC No. 04-180 is AFFIRMED in toto.
The status quoorder issued on September 7, 2004 is hereby set aside.

This decision is immediately executory.

SO ORDERED.
G.R. No. 145802 April 4, 2001

DOMINADOR T. BELAC, petitioner,

vs.
COMMISSION ON ELECTIONS and ROMMEL DIASEN, respondents.

SANDOVAL-GUTIERREZ, J.:

This is a petition for certiorari and prohibition with prayer for a temporary restraining order and
preliminary injunction, assailing the Resolutions dated February 22, 2000 and November 16, 2000 of
the Commission on Elections (COMELEC) en banc in SPC No. 98-170.

The facts as shown by the records are:

Rommel Diasen of the LAMMP and Dominador Belac of the LAKAS-NUCD were candidates for
governor in the province of Kalinga during the May 11, 1998 national and local elections.

On May 14, 1998, the Provincial Board of Canvassers started to canvass the results of the election.

On May 15, 1998, when the Certificate of Canvass and Statement of Votes for the municipality of
Pinukpuk were scheduled for canvassing, Diasen objected to the inclusion of the election returns of
42 precincts in the said municipality.

On May 19, 1998, Diasen also questioned the inclusion of the election returns of 28 precincts of the
town of Tinglayan.

Within twenty-four (24) hours therefrom, Diasen filed with the Kalinga Provincial Board of
Canvassers a petition for exclusion of the Certificates of Canvass and Statements of Votes for
Pinukpuk and Tinglayan, alleging in the main that:

1. The Certificates of Canvass and Statements of Votes were not prepared by the Board of Election
Inspectors as the same were not signed by the respective watchers for the candidates' political
parties.

2. There were discrepancies in the tally of votes. The official LAMMP copies of the official returns
have a lesser number of votes than those appearing in the Statements of Votes for the said
municipalities.

However, the Provincial Board of Canvassers proceeded to include in its canvass the results as
stated in the election returns for Pinukpuk. On Diasen's objection to the inclusion of the election
returns for Tinglayan, the Board ruled that it will only issue a certificate of correction since the
discrepancies were caused by mere error in indicating the entries.

On May 19, 1998, the Provincial Board of Canvassers proclaimed Belac as the duly elected
governor for the province of Kalinga.

On May 21, 1998, Diasen appealed to the COMELEC (First Division) from the rulings of the
Provincial Board of Canvassers.

On June 4, 1998, the COMELEC (First Division) issued a Resolution dismissing Diasen's appeal for
lack of merit, thus:
 "Wherefore, premises considered, the appeal is hereby dismissed for lack of merit. The
rulings of the Provincial Board of Canvassers on the petition for exclusion of Certificate of
Canvass and Statement of Votes are hereby affirmed. The Provincial Board of Canvassers
for Kalinga is hereby directed to reconvene and continue with the canvassing with
reasonable dispatch and proclaim the winning candidate if the votes from the four precincts
of Tinglayan, Kalinga where there was failure of elections would not materially affect the
results of the election.

"Considering that the records of the case show that additions in the COCs and SOVs of
Pinukpuk for the votes of gubernatorial candidate Dominador Belac were made, the Law
Department is directed to conduct a preliminary investigation for the commission of an
election offense against the members of the Municipal Board of Canvassers of Pinukpuk,
Kalinga.

"The Law Department is similarly directed to conduct an immediate investigation on the

possible commission of electoral fraud as alluded to in the ultimate paragraph before the
herein dispositive portion. The Election Officer of Pinukpuk is directed immediately to cause
the transfer of the Book of Voters for the 69 precincts of Pinukpuk to the Comelec Main
Office [c/o Law Department] for this purpose."

On June 19, 1998, Diasen filed a motion for reconsideration of the above Resolution which was
elevated to the COMELEC en banc.

While the said motion was pending resolution in the COMELEC en banc, the Chairman of the
Provincial Board of Canvassers, Atty. Nicasio Aliping, convened the Board by calling the two other
members in order to proclaim Belac as the new governor. But the two members declined, so only
Atty. Aliping proceeded with Belac's proclamation.

On June 28, 1998, Diasen filed with the COMELEC a separate petition (SPC No. 98-291) to dispute
the proclamation of Belac.

Meanwhile, on February 22, 2000, or almost two years after the filing of Diasen's motion for
reconsideration on June 19, 1998, the COMELEC en banc promulgated the first assailed Resolution
modifying the ruling of the First Division, thus:

"WHEREFORE, premises considered, the resolution of the Commission (First Division)

subject of the instant Motion for Reconsideration is hereby modified as follows:

"1) The Provincial Board of Canvassers for Kalinga is hereby directed to proceed with the
canvassing of votes for the office of the provincial governor deducting from the Certificates of
Canvass of the Municipalities of Tinglayan and Pinukpuk the votes reflected on the election
returns from the above-excluded precincts and thereafter proclaim the winning candidate for
governor;

"2) The directive to the Law Department to conduct appropriate investigations is affirmed
with the modification, however, that the Board of Election Inspectors concerned for the
municipalities of Pinukpuk and Tinglayan, as well as John Does, be likewise investigated for
possible collusion in the commission of the election offense and election anomaly, subject of
petitioner's case."

The above Resolution was penned by Commissioner Manolo Gorospe, concurred in by

Commissioners Japal Guiani and Luzviminda Tancangco. Chairman Harriet Demetriou and
Commissioner Julio Desamito joined Commissioner Teresita Dyliacco Flores in her dissent. In short,
the voting was 3-3.

In view of the results of the voting, Belac filed a motion praying that the COMELEC en banc desist
from implementing the February 22, 2000 Resolution in favor of Diasen, citing Section 6, Rule 18 of
the COMELEC Rules of Procedure.1 The COMELEC granted the motion in its February 24, 2000
order and set the re-hearing on March 9, 2000.

On February 28, 2000, pursuant to the COMELEC en banc's February 22, 2000 Resolution, the
Provincial Board of Canvassers proclaimed Diasen as the duly elected governor. On the same date,
Diasen took his oath of office as governor of Kalinga Province.

On March 9, 2000, after receiving Atty. Aliping's Report on March 3, 2000 on Diasen's proclamation,
the COMELEC en banc issued an order:

"1. To direct Rommel Diasen to cease and desist from discharging the duties and functions
of the Office of the Governor of Kalinga Province until further orders of this Commission
during the pendency of this case;

"2. To require both parties to comment on the report of Atty. Nicasio M. Aliping, Jr., Regional
Election Attorney and Chairman of the Provincial Board of Canvassers of Kalinga, . . ., and to
include in said comment why the proceedings of the Provincial Board of Canvassers on
February 25, 2000 and the subsequent proclamation of Atty. Rommel Diasen on 28 February
2000 be declared null and void."

Thereafter, the COMELEC en banc re-scheduled the re-hearing of Diasen's motion for
reconsideration (in view of the 3-3 voting) set on March 9 to March 23, 2000. The parties agreed to
file their respective memoranda.

Meanwhile, on October 3, 2000, the COMELEC (Second Division) issued a Resolution in SPC Case
No. 98-291 declaring null and void the proclamation of Belac as governor, holding that:

"The proclamation of respondent Belac by the PBC Chairman alone-against the votes of the
other two members of the PBC is illegal because the Omnibus Election Code (Section 255)
provides that a majority vote of all the members of the Board of Canvassers shall be
necessary to render a decision."

On November 16, 2000, Belac filed his "Manifestation with Formal Motion" claiming that the votes of
Commissioners Gorospe and Guiani in the assailed Resolution dated February 22, 2000 should not
be considered since they retired on February 15, 2000, or before the promulgation, citing the
recently decided case of Ambil vs. Comelec.2 In this case, the Supreme Court held that "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."

Chairman Demetriou denied Belac's motion.

On November 16, 2000, the Commission en banc, now with new members in view of the retirement
of Commissioners Manolo Gorospe and Japal Guiani, promulgated the second challenged
Resolution, the dispositive portion of which reads:
 "WHEREFORE, premises considered, the motion for reconsideration is hereby GRANTED.
Accordingly, We hereby:

"1. AFFIRM the proclamation of Petitioner-Appellant ROMMEL W. DIASEN as the duly

elected Governor of Kalinga by Public Respondent Provincial Board of Canvassers of
Kalinga;

"2. RECALL and LIFT the Order promulgated on March 9, 2000 directing Petitioner-Appellant
to cease and desist from performing the duties and functions of the Office of Governor for the
province of Kalinga;

"3. AFFIRM the directive to the LAW DEPARTMENT to conduct appropriate investigations of
the Board of Election Inspectors for the municipalities of Pinukpuk and Tinglayan, as well as
John Does, for possible collusion in the commission of election offenses and irregularities,
subject in the above-entitled case; and

"4. FURNISH a copy of this Resolution to the Office of the President, the Secretary of Interior
and Local Government, the Chairman of the Commission on Audit, and the Secretary of the
Sangguniang Panlalawigan of Kalinga Province, for their guidance and information."

The above Resolution was concurred in by Commissioners Julio Desamito, Luzviminda Tancangco,
Ralph Lantion and Rufino Javier. Commissioner Teresita Dy-Liaco-Flores again wrote a dissenting
opinion, joined by Chairman Demetriou.

Hence, this petition by Dominador Belac on the following grounds:

"First Ground

"Respondent COMELEC committed grave abuse of discretion amounting to lack and/or

excess of jurisdiction and in fact implicitly deprived petitioner of DUE PROCESS, when it
manifestly, deliberately and utterly FAILED AND REFUSED to act WITH DISPATCH on
private respondent's SUMMARY Petition on Pre-Proclamation Controversy; the Supposed
Final Resolution on Mere REHEARING promulgated only on November 16, 2000, AFTER
MORE THAN 30 MONTHS from the filing of the Petition, clearly violated petitioners' right to
due process, to a speedy disposition of cases and an (sic) clearly an act of grave abuse of
discretion.

"Second Ground

"The November 16 Questioned Resolution (Annex 'A') was absolutely useless and was
indeed superfluous (sic) and totally NULL AND VOID, considering that the same was
supposed to be a Final Resolution on a supposed REHEARING under Rule 18, Section 6 of
the COMELEC Rules, wrongfully premised on a supposed previous EQUALLY DIVIDED
VOTE in the February 22, 2000 Resolution of the COMELEC En Banc, However, legally,
procedurally and truthfully there was no such prior Equally Divided Resolution/Vote that
would have required a Rehearing, as the COMELEC En Banc patently erred in counting and
accepting even the null and void VOTES/signatures of two (2) Commissioners who retired on
February 15, 2000 — prior to the February 22, 2000 promulgation.

"Third Ground
 "RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK AND/OR EXCESS OF JURISDICTION WHEN IT EXCLUDED FROM CANVASS
FORTY TWO (42) ELECTION RETURNS FOR PINUKPUK AND TWENTY EIGHT (28)
ELECTION RETURNS FOR TlNGLAYAN, DESPITE UTTER LACK OF LEGAL AND
FACTUAL BASES THEREFOR AND IN GROSS AND WANTON DISREGARD OF LAW
AND WELL-SETTLED JURISPRUDENCE."

Public respondent COMELEC en banc and private respondent Rommel Diasen filed their respective
comments on the petition.

Respondent COMELEC, in its comment, states that based on evidence on record, there were
serious irregularities, tampering and falsification of the questioned election returns in the contested
precincts at Pinukpuk and Tinglayan. On this ground, "although an exception," the COMELEC can
rule on the exclusion of the questioned election returns.

In his comment, respondent Diasen maintains that petitioner Belac can not be considered the duly
elected governor of Kalinga because the respondent COMELEC (Second Division) unanimously
declared null and void his proclamation in its resolution promulgated on October 3, 2000. Likewise,
petitioner was not deprived of due process considering that he was given the opportunity to be heard
and that he actively participated in the proceedings before the COMELEC. And by such active
participation, he is estopped from questioning the validity of the votes cast by Commissioners
Gorospe and Guiani who retired.

The basic issue for our resolution is whether or not respondent COMELEC in a pre-proclamation
case can go beyond the face of the election returns.

It may be recalled that when the Provincial Board of Canvassers commenced the canvassing of the
Certificates of Canvass and Statements of Votes for Pinukpuk and Tinglayan, respondent Diasen
objected to the inclusion of the election returns of several precincts in both municipalities; and that
within twenty-four hours therefrom, he filed a formal petition with the Provincial Board of Canvassers
for the exclusion of the Certificates of Canvass and Statements of Votes for the said municipalities.

Section 241 of the Omnibus Election Code provides that a pre-proclamation controversy refers to
any question pertaining to or affecting the proceedings of the Board of Canvassers which may be
raised by any candidate or by any registered political party or coalition of political parties before the
Board or directly with the Commission, on any matter raised under Sections 233, 234, 235 and 236
in relation to the preparation, transmission, receipt, custody and appreciation of the election returns.

Section 243 of the Code enumerates the specific issues that may be raised in a pre-proclamation
controversy as follows:

"(a) Illegal composition or proceedings of the board of canvassers;

(b) The canvassed election returns are incomplete, contain material defects, appear to be
tampered with or falsified, or contain discrepancies in the same returns or in other authentic
copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code;

(c) The election returns were prepared under duress, threats, coercion, or intimidation, or
they are obviously manufactured or not authentic; and
 (d) When substitute or fraudulent returns in controverted polling places were canvassed, the
results of which materially affected the standing of the aggrieved candidate or candidates."

The above enumeration is restrictive and exclusive. Thus, in Sanchez vs. COMELEC,3 this Court
held:

"3. The scope of pre-proclamation controversy is limited to the issues enumerated under sec.
243 of the Omnibus Election Code. The enumeration therein of the issues that may be raised
in pre-proclamation controversy, is restrictive and exclusive. In the absence of any clear
showing or proof that the election returns canvassed are incomplete or contain material
defects (sec. 234), appear to have been tampered with, falsified or prepared under duress
(sec. 235) and/or contain discrepancies in the votes credited to any candidate, the difference
of which affects the result of the election (sec. 236), which are the only instances where a
pre-proclamation recount may be resorted to, granted the preservation of the integrity of the
ballot box and its contents, Sanchez' petition must fail.

In his petition with the Provincial Board of Canvassers, respondent Diasen raised the following
grounds:

"1. The Certificate of Canvass of Votes is falsified.

2. The Certificate of Votes were prepared under duress, threats, coercion or intimidation.

3. The certificate of Canvass of votes is obviously manufactured as the Statement of Votes

supporting it is likewise manufactured and falsified.

4. There was a deliberate and massive operation DAGDAG-BAWAS in the Certificate of

Canvass and Statement of Votes in Pinukpuk, Kalinga.

"1. The votes of Candidate for Governor, Dominador Belac, in Precincts 1A, 2A, 3A, .
. . were all padded (OPERATION DAGDAG) or increased in the Statement of Votes
per precinct as well as in the Election Returns.

"2. The Election Returns in the above-stated precincts cannot be the basis of a
proper correction of the votes garnered by Belac because said election returns were
likewise tampered with, falsified and manufactured as can be determined from the
documents (ELECTION RETURNS) themselves due to the following:

"A. The aforesaid election returns were already prepared even before the
actual counting of votes as shown by the fact that they were prepared by
persons other than the BEIs; (Board of Inspectors)

B. The PENCRAFT of the BEIs in the aforesaid precincts differ from the
pencraft of those who prepared the election returns;

C. In the aforesaid election returns, the votes of Belac were drastically and
obviously increased as can be gleaned from the fact that Belac garnered
almost 100% of the registered voters in said precincts;

D. That in order to determine the true will of the electorate[s], a RECOUNT of

the votes must be ordered."
Respondent Diasen's petition pertains to a pre-proclamation controversy. Specifically, it alleges that
the votes for petitioner Belac were all padded through "Operation Dagdag"; the election returns for
him (Diasen) was tampered, falsified and manufactured; and that the election returns were already
prepared even before the counting of votes. He thus prays that the votes must be recounted.

Diasen did not say that the alleged irregularities appear on the face of the election returns.
Obviously, they came from external sources and, therefore, not manifest on the election returns.

In fact, even the Certificates of Canvass and Statements of Votes for Pinukpuk and Tinglayan were
in order.

The Provincial Board of Canvassers explained that it refused to exclude the Certificate of Canvass of
Tinglayan because it was regular on its face and the grounds raised by respondent Diasen are not
among those in the list enumerated by law. Nothing therein shows it was manufactured or prepared
under duress, threat or intimidation or that it was tampered or falsified.

As to the Statement of Votes for Tinglayan, the reason why some election returns were not
canvassed was because of ballot snatching in some areas. The incompleteness of the Statement of
Votes, therefore, did not vitiate the Certificate of Canvass.

With respect to the Certificate of Canvass and Statement of Votes for Pinukpuk, the Board checked
the entries therein of the election returns in the presence of the parties' representatives. Having
found there were some "Dagdag" for Belac, the Board required the correction of the Statement of
Votes and the Certificate of Canvass basing the correction on the figures in the election returns,
pursuant to the General Instructions for Boards of Canvassers. It was only after the proper correction
was made that the Board included the Certificate of Canvass in the provincial canvass.

In Matalam vs. COMELEC,4 this Court held that "in a pre-proclamation controversy, the COMELEC,
as a rule, is restricted to an examination of the election returns and is without jurisdiction to go
beyond or behind them and investigate election irregularities. Indeed, in the case of Loong vs.
Comelec,5 the Court, through Mr. Justice Regino Hermosisima, Jr., declared that "the prevailing
doctrine in this jurisdiction ... is that as long as the returns appear to be authentic and duly
accomplished on their face, the Board of Canvassers cannot look beyond or behind them to verify
allegations of irregularities in the casting or the counting of the votes."

Loong cited the earlier ruling of the Court in Dipatuan vs. COMELEC6 and held: "The policy
consideration underlying the delimitation both of substantive ground and procedure is the policy to
determine as quickly as possible the result of the election on the basis of the canvass. Thus, in the
case of Dipatuan vs. Commission on Elections, we categorically ruled that in a pre-proclamation
controversy, COMELEC is not to look beyond or behind election returns which are on their face
regular and authentic returns. A party seeking to raise issues resolution of which would, compel or
necessitate COMELEC to pierce the veil of election returns which appear prima facie regular on their
face, has his proper remedy in a regular election protest. By their very nature, and given the obvious
public interest in the speedy determination of the results of elections, pre-proclamation controversies
are to be resolved in summary proceedings without the need to present evidence aliunde and
certainly without having to go through voluminous documents and subjecting them to meticulous
technical examinations which take up considerable time."

The above ruling was reiterated in the more recent case of June Genevieve R. Sebastian, et al. vs.
COMELEC, et al.,7 this Court stressing that it sees "no reason to depart from this rule."
In granting respondent Diasen's motion for reconsideration of the Resolution of its First Division, the
COMELEC ruled:

"Based on evidence on record, there were serious irregularities, tampering, and falsification
of the questioned returns in the said contested precincts in the municipalities of Tingalayan
and Pinukpuk, Kalinga province. On these factual findings, We find for their exclusion from
canvass, albeit in a pre-proclamation proceedings."

xxx xxx xxx

"Upon a re-examination and comparison of the copies for this Commission and for the
LAMMP, We find that the same were prepared by a few select persons, assembled in a
particular place, and pressured by circumstances attendant during elections. There is a
striking likeness and uniformity of the handwriting found in the questioned election returns
from the different precincts in the two aforementioned municipalities. We are in awe on the
evident likeness of strokes in the handwriting in the entries in the election returns, despite the
geographic distance of the two municipalities. There is no inescapable conclusionary finding
that could be made other than to declare that the contested election returns as
manufactured, and therefore, could not be a basis for a valid Certificates of Canvass and
Statement of Votes." (Emphasis supplied).

In concluding that there were serious irregularities, tampering and falsification of the questioned
election returns; and that they were manufactured, respondent COMELEC looked beyond the face of
the documents, hence, exceeding its authority, contrary to the mandate of Loong, reiterated
in Matalam and Sebastian.

We thus hold that respondent COMELEC committed grave abuse of discretion when it granted
respondent Diasen's motion for reconsideration.

At this point, counsel for respondent Diasen must remember that he should have determined
carefully the proper legal remedy or recourse for his client, such as an election protest. Needless to
state, a procedural flaw, as in this case, causes prejudice to the litigants and impairs the proper
administration of justice.

We now come on the peripheral issue regarding the votes of Commissioners Gorospe and Guiani in
the February 22, 2000 Resolution. They had retired when they participated in the promulgation of the
said Resolution.

In Jamil vs. Comelec,8 this Court ruled:

"x x x. A decision becomes binding only after it is validly promulgated. Consequently, if at the
time of the promulgation of a decision or resolution, a judge or a member of the collegiate
court who had earlier signed or registered his vote, has vacated his office, his vote is
automatically withdrawn or cancelled.

"The reason for the rule, which is logically applicable to decisions of constitutional
commissions and administrative bodies or agencies, is cogently expressed in the case
of Consolidated Bank and Trust Corporation v. Intermediate Appellate Court:

xxx xxx xxx

 'A decision becomes binding only after it is validly promulgated and not before. As we said
only recently in re Emiliano Jurado, 'a decision or resolution of the Court becomes such, for
all legal intents and purposes, only from the moment of its promulgation.' According to Chief
Justice Moran in the landmark case of Araneta v. Dinglasan:

'Accordingly, one who is no longer a member of this court at the-time a decision is

signed and promulgated, cannot validly take part in that decision. As above
indicated, the true decision of the Court is the decision signed by the Justices and
duly promulgated. Before that decision is so signed and promulgated, there is no
decision of the Court to speak of. The vote cast by a member of the Court after the
deliberation is always understood to be subject to confirmation at the time he has to
sign the decision that is to be promulgated. The vote is of no value if it is not thus
confirmed by the Justice casting it. The purpose of this practice is apparent.
Members of this Court, even after they have cast their votes, wish to preserve their
freedom of action till the last moment when they have to sign the decision, so that
they may take full advantage of what they may believe to be the best fruit of their
most mature reflection and deliberation. In consonance with this practice, before a
decision is signed and promulgated, all opinions and conclusions stated during and
after the deliberation of the Court, remain in the breasts of the Justices, binding upon
no one, not even upon the Justices themselves. Of course, they may serve for
determining what the opinion of the majority provisionally is and for designating a
member to prepare the decision of the Court, but in no way is that decision binding
unless and until signed and promulgated.

We add that at any time before promulgation, the ponencia may be changed by
the ponente. Indeed, if any member of the court who may have already signed it so
desires, he may still withdraw his concurrence and register a qualification or dissent
as long as the decision has not yet been promulgated. A promulgation signifies that
on the date it was made the judge or judges who signed the decision continued to
support it.

If at the time of the promulgation, a judge or a member of a collegiate court has

already vacated his office, his vote is automatically withdrawn. . . .' "

The rule has not been modified. In fact in the recently decided case of Ruperto A. Ambil, Jr. vs.
Comelec,9 this Court passed upon a resolution written by Commissioner Guiani himself, holding that
the said resolution is null and void ab initio because:

"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. 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."

Upon their retirement, Commissioners Gorospe and Guiani had been stripped of all authority to
participate in the promulgation of the February 22, 2000 Resolution. Pursuant to Section 6 of the
Comelec Rules of Procedure, earlier quoted, the Resolution dated June 4, 1998 of the First Division
is therefore deemed affirmed as the votes of Commissioners Gorospe and Guiani are considered
cancelled.
Indeed, there was initially no evenly divided vote in the February 22, 2000 Resolution that should
have merited a rehearing or the issuance of the challenged Resolution dated November 16, 2000 by
the new members of respondent Comelec.

On petitioner's contention that there was a long and deliberate delay on the part of public respondent
Comelec — as previously stated, respondent Diasen's motion for reconsideration of the Resolution
of the Comelec First Division was filed with respondent Comelec en banc on June 19, 1998.
However, it was only on February 22, 2000, or after almost two (2) years, when the motion was
resolved. In view of the equally divided voting, a rehearing was ordered. The parties merely
submitted memoranda. Yet, it was only on November 16, 2000, or after almost nine (9) months from
February 22, 2000, when respondent Comelec finally promulgated the other challenged Resolution
dated November 16, 2000.

Pre-proclamation controversies are mandated by law to be summarily disposed of. 10

Here, the Comelec failed to comply with this mandate. Let it be reminded that pre-proclamation
controversies, by their very nature, are to be resolved in summary proceedings which obviously
should be disposed of without any unnecessary delay.

WHEREFORE, the petition is hereby given due course and is GRANTED. The challenged
Resolutions dated February 22, 2000 and November 16,. 2000 of respondent COMELEC en
banc are SET ASIDE, while the Resolution of the COMELEC (First Division) dated June 4, 1998 is
AFFIRMED. Respondent COMELEC is directed to forthwith conduct the proclamation of petitioner
Dominador Belac in accordance with law.

SO ORDERED.

Davide, Jr., C .J ., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ ., concur.

Footnotes

1
Section 6. Procedure if Opinion is Equally Divided. — When the Commission en banc is
equally divided in opinion, or the necessary majority cannot be had, the case shall be
reheard, and if on rehearing no decision is reached, the action or proceeding as originally
commenced in the Commission shall be dismissed; in appealed cases, the judgment or order
appealed from shall stand affirmed; and in all incidental matters, the petition or motion shall
be denied.