782 SUPREME COURT REPORTS ANNOTATED

Bince, Jr. vs. Commission on Elections

*
G.R. No. 106291. February 9, 1993.

ALFONSO C. BINCE, JR., petitioner, vs. THE

COMMISSION ON ELECTIONS, PROVINCIAL BOARD
OF CANVASSERS OF PANGASINAN and EMILIANO
MICU, respondents.

Election Law; Commission of Elections; Due Process;

COMELEC acted without jurisdiction or with grave abuse of
discretion in annulling the petitioner's proclamation without the
requisite due notice and hearing thereby depriving the latter of due
process.—Respondent COMELEC acted without jurisdiction or
with grave abuse of discretion in annulling the petitioner's
proclamation without the requisite due notice and hearing,
thereby depriving the latter of due process. Moreover, there was
no valid correction of the SOVs and COCs for the municipalities of
Tayug and San Manuel to warrant the annulment of the
petitioner's proclamation.
Same; Same; Same; Petitioner cannot be deprived of his office
without due process of law.—Petitioner cannot be deprived of his
office without due process of law. Although public office is not
property under Section 1 of the Bill of Rights of the Constitution,
and one cannot acquire a vested right to public office, it is,
nevertheless, a protected right. Due process in proceedings before
the respondent COMELEC, exercising its quasi-judicial functions,
requires due notice and hearing, among others.
Same; Same; Same; COMELEC is without power to partially
or totally annul a proclamation or suspend the effects of a
proclamation without notice and hearing.—We had ruled in
Fariñas vs. Commission on Elections, Reyes vs. Commission on
Elections and Gallardo vs. Commission on Elections, that the
COMELEC is without power to partially or totally annul a
proclamation or suspend the effects of a proclamation without
notice and hearing.

SPECIAL CIVIL ACTION for certiorari to set aside the

resolution of the Commission on Elections.
The facts are stated in the opinion of the Court.
Constante P. Pimentel and Alfonso C. Bince, Jr, and
Pimentel, Apostol, Layosa and Sibayan Law Offices for
peti-

_________________

* EN BANC.

783

VOL. 218, FEBRUARY 9, 1993 783

Bince, Jr. vs. Commission on Elections

tioner. The Solicitor General for public respondents.

DAVIDE. JR., J.:

This is a special civil action for certiorari under Section 7,

Article IX-A of the 1987 Constitution, in relation to Section
1, Rule 39 of the COMELEC Rules of Procedure and Rule
65 of the Rules of Court, to set aside the 29 July 1992
Resolution promulgated by the Commission on Elections
(COMELEC) en banc without prior notice and hearing in
connection with Special Cases SPC No. 92-208 and SPC
No. 92-384.
The challenged resolution annulled the proclamation of
the petitioner as the second winning candidate for the
Sangguniang Panlalawigan of the Province of Pangasinan,
representing its Sixth Legislative District, in the
synchronized elections of 11 May 1992.
The grounds relied upon by the petitioner are:

"4.1 THE ASSAILED RESOLUTION, ('ANNEX A', supra) OF

JULY 29, 1992 IS ULTRA VIRES AND VOID ABINITIO
BECAUSE IT WAS ISSUED EX-PARTE, WITHOUT NOTICE
AND OPPORTUNITY AFFORDED THE PETITIONER TO BE
HEARD AND THEREFORE VIOLATIVE OF DUE PROCESS;
4.2 THE QUESTIONED RESOLUTION IS
UNCONSTITUTIONAL AND VIOLATES THE COMMISSION'S
OWN RULES OF PROCEDURE; AND FINALLY;
4.3 THE UNCONTESTED COCS LONG COMPLETED,
FINAL AND ALREADY USED FOR THE PROCLAMATION OF
OTHER PROVINCIAL CANDIDATES, CANNOT BE
CORRECTED THRU A MERE PETITION, TWENTY-ONE DAYS
THEREAFTER, BUT MAY BE A1 PROPER SUBJECT OF A
REGULAR ELECTION PROTEST."

2
 2
In the Resolution of 11 August 1992, this Court issued a
Temporary Restraining Order (TRO) directing the
respondent COMELEC to cease and desist from enforcing
its 29 July 1992 Resolution and requiring the respondents
to comment on the

_______________

1 Rollo, 4.
2 Id., 23.

784

784 SUPREME COURT REPORTS ANNOTATED

Bince, Jr. vs. Commission on Elections

petition. After the filing of separate comments by the

private and public respondents and the consolidated reply
thereto by the petitioner, this Court gave due course to the
petition, considered the separate comments of the public
and private respondents as their answers thereto and
declared the case submitted for decision.
The pleadings disclose the following uncontroverted
facts:
Petitioner and private respondent were among the
candidates in the synchronized elections of 11 May 1992 for
the two (2) seats in the Sangguniang Panlalawigan of the
Province of Pangasinan allotted to its Sixth Legislative
District under COMELEC Resolution
3
No. 2379 in relation
to Section 3 of R.A. No. 7166.
Ten (10) municipalities, including San Quintin, Tayug
and San Manuel, comprise the said district.
During the canvassing, on 21 May 1992, by the
Provincial Board of Canvassers (PBC) of the Certificates of
Canvass (COCs) for these ten (10) municipalities, private
respondent objected to the inclusion of the COC for San
Quintin. This was the only COC that was contested.
Accordingly, the COCs for the remaining nine (9)
municipalities were included in the canvass. The PBC
thereafter overruled the objection, prompting the private
respondent to appeal the ruling to the COMELEC, which
docketed the same as SPC No. 92-208. On 6 June 1992, the
COMELEC en banc promulgated therein a resolution
which reads:

"Acting on the appeal filed by petitioner/appellant Atty. Emiliano

S. Micu to the ruling of the Provincial Board of Canvassers of
Pangasinan, dated May 21,1992, the Commission en banc
tabulated the votes obtained by candidates Atty. Emiliano S. Micu
and Atty. Alfonso C. Bince for the position of Sangguniang
Panlalawigan member of the province of Pangasinan, using as
basis thereof the statement of votes by precinct submitted by the
municipality of San Quintin, Pangasinan, as (sic) a result of said
examination, the Commission rules, as follows:

________________

3 An Act Providing For Synchronized National and Local Elections And

For Electoral Reforms, Authorizing Appropriations Therefor, and For
Other Purposes.

785

VOL. 218, FEBRUARY 9, 1993 785

Bince, Jr. vs. Commission on Elections

1. That the actual number of votes obtained by candidate Alfonso C.

Bince in the municipality of San Quintin, Pangasinan is 1,055 votes
whereas petitioner/appellant Atty. Emiliano S. Micu obtained 1,535 votes
for the same municipality.

Accordingly, the Provincial Board of Canvassers for the province

of Pangasinan is directed to CREDIT in favor of petitioner/
appellant Atty. Emiliano S. Micu with 1,535 votes and candidate
Alfonso C. Bince with 4
1,055 votes in the municipality of San
Quintin, Pangasinan."

On 11 June 1992—or twenty-one (21) days after the

canvass of the COCs for the nine (9) municipalities was
completed—private respondent and the Municipal Boards
of Canvassers (MBCs) of Tayug and San Manuel
simultaneously filed with the PBC petitions for the
correction of the Statements of Votes (SOVs) earlier
prepared for alleged5
manifest errors committed in the
"addition" therein.
On 18 June 1992, acting on the motion of the petitioner
to implement the aforesaid 6 June 1992 Resolution, which
was claimed to have become final, the PBC credited in
favor of the petitioner and private respondent the votes for
each as indicated in the said resolution. As of that date, on
the basis of the COCs for San Quintin and the nine (9)
other municipalities, petitioner had a total of 27,370 votes
while the private respondent had 27,369 votes. Petitioner
thus led the private respondent by a margin of one (1) vote.
This notwithstanding, petitioner was not proclaimed
winner because of the absence of authority from the
COMELEC.
Accordingly, petitioner filed in SPC No. 92-208 a formal
motion for such authority. It was, however, only on 29 June
1992 that the COMELEC en banc promulgated a
Supplemental Order directing the PBC "to reconvene,
continue with the provincial canvass and proclaim the
winning candidates for the Sangguniang Panlalawigan for
the Province of Pangasinan, and other candidates for
provincial offices who have not been

__________________

4 Annex "D" of Petition; Rollo, 20-21.

5 Id., 5; 64.

786

786 SUPREME COURT REPORTS ANNOTATED

Bince, Jr. vs. Commission on Elections

6
proclaimed as of this date."
Meanwhile, on 24 June 1992, the PBC—now headed by
Director Felimon Asperin of the COMELEC who was
designated to replace one Atty. Obsequio who had earlier
returned to his station in Zamboanga City—acting on the
aforementioned petitions for correction of the SOVs of
Tayug and San Manuel—heard the testimonies of Nelly
Valera and Bonita Vidal, Election Registrars and
Chairpersons of the Municipal Boards of Canvassers of
Tayug and San Manuel, respectively, and of Dr. Corazon
Lagmay, Member of the MBC of Tayug, despite the
objections of the petitioner who also asked, on grounds of
bias and partiality, for the disqualification of Atty. Asperin.
Valera and Lagmay both testified that the total number of
votes for the petitioner in Tayug should be 2,415 instead of
the 2,486 reflected in the Statement of Votes. On the other
hand, Bonita Vidal testified that the total number of votes
for the petitioner in San Manuel should be 2,179 instead of
the 2,185 reported in the Statement of Votes, while that of
the private respondent should be 2,888 instead of the 2,892
also stated in the said SOVs. It then ruled "to allow the
Municipal Board of Canvassers of the municipalities of
Tayug and San Manuel, Pangasinan, to correct the7
Statement of Votes and Certificates of Canvass."
Petitioner seasonably appealed this ruling to the
COMELEC which docketed the appeal as SPC No. 92-384.
 On 1 July 1992, Atty. Asperin prepared and submitted
in SPC No. 92-384 (erroneously denominated by him as 92-
3894) a "Report on the Appeal From The Ruling of the8
Provincial Board of Canvassing (sic) of Pangasinan"
stating therein that "the Board found the petitions for
corrections meritorious and ruled to allow the MBCs of
Tayug and San Manuel to correct their respective
Statement of Votes and, subsequently, their Certificates of
Canvass with respect
9
to the votes" of the petitioner and
private respondent. The report also discloses that

__________________

6 Annex "E" of Petition; Rollo, 22.

7 Annex "F" of Comment of private respondent; Rollo, 55.
8 Annex "G", Id.; Id.; 58-61.
9 Id., 59-60.

787

VOL. 218, FEBRUARY 9, 1993 787

Bince, Jr. vs. Commission on Elections

on that same date, the herein private respondent filed with

the PBC10 a Motion To Continue Canvass and To Proclaim
Winner.
On 4 July 1992, the PBC reconvened and voted to11refer
the matter—of whom to proclaim—to the COMELEC. The
petition for that purpose was filed by Atty. Asperin, who
represented to the Commission that "as per Order of the
same Board there were corrections already made in a
separate sheet of paper of the Statement of Votes and
Certificates of Canvass of Tayug and San Manuel,
Pangasinan which corrections if to be considered by the
Board in its canvass and proclamation, candidate (sic)
Emiliano Micu will win by 72 votes. On the other hand, if
these corrections will not be considered,
12
candidate Alfonso
Bince, Jr. will win by one (1) vote."
On 9 July 1992, the COMELEC en banc, describing the
proceeding as "(Connected with SPC No. 92-208 and SPC
No. 384)," and without assigning a13 specific docket number
therefor, promulgated a resolution the dispositive portion
of which reads:

"x x x RESOLVED, as it hereby RESOLVES, to DIRECT the

Provincial Board of Canvassers of Pangasinan, as follows:
 '(1) To RECONVENE immediately and complete the canvass
of the Certificate of Votes, as corrected, of the Municipal
Boards of Canvassers of the municipalities comprising the
6th District of Pangasinan;
(2) To PROCLAIM the winning candidate for Member of the
Provincial Board, 6th District of Pangasinan, on the basis
of the completed and corrected Certificates of Canvass,
aforesaid, in accordance with the law, the 14
rules and
guidelines on canvassing and proclamation."

It is to be noted that the purported corrections in the SOVs

and COCs are not actually incorporated in any of these
documents; they appear on separate sheets of paper and
were

_______________

10 Id., 61.
11 Id., 6.
12 Rollo, 50-51.
13 Annex "D" of Comment of private respondent; Id.; 49-52.
14 ld., 51.

788

788 SUPREME COURT REPORTS ANNOTATED

Bince, Jr. vs. Commission on Elections

signed merely by the Election Registrar/Chairman of the

MBC concerned. Thus, the document pertaining to the
Municipality of Tayug reads:

"CORRECTION OF MANIFEST ERROR IN THE STATEMENT OF

VOTES AND CERTIFICATE OF CANVASS
 
Total votes of Candidate Alfonso Bince, Jr. 2,486     
in the Certificate of Canvass and in the Statement of Votes of
Tayug,
Pangasinan...........................................................................
Total votes of Candidate Alfonso Bince, Jr. as 2,415
corrected.........................................................................................      

  CERTIFIED
CORRECT:
  July 6, 1992     
   
 (SGD)       
(TYP)      NELLY M.
VALERA     
  Election Registrar
and     
  Chairman of the
Municipal
  Board of
Canvassers     
  Tayug, 15
Pangasinan"      
while that for the Municipality of San  
Manuel reads:     

"CORRECTION OF MANIFEST ERROR IN THE

STATEMENT
     OF VOTES AND CERTIFICATE OF CANVASS
 
       Votes of Alfonso Bince, Jr. as it appears in the
Statement of
     Votes (page 3) 427 (sub-total); Corrected sub-total 421
 
       Votes of Emiliano Micu as it appears in the Statement
of Votes
     (page 3) 669 (sub-total); Corrected sub-total 665
 
       Total votes of Candidate Alfonso Bince, Jr. as it
appears in the
     Certificate of Canvass.......... 2,185; Corrected
total.......... 2,179
 
       Total votes of Candidate Emiliano Micu as it appears
in the
     Certificate of Canvass........... 2,892; Corrected
total............ 2,8

___________

15 Annex "F-1" of Comment of private respondent; Rollo, 56; Also,

Annex "A" of Consolidated Reply; Id., 99.

789

VOL. 218, FEBRUARY 9, 1993 789

 Bince, Jr. vs. Commission on Elections

6 July 1992
 
    CERTIFIED TRUE & CORRECT:
 
  (SGD) BONITA C. VIDAL
  (TYP) ELECTION REGISTRAR II
    CHAIRMAN, MUN. BOARD OF
    CANVASSERS
16
    SAN MANUEL, PANGASINAN"

On 21 July 1992, the PBC, 17

with Atty. Asperin dissenting,
promulgated a resolution proclaiming herein petitioner as
the second duly elected member of the Sangguniang
Panlalawigan of the Province of Pangasinan, representing
its Sixth Legislative District, with a lead of one (1) vote
over the private respondent. It maintained that the
completed and corrected COCs mentioned in the 9 July
1992 Resolution refer to the COCs of the nine (9)
municipalities the canvass of which was completed on 21
May 1992, and the corrected COC of San Quintin duly
accomplished pursuant to the resolution of respondent
COMELEC of 6 June 1992 in SPC No. 92-208. It was also
of the opinion that no correction could be made on the
COCs of Tayug and San Manuel after the completion and
finality of their canvass.
Consequently, petitioner took his oath of office 18before
Governor Aguedo F. Agbayani on 21 July 1992 and,
thereafter, assumed office.
Private respondent then filed with the COMELEC an
Urgent Motion For Contempt and to Annul Proclamation
alleging therein that the act of the majority of the PBC in
proclaiming the petitioner was "an utter defiance,
disregard and 19
disobedience to a lawful order of' the
COMELEC. The order referred to is the 9 July 1992
Resolution earlier adverted to. He then prayed that (a) the
two (2) PBC members who voted for the

_____________

16 Annex "F-2" of Comment of private respondent; Rollo, 57; also, Annex

"B" of Consolidated Reply; Id., 100.
17 Annex "B-1" of Petition; Id., 17-18.
18 Annex "C", Id., Id., 19.
 19 Rollo, 13.

790

790 SUPREME COURT REPORTS ANNOTATED

Bince, Jr. vs. Commission on Elections

proclamation of the petitioner be punished for contempt for

defying and disobeying the said resolution, (b) the
proclamation of the petitioner be annulled for being void ab
initio and (c) he, the herein private respondent, be
proclaimed instead as the second winning candidate for the
Sangguniang Panlalawigan of the Province of Pangasinan,
representing its Sixth Legislative district.
No copy of this motion was furnished to the petitioner.
Neither 20did the respondent COMELEC set the same for
hearing.
On 29 July 1992, the respondent COMELEC en banc, by
the affirmative vote of the Chairman and six (6) Members
—with Commissioner Dario C. Rama voting "to require
candidate Bince and the respondent Provincial Board of
Canvassers to comment on the motion 21
to annul
proclamation"—promulgated a resolution under no
specific docket number but merely indicating the same as:

"(Connected with SPC No. 92-208 and SPC No. 92-384)"

The dispositive portion of the resolution reads:

"x x x the Commission RESOLVED, as it hereby RESOLVES:

1. To DIRECT Prosecutor Jose Antonio Guillermo and Supt.

Primo Mina, vice-chairman and secretary, respectively, of
the Provincial Board of Canvassers of Pangasinan, to
show cause why they should not be declared in contempt
for defying and disobeying the Resolution of this
Commission dated 09 July 1992, directing them to
RECONVENE immediately and complete the canvass of
the Certificates of Votes as corrected, of the Municipal
Boards of Canvassers of the Municipalities comprising the
6th District of Pangasinan; and to PROCLAIM the
winning candidate of the Provincial Board, 6th District
(sic) of Pangasinan, on the basis of the completed and
corrected Certificates of Canvass, aforesaid, instead they
excluded (sic) the corrected Certificates of Canvass of the
Municipal Boards of Canvassers of Tayug and San
Manuel, Pangasinan;
___________

20 Id., 7.
21 Annex "A" of Petition; Id., 12-15.

791

VOL. 218, FEBRUARY 9, 1993 791

Bince, Jr. vs. Commission on Elections

2. To ANNUL the proclamation dated 21 July 1992, by the

said Provincial Board of Canvassers (dissented by (sic)
Chairman Felimon Asperin), of candidate Alfonso Bince;
3. To DIRECT the Provincial Board of Canvassers to
reconvene immediately and proclaim the winning
candidate for the second position of the Provincial Board;
6th District of Pangasinan, on the basis of the completed
and corrected Certificates of Canvass submitted by the
Municipal Boards of Canvassers of all the municipalities
in the
22
6th District of Pangasinan, in accordance with
law."

This is the resolution assailed in the instant petition. It

appears that on 13 August 1992, or after the respondent
COMELEC received a copy of the TRO issued by this Court
on 11 August 1992, the PBC, with Vice-Chairman Jose
Antonio Guillermo dissenting, promulgated a resolution,
allegedly pursuant to the aforesaid 29 July 1992
Resolution, proclaiming the private respondent as the
second winning candidate for the Sangguniang
Panlalawigan of the 23
Province of Pangasinan for its Sixth
Legislative District.
We find merit in this petition and accordingly rule for
the petitioner.
Respondent COMELEC acted without jurisdiction or
with grave abuse of discretion in annulling the petitioner's
proclamation without the requisite due notice and hearing,
thereby depriving the latter of due process. Moreover, there
was no valid correction of the SOVs and COCs for the
municipalities of Tayug and San Manuel to warrant the
annulment of the petitioner's proclamation.

1. Petitioner had been proclaimed, had taken his oath

of office and had assumed the position as the second
elected member of the Sangguniang Panlalawigan
of the Province of Pangasinan for its Sixth
Legislative District. Such proclamation enjoys the
presumption of regularity and validity. The ruling
 of the majority of the PBC to proclaim the
petitioner is based on its interpretation of the 9
July 1992 Resolution of respondent COMELEC
which does not expressly single out the

___________

22 Rollo, 14-15.
23 Annex "A" of Comment of private respondent; Rollo, 42-46.

792

792 SUPREME COURT REPORTS ANNOTATED

Bince, Jr. vs. Commission on Elections

corrected COCs of Tayug and San Manuel; since, as of

thattime, the only corrected COC which existed was that
for SanQuintin, which was made by the PBC on 18 June
1992, themajority of the PBC cannot be faulted
24
for ruling
the way it did.The 9 July 1992 Resolution merely directed
it:

"(1) To RECONVENE immediately and complete the

canvass of the Certificates of Votes, as corrected, of
the Municipal Boards of Canvassers of the
municipalities comprising the 6th District of
Pangasinan;
(2) To PROCLAIM the winning candidate for Member
of the Provincial Board, 6th District of Pangasinan,
on the basis of the completed and corrected
Certificates of Canvass, aforesaid; in accordance
with the law, the rules and guidelines on
canvassing and proclamation." (Emphasis supplied)

The PBC thus had every reason to believe that the phrase
"completed and corrected" COCs could only refer to the
nine (9) COCs for the nine municipalities, the canvass for
which was completed on 21 May 1992, and that of San
Quintin, respectively. Verily, the above resolution is vague
and ambiguous.
Petitioner cannot be deprived of his office without due
process of law. Although public office is not property
25
under
Section 1 of the Bill of Rights of the Constitution, 26and one
cannot acquire a vested right to 27public office, it is,
nevertheless, a protected right. Due process in
proceedings before the respondent COMELEC, exercising
its quasi-judicial functions, requires due notice and
hearing, among others. Thus, although the COMELEC
possesses, in appropriate cases, the power28
to annul or
suspend the proclamation of any candidate,
29
We had ruled
in Fariñas vs. Commission on Elections, Reyes vs.

_________________

24 Rollo, 51.
25 Article III, 1987 Constitution.
26 CRUZ, I.A., Constitutional Law, 1991 ed., 101.
27 BERNAS, J., The Constitution of the Republic of the Philippines, vol.
I, 1987 ed., 40, citing Segovia vs. Noel, 47 Phil. 543 [1925] and Borja vs.
Agoncillo, 46 Phil. 432 [1924].
28 Section 248, Omnibus Election Code (B.P. Blg. 881).
29 G.R. No. 81763, 3 March 1988.

793

VOL. 218, FEBRUARY 9, 1993 793

Bince, Jr. vs. Commission on Elections

30
Commission31
on Election and Gallardo vs. Commission on
Elections that the COMELEC is without power to
partially or totally annul a proclamation or suspend the
effects of a proclamation without notice and hearing.
In Fariñas vs. COMELEC, this Court further stated
that:

"As aptly pointed out by the Solicitor General, 'to sanction the
immediate annulment or even the suspension of the effects of a
proclamation before the petition seeking such annulment or
suspension of its effects shall have been heard would open the
floodgates of (sic) unsubstantiated petitions after the results are
known, considering the propensity of the losing candidates to put
up all sorts of obstacles in an open display of unwillingness to
accept defeat (Guiao v. Comelec, supra, or would encourage the
filing of baseless petitions not only to the damage and prejudice of
winning candidates but also to the frustration of the sovereign
will of the electorate (Singko v. Comelec, 101 SCRA 420)."'

Commissioner Rama's recommendation to direct first the

petitioner and the PBC to comment on the motion to annul
was thus correctly and wisely entered for he precisely had
in mind the due process requirement; without compliance
with such requirement, the COMELEC's action would be
fatally flawed.
Furthermore, the said motion to annul proclamation was
treated by the respondent COMELEC as a Special Case
(SPC) because its ruling therein was made in connection
with SPC No. 92-208 and SPC No. 92-384. Special Cases
under the COMELEC RULES OF32 PROCEDURE involve
the pre-proclamation controversies. We have categorically
33
declared in Sarmiento us. Commission on Elections that
pursuant to Section 3, Article IX-C of the 1987
Constitution, which reads:

"SEC. 3. The Commission on Elections may sit en banc or in two

divisions, and shall promulgate its rules of procedure in order to
expedite disposition of election cases, including pre-proclamation

_________________

30 G.R. No. 81856, 3 March 1988,

31 G.R. No. 85974, 2 May 1989.
32 Rule 27 in relation to Section 4(h), Rule 1, and Section 4, Rule 7.
33 G.R. No. 105628, and companion cases, 6 August 1992.

794

794 SUPREME COURT REPORTS ANNOTATED

Bince, Jr, vs. Commission on Elections

controversies. All such election cases shall be heard and decided

in division, provided that motions for reconsideration of decisions
shall be decided by the Commission en banc."

the commission en banc does not have jurisdiction to hear

and decide pre-proclamation cases at the first instance.
Such cases should first be referred to a division.
Hence, the COMELEC en banc had no jurisdiction to
decide on the aforesaid motion to annul the proclamation;
consequently, its 29 July 1992 Resolution is null and void.
For this reason too, the COMELEC en banc Resolution of 6
June 1992 in SPC No. 92-208 resolving the private
respondent's appeal from the ruling of the PBC with
respect to the COC of San Quintin is similarly void.
2. It is to be noted, as correctly stressed by the
petitioner, that there are no valid corrected Statements of
Votes and Certificates of Canvass for Tayug and San
Manuel; thus, any reference to such would be clearly
unfounded. While it may be true that on 24 June 1992, the
PBC, acting on simultaneous petitions to correct the SOVs
and COCs for Tayug and San Manuel, ordered the MBCs
for these two (2) municipalities to make the appropriate
corrections in the said SOVs and their corresponding
COCs, none of the members of said Boards convened to
actually implement the order. Such failure could have been
due to the appeal seasonably interposed by the petitioner to
the COMELEC or the fact that said members simply chose
not to act thereon. As already adverted to, the socalled
"corrected" Statements of Votes and Certificates of Canvass
consist of sheets of 34
paper signed by the
35
respective Election
Registrars of Tayug and San Manuel. These are not valid
corrections because the Election Registrars, as Chairmen of
the MBCs cannot, by themselves, act for their respective
Boards. Section 225 of the Omnibus Election Code (B.P.
Blg. 881) provides that "[A] majority vote of all the
members of the board of canvassers shall be necessary to
render a decision." That

___________________

34 Annex "F-1" of Comment of private respondent; Annex "A" of

Consolidated Reply of petitioner.
35 Annex "F-2", Id.; Annex "B", Id.

795

VOL. 218, FEBRUARY 9, 1993 795

Bince, Jr. vs. Commission on Elections

majority means at least36

two (2) of the three (3) members
constituting the Board. As to why the Election Registrars,
in their capacities as Chairmen, were the only ones who
prepared the so-called correction sheets, is beyond Us.
There is no showing that the other members of the Boards
were no longer available. Since they are from the Province
of Pangasinan, they could have been easily summoned by
the PBC to appear before it and effect the corrections on
the Statements of Votes and Certificates of Canvass.
Besides, by no stretch of the imagination can these
sheets of paper be considered as the corrected SOVs and
COCs. Corrections in a Statement of Vote and a Certificate
of Canvass could only be accomplished either by inserting
the authorized corrections into the SOV and COC which
were originally prepared and submitted by the MBC or by
preparing a new SOV and COC incorporating therein the
authorized corrections. Thus, the statement in the 29 July
1992 Resolution of the respondent COMELEC referring to
"the corrected Certificates of Canvass of the Municipal37
Boards of Canvassers of Tayug and San Manuel," is
palpably unfounded. The Commission could have been
misled by Atty. Asperin's ambiguous reference to
"corrections already made in separate sheets of paper of the
Statements of Votes and Certificate
38
of Canvass of Tayug
and San Manuel, Pangasinan," in his petition asking the
COMELEC to rule on who shall be proclaimed. However, if
it only took the trouble to carefully examine what was held
out to be as the corrected documents, respondent
COMELEC should not have been misled.
Even if We are to assume for the sake of argument that
these sheets of paper constitute sufficient corrections, they
are, nev-

_____________________

36 Section 20(c) of the Electoral Reforms Law of 1987 (R.A. No. 6646)
provides that the "municipal board of canvassers shall be composed of the
election registrar or a representative of the Commission, as chairman, the
municipal treasurer, as vice-chairman, and the most senior district school
supervisor or in his absence a principal of the school district or the
elementary school, as members."
37 Last clause, paragraph 1 of the dispositive portion, Annex "A" of
Petition; Rollo, 15.
38 Quoted in the Resolution of 9 July 1992; Id., 50-51.

796

796 SUPREME COURT REPORTS ANNOTATED

Bince, Jr. vs. Commission on Elections

ertheless, void and of no effect. At the time the Election

Registrars prepared them—on 6 July 1992—respondent
COMELEC had not yet acted on the petitioner's appeal
(SPC No. 92-384) from the 24 June 1992 ruling of the PBC
authorizing the corrections. Petitioner maintains that until
now, his appeal has not been resolved. The public
respondent, on the other hand, through the Office of the
Solicitor General, claims that the same had been:

"x x x resolved in the questioned resolution of July 29, 1992,

where COMELEC affirmed respondents (sic) Board's correction
that petitioner only received 2,415 votes in39
Tayug and 2,179 in
San Manuel (see p. 2, Annex "A;, Petition)."

On the same matter, the private respondent asserts that:

"This SPC-92-384, is however, deemed terminated and the ruling

of the PBC is likewise deemed affirmed by virtue of the 2nd par.,
Sec. 16, R.A. No. 7166, supra and Comelec
40
en banc Resolution No.
2489, supra, dated June 29, 1992;"

If We follow the respondent COMELEC's contention to its

logical conclusion, it was only on 29 July 1992 that SPC No.
92384 was resolved; consequently, the so-called "correction
sheets" were still prematurely prepared. In any event, the
COMELEC could not have validly ruled on such appeal in
its 29 July 1992 Resolution because the same was
promulgated to resolve the Urgent Motion For Contempt
and to Annul Proclamation filed by the private respondent.
Furthermore, before the resolution of SPC No. 92-384 on
the abovementioned date, no hearing was set or conducted
to resolve the pending motion. Therefore, on this ground
alone, the 29 July 1992 Resolution, even if it was meant to
resolve the appeal, is a patent nullity for having been
issued in gross violation of the requirement of notice and
hearing mandated by Section 246 of the Omnibus Election
Code, in relation to Section 18 of R.A. No. 7166 and Section
6, Rule 27 of the COMELEC Rules of Procedure, and for
having

_____________

39 Rollo, 71.
40 ld., 36.

797

VOL. 218, FEBRUARY 9, 1993 797

Bince, Jr. vs. Commission on Elections

been resolved by the COMELEC en banc at the first

instance. The case should have been referred first to a
division pursuant to Section 3, Article IX-C of the 1987
Constitution 41and Our ruling in Sarmiento vs. Commission
on Elections. Moreover, the COMELEC's claim that the
questioned resolution affirmed the correction made by the
Board is totally baseless. The PBC did not make any
corrections. It merely ordered the Municipal Boards of
Canvassers of Tayug and San Manuel to make such
corrections. As earlier stated, however, the said MBCs did
not convene to make these corrections. It was the
Chairmen alone who signed the sheets of paper purporting
to be corrections.
For being clearly inconsistent with the intention and
official stand of respondent COMELEC, private
respondent's theory of termination under the second
paragraph of Section 16 of R.A. No. 7166, and the
consequent affirmance of the ruling of the PBC ordering
the correction of the number of votes, must necessarily fail.
The foregoing considered, the proclamation of the
private respondent on 13 August 1992 by the Provincial
Board of Canvassers of Pangasinan is null and void.
 WHEREFORE, the instant petition is GRANTED. The
challenged resolution of the respondent Commission on
Elections of 29 July 1992 and the proclamation of the
private respondent on 13 August 1992 as the second
Member of the Sangguniang Panlalawigan of the Province
of Pangasinan, representing its Sixth Legislative District,
are hereby ANNULLED and SET ASIDE and respondent
Commission on Elections is DIRECTED to resolve the
pending incidents conformably with the foregoing
disquisitions and pronouncements.
No costs.
SO ORDERED.

Narvasa (C.J.), Cruz, Padilla, Bidin, Griño-Aquino,

Regalado, Romero, Nocon, Bellosillo, Melo and Campos, Jr.,
JJ., concur.
Gutierrez, Jr., J., On Terminal Leave.
Feliciano, J., In the result.

______________

41 Supra., footnote No. 33.

798

798 SUPREME COURT REPORTS ANNOTATED

Heirs of Jacobo Bolus vs. Court of Appeals

Quiason, J., No part.

Petition granted. Resolution annulled and set aside.

Note.—The rule is that after the winning candidate has
been proclaimed and assumed office, a pre-proclamation
petition does not lie against him (Gallardo vs. Rimando,
187 SCRA 463).

—o0o—

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