G.R. No. 139028 April 12, 2000HADJI RASUL BATADOR BASHER, petitioner,vs.COMMISSION ON ELECTIONS and ABULKAIR AMPATUA, respondents. PANGANIBAN, J.:An election must be held at the place, date and time prescribed by law. Likewise, its suspension or postponement must comply requirements. Otherwise, it is irregular and void.The CasePetitioner 1 assails before us the June 8, 1999 Resolution of the Commission on Elections (Comelec) 2 in SPA Case No. 97-276 which dismissed a Petition to Declare a Failure of Election and to Call Special Election in Precinct No. 12, Barangay Maidan, Tugaya, Lanao del Sur. The assailed Resolution disposed as follows:In view of the foregoing considerations, We he[re]by hold that the special elections in Barangay Maidan, Tugaya Lanao del Sur on August 30, 1997 did not fail. The result thereof must therefore be accorded respect.WHEREFORE, premises considered, the Commission En Banc RESOLVES to DISMISS the petition for lack of merit. 3

The FactsPetitioner Hadji Rasul Batador Basher and Private Respondent Abulkair Ampatua were both candidates for the position of Punong Barangay in Barangay Maidan, Tugaya, Lanao del Sur during the May 12, 1997 barangay election. The election was declared a failure and a special one was set for June 12, 1997. Again the election failed and was reset to August 30, 1997.According to the Comelec, the voting started only around 9:00 p.m. on August 30, 1997 because the prevailing tension in the said locality. Election Officer Diana Datu-Imam reported that she was allegedly advised by some religious leaders not to proceed with the election because "it might trigger bloodshed." She also claimed the town mayor, "being too hysterical, yelled and threatened me to declare [a] failure of election in Maidan." Subsequently, the armed followers of the mayor pointed their guns at her military escorts, who responded in a like manner towards the former. The parties were then pacified at the PNP headquarters. With the arrival of additional troops, the election officer proceeded to Maidan to conduct the election starting at 9:00 p.m. until the early morning of the following day. The holding of the election at that particular time was allegedly announced "over the mosque." 4

The tally sheet for the said "election" showed the following results: private respondent — 250 votes; petitioner — 15 votes; and Baulo Abdul Razul, a third candidate — 10 votes. 5 Private respondent was proclaimed winner.Petitioner then filed a Petition before the Comelec praying that the election be declared a failure. Alleging that no election was conducted in place and at the time prescribed by law, petitioner narrated that there was a dispute that day (August 30, 1997) among the candidates regarding the venue of the election in the lone voting precinct of the barangay. In order to avoid bloodshed, they ultimately agreed that no election would be conducted. Accordingly, the election officer turned over for safekeeping the ballot box containing election paraphernalia to the acting station commander (OIC) of the Philippine National Police (PNP). The following day, petitioner and the third candidate were surprised to learn that the election officer had directed the Board of Election Tellers to conduct the election and to fill up the election returns and certificates of canvass on the night of August 30, 1997 at the residence of the former mayor. Petitioner also stated that no announcement to hold the election at the former mayor's house that night was ever made. 6

As earlier stated, the Comelec dismissed the Petition. Hence, this recourse to this Court. 7

Ruling of the ComelecThe Comelec ruled against a failure of election because the two conditions laid down in Mitmug v. Comelec 8 were not established. It held that the "election was conducted on the scheduled date. The precinct functioned. Actual voting took place, and it resulted not in a failure to elect." 9

In justifying the balloting at the dead of night, the poll body cited Section 22, Article IV of Comelec Resolution 2971, which provided in part that "[i]f at three o'clock, there are still voters within thirty meters in front of the polling place who have no cast their votes, the voting shall continue to allow said voters to cast their votes

without interruption. . . ." The Comelec then went on to state that "experience had shown that even when there is a long delay in the commencement of the voting, voters continue to stay within the area of the polling place." 10

IssuePetitioner submits the following questions for the consideration of the Court:1. Whether or not the election held at around 10:00 o'clock in the evening of August 30, 1997 after the Acting Election Officer had verbally declared or announced a failure of election in Precinct No. 12, Barangay Maidan, Tugaya, Lanao del Sur is contrary to law, rule and jurisprudence;2. Whether or not the election held at the residence of an Ex-mayor far from the designated Polling Place of Precinct No. 12, Barangay Maidan, Tugaya, Lanao del Sur is legal or valid;3. Whether or not the proclamation of the private respondent as the duly elected Punong Barangay of Barangay Maidan and the seven (7) Barangay is illegal, null and void ab initio. 11

In the main, the crucial question that needs to be addressed is whether the "election" held on the date, at the time and in the place other than those officially designated by the law and by the Comelec was valid.The Court's RulingThe Petition is meritorious.Main Issue:Validly of the Special ElectionCiting Mitmug v. Comelec, 12 the Comelec points our that a failure of election requires the concurrence of two conditions, namely (1) no voting took place in the precinct or precincts on the date fixed by law, or even if there was voting, the election resulted in a failure to elect; and (2) the votes not cast would have affected the result of the election. It ruled that these requirements were not met.1âwphi1.nêtWe do not agree. The peculiar set of facts in the present case show not merely a failure of election but the absence of a valid electoral exercise. Otherwise stated, the disputed "election" was illegal, irregular and void.Election Situs Was IllegalFirst, the place where the voting was conducted was illegal. Section 42 of the Omnibus Election Code provides that "[t]he chairman of the board of election tellers shall designate the public school or any other public buildingwithin the barangay to be used as polling place in case the barangay has one election precinct . . .. " Petitioner, citing an Affidavit 13 supposedly executed by the members of the Board of Election Tellers (BET) for Barangay Maidan, alleges that the election of officials for said barangay was held at the residence of former Mayor Alang Sagusara Pukunun, which is located at Barangay Pandarianao, instead of the officially designated polling precinct at Cagayan Elementary School. If this allegation were true, such "election" cannot be valid, as it was not held within the barangay of the officials who were being elected. On the other hand, it is admitted that there was a public school or building in Barangay Maidan — the Cagayan Elementary School, which was the earlier validly designated voting center.While the BET members later repudiated their Affidavit, they could only claim that the election was held "in Barangay Maidan." 14 They, however, failed to specify the exact venue. In fact, to this date, even the respondents have failed to disclose where exactly the voting was conducted. This glaring omission definitely raises serious questions on whether the election was indeed held in a place allowed by law.Voting Time Was Likewise IrregularSecond, as to the time for voting, the law provides that "[t]he casting of votes shall start at seven o'clock in the morning and shall end at three o'clock in the afternoon, except when there are voters present within thirty meters in front of the polling place who have not yet cast their votes, in which case the voting shall continue but only to allow said voters to cast their votes without interruption." 15 Section 22, Article IV of Comelec Resolution No. 2971 also specifies that the voting hours shall start promptly at 7:00 a.m. and end at 3:00 p.m. of the same day.However, the "election" for Barangay Maidan officials was supposed to have been held after 9:00 p.m. of August 30, 1997 until the wee hours of the following day. Certainly, such schedule was not in accordance with law or the Comelec Rules. The Comelec erred in relying on the second sentence of Section 22, Article IV of Comelec Resolution 2971, which states that "[i]f at three o'clock [in the afternoon], there are still voters within thirty meters in front of the polling place who have not cast their votes, the voting shall continue to allow said voters to

cast their votes without interruption." This sentence presupposes that the election commenced during the official time and is simply continued beyond 3:00 p.m. in order to accommodate voters who are within thirty meters of the polling place, already waiting for their turn to cast their votes. This is clearly the meaning and intent of the word continue — "to go on in a specified course of action or condition." 16 The action or condition already subsists and is allowed to go on. Otherwise, the law should have stated instead that "the voting may also start even beyond 3:00 p.m. if there are voters within thirty meters in front of the polling place."The strained interpretation espoused by the Comelec encourages the conduct of clandestine "elections," for it virtually authorizes the holding of elections beyond normal hours, even at midnight when circumstances could be more threatening and conductive to unlawful activities. On a doctrinal basis, such nocturnal electoral practice discourages the people's exercise of their fundamental right of suffrage, by exposing them to the dangers concomitant to the dead of night, especially in far-lung barangays constantly threatened with rebel and military gunfires.Election Date Was InvalidThird, the Comelec scheduled the special election on August 30, 1997. Any suspension or postponement of an election is governed by Section 2 of RA6679, 17 which states that "[w]hen for any serious cause such as rebellion, insurrection, violence, terrorism, loss or destruction of election paraphernalia, and any analogous causes of such nature that the holding of a free, orderly and honest election should become impossible in any barangay, the Commission on Election motu proprio or upon sworn petition of ten (10) registered voters of a barangay, after summary proceedings of the existence of such grounds, shall suspend or postpone the election therein to a date reasonably close to the date of the election that is not held or is suspended or postponed, or which resulted in a failure to elect, but not later than thirty (30) days after the cessation of the cause for such suspension or postponement of the election or failure to elect, and in all cases not later than ninety (90) days from the date of the original election."Election Officer Diana Datu-Imam of Tugaya, Lanao del Sur practically postponed the election in Barangay Maidan from the official original schedule of 7:00 a.m. to 3:00 p.m. of August 30, 1997 to 10:00 p.m. of August 30, 1997 until the early morning of August 31, 1997. She attempted to justify her postponement of the election by citing threats of violence and bloodshed in the said barangay. Allegedly because of the tension created by armed escorts of the municipal mayor and the military, Datu-Imam declared a failure of election in order "to ease their aggression." However, as election officer, she has no authority to declare a failure of election. Indeed, only the Comelec itself has legal authority to exercise such awesome power. An election officer alone, or even with the agreement of the candidates, cannot validly postpone or suspend the elections.Election Postponement Was InvalidFourth, Datu-Imam did not follow the procedure laid down by law for election postponement or suspension or the declaration of a failure of election. She narrated the circumstances surrounding her declaration as follows: 18

When I returned to [as]certain the situation in Maidan, the Mayor, being too hysterical, yelled and threatened me to declare [a] failure of elections in Maidan. When I insisted to personally confirm the probable cause of bloodshed (at Maidan), his armed followers/escorts pointed their guns to me and my escorts. Likewise my military escorts pointed their guns to the mayor and his men "Man to Man". The Datus and religious leaders pacified us at the PNP Headquarters.After a couple of hours, the military officers and I agreed to adapt another strategy just to pursue with the elections in Maidan [by] hook or by crook. Considering that they forcibly took away from us the ballot box containing paraphernalia of Maidan, I didn't have any recourse but give them. I turned-over the ballot box to the Acting Chief of Police, Malik Bantuas with proper receipt, taking away from the box the CEF 2 & 2-A, declaring verbally a failure of elections in Maidan just to ease their aggression and so that we could pull-out of the place freely.It clearly appears from the very report of Datu-Imam to the Comelec that she did not conduct any proceeding, summary or otherwise, to find out whether any of the legal grounds for the suspension or postponement or the declaration of failure of the election actually existed in the barangay concerned.Notice Was Irregular

Finally and very significantly, the electorate was not given ample notice of the exact schedule and venue of the election. The election officer herselfrelates: 19

When the tension was slightly alleviated, I directed the military personnel to pull-out of the Municipio and withdrew to a nearby Barangay (for safety) where some of the militaries (sic) were deployed. After planning and coordinating with the Batallion (sic) Commander, we waited for the additional troups (sic) that arrived at around 8:30 in the evening. At the stroke of 9:00 o'clock, we started for Maidan via the national Highway thru the Municipality of Balindong and others thru a short-cut way (sic) eastward of Tugaya. Utilizing the election paraphernalia earlier shipped by the Commission as I have requested (sic) and a ballot box from the PES, we went on with the election (after announcing it over the mosque) peacefully orderly despite the tiredness (sic) and exhaustion felt by the people the whole day waiting/expecting for the election as I have assured them earlier (sic). . . .As can be gleaned easily from the above report, the electorate of Barangay Maidan was not given due notice that the election would push through after 9:00 p.m. that same day. Apparently, the election officer's decision to hold the election on the night of August 30, 1997 was precipitate. Only after additional military troops had arrived at their site in a nearby barangay about 8:30 p.m. did the election officers proceed to Barangay Maidan. Arriving at Maidan, they allegedly proceeded to conduct the election "after announcing it over the mosque."Such abbreviated announcement "over the mosque" at such late hour did NOT constitute sufficient notice to the electorate. Consequently, not the entire electorate or even a respectable number could have known of the activity and actually participated therein or voluntarily and discerningly chosen not to have done so.Indeed, the Court in Hassan v. Comelec 20 held that the notice given on the afternoon of the election day resetting the election to the following day and transferring its venue was "too short." We said that "[t]o require the voters to come to the polls on such short notice was highly impracticable. . . . It is essential to the validity of the election that the voters have notice in some form, either actual or constructive, of the time, place and purpose thereof. 21 The time for holding it must be authoritatively designated in advance." 22

In the case at bar, the announcement was made only minutes before the supposed voting. If one-day notice was held to be insufficient in Hassan, the much shorter notice in the present case should all the more be declared wanting. It should in fact be equated with "no notice."In sum, the "election" supposedly held for officials of Barangay Maidan cannot be clothed with any form of validity. It was clearly unauthorized and invalid. It had no legal leg to stand on. Not only did the suspension/postponement not comply with the procedure laid down by law and the Comelec Rules, neither was there sufficient notice of the time and date when and the place where it would actually be conducted. It was thus as if no election was held at all. Hence, its results could not determine the winning punong barangay.WHEREFORE, the Petition is hereby GRANTED and the assailed Resolution SET ASIDE. The proclamation of private respondent as punong barangay is hereby declared VOID. Respondent Comelec is ORDERED to conduct a special election for punong barangay of Maidan, Tugaya, Lanao del Sur as soon as possible. No pronouncement as to costs.SO ORDERED.Davide, Jr., C.J., Melo, Puno, Kapunan, Mendoza, Quisumbing, Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.Bellosillo, J., no part. Did not take part in deliberation.Vitug, J., abroad on official business.De Leon, Jr., see dissent.Purisima, J., I join the dissent of Mr. Justice de Leon.# Separate OpinionsDE LEON, JR., J., dissenting opinion;With due respect, I dissent from the majority decision or ponencia of Mr. Justice Artemio V. Panganiban which grants the petition in the case at bench.

Before us is a special civil action for certiorari under Rule 65 which seeks to set aside the Resolution 1 dated June 8, 1999 of the Commission on Elections (COMELEC) en banc in SPA Case No. 97-276, denying petitioner's petition to declare a failure of election in Precinct No. 12, Barangay Maidan, Tugaya, Lanao del Sur and to annul the proclamation of private respondent and seven (7) others as winners of the August 30, 1997 barangay special election.The petitioner captioned and erroneously stated that the nature of this petition is a "petition for review oncertiorari." However, in this verified petition, the petitioner alleges that respondent COMELEC "acted without or in excess of jurisdiction and/or grave abuse of discretion:" (a) in dismissing the petition in SPA No. 97-276 for alleged lack of merit; (b) in not declaring a failure of election on August 30, 1997 and not calling for a special election in Precinct No. 12, Barangay Maidan, Tugaya, Lanao del Sur; and (c) in not declaring as illegal, null and void ab initio the proclamation on August 30, 1997 of private respondent as the duly elected Punong Barangay of Barangay Maidan. Petitioner then prays that COMELEC's assailed Resolution be reversed, the proclamation of private respondent as Punong Barangay be annulled and that COMELEC be ordered to set a special election in the same precinct or barangay. Considering the well-settled rule that what determines the nature of action are the allegations of the complaint or petition, and the character of the relief sought, 2 and considering the interest of justice, we accordingly treat this petition as a special civil action for certiorari under Rule 65.During the May 12, 1997 barangay election, petitioner Hadji Rasul Batabor Basher, the incumbent punong barangay, and private respondent Abulkair Ampatua were candidates for the position of punong barangay. However, there was a failure of election in Precinct No. 12, the lone precinct of Barangay Maiden, prompting the COMELEC to reset the election to June 11, 1997. Unfortunately, there was again a failure of election. Election was reset to August 30, 1997.Reports submitted to the COMELEC indicated that election was held as re-scheduled, and that private respondent along with Monatao Ebrahem, Lontowa Pokaan, Baser Abdala, Saadia Gonteng, Kodos Mangebarat, Bonsa Mabatao and Kamilo Hadji Rasul were proclaimed as duly elected punong barangay and barangay kagawads, respectively, of Barangay Maidan, Tugaya, Lanao del Sur.In his letters dated September 2, 1997 3 and September 5, 1997 4 to the COMELEC, petitioner requested that a failure of election be declared in Precinct No. 12. Petitioner claimed:xxx xxx xxxThat in the early morning of August 30, 1997, I together with other candidates for Barangay Officials and registered voters of Precinct No. 12, Barangay Maidan, and several others including local officials and some candidates of other barangays, were in the Municipal Hall of Tugaya, Lanao del Sur to observe and witness the releases (sic) of Ballot boxes and other election paraphernalias (sic) intended for the eight (8) barangays where special elections will be conducted including barangay Maidan;That the ballot boxes and other election paraphernalia for the seven (7) barangays were released to the Board of Election tellers and the special elections therein have (sic) functioned but in Barangay Maidan, Tugaya, Lanao del Sur, there was again a failure of election thereat (sic) because of the disagreement among candidates and watchers on (sic) the venue of the voting on account of the presence of an estimated number (sic) of two hundred (200) heavily armed persons in the nearby premises of the Polling Place (sic) of Precinct No. 12, Barangay Maidan at Cayagan Elementary School who were determined to commit violence or disrupt and/or disturb the election therein to ensure the victories of their beloved candidates;That on account of said serious disagreement and the intercession of local officials, civic and religious not to conduct the special election in Barangay Maidan to avoid bloodshed and loss of lives and damage to properties, it was agreed that no election will be held and so the Acting Election Officer, Mrs. Diana T. Datu Imam, delivered and turn (sic) over the ballot box containing all election paraphernalia intended for Barangay Maidan, Tugaya, Lanao del Sur to Malic Bantuas, OIC Satition (sic) Commander or Chief of Police of said Municipality as evidenced by an acknowledgment Receipt signed by said OIC Station Commander xerox copy of which is hereto attached marked as Annex "A" and formed integral part hereof;

That after turning over and delivery of said ballot box to the aforesaid OIC Station Commander, the Acting Election Officer left and never returned to the Municipal Hall where I and other candidates had been waiting for further advice from the same Election Officer;xxx xxx xxxThat to my great surprise with other candidates for barangay officials in our barangay and the electors thereat (sic), we learned on the following morning of August 31, 1997, that Acting Election Officer and her alleged designated Board of Election Teller's conducted an election in an unknown place at around 2:00 A.M. of August 31, 1997, without any notice to me and other candidates and the electors themselves (sic) and then allegedly proclaimed some candidates for Punong Barangay and Barangay Kagawads as winners. 5

xxx xxx xxxIn her unrebutted report to COMELEC Commissioner Manolo B. Gorospe, Election Officer Mrs. Diana T. Datu Imam recounted the events that took place on August 30, 1997 as follows:xxx xxx xxxPrior to the Election, on August 29, 1997, I coordinated with the Battalion Commander, Col. Luciano Campos of Malanang, Lanao del Sur and discussed the prevailing peace and order condition of (sic) Tugaya. Later, I proceeded to the Municipality of Pualas to personally confer with the my (sic) Military In-Charge regarding probable causes of failure of elections that might be imposed (sic) by the people who doesn't (sic) want an election. At 1:30 in the afternoon, the military personnel were deployed in Tugaya on that same day (sic).On Election Day, as I was approaching the PNP Headquarters, some religious leaders advised me not to pursue with the election because an election in Tugaya will cause trouble and might trigger bloodshed. The Mayor invited me for a short conference and furnished me a copy of then spurious resolution to bar the holding of election. In return, I gave him a copy of the Memo of Atty. Pio Jose S. Joson and proceeded immediately to distribute the Election Paraphernalia to the respective Military BETs.Without further ado, I personally escorted the BETs to their respective polling places westward (sic) of Tugaya at the same time directing the Military to go eastward for Brgy. Maidan, so that I will be going back (sic) to personally supervise their election after delivering the 7 Barangays (sic).When I returned to certain (sic) the situation in Maidan, the Mayor, being too hysterical, yelled and threatened me to declare failure of elections in Maidan. When I insisted to personally confirm the probable cause of bloodshed (at Maidan), his armed followers/escorts pointed their guns to me (sic) and my escorts. Likewise, my military escorts pointed their guns to (sic) the mayor and his men men (sic) "Man to Man." The Datus and religious leaders pacified us at the PNP Headquarters.After a couple of hours, the military officer and I agreed to adapt (sic) another strategy just to pursue with the elections in Maidan hook or by crook. Considering that they forcibly took away from us the ballot box containing paraphernalia of Maidan, I didn't have any recourse but give them (sic). I turned-over the ballot box to the Acting Chief of Police, Malik Bantuas with proper receipt, taking away from the box the CEF 2 & 2-A, declaring verbally a failure of elections in Maidan just to ease their aggression and so that we could pull-out of the place freely (sic).When the tension was slightly alleviated, I directed the military personnel to pull-out of the Municipio and withdrew to a nearby Barangay (for safety) where some of the militaries (sic) were deployed. After planning and coordinating with the Batallion (sic) Commander, we waited for the additional troups (sic) that arrived at around 8:30 in the evening. At the stroke of 9:00 O'clock, we started for Maidan via the national Highway thru the Municipality of Balindong and others thru a short-cut way (sic) eastward of Tugaya. Utilizing the election paraphernalia earlier shipped by the Commission as I have requested (sic) and a ballot box from the PES, we went on with the election (after announcing it over the mosque) peacefully and orderly despite the tiredness (sic) and exhaustion felt by the people the whole day waiting/expecting for the election as I have assured them earlier (sic). The people were very thankful and relieved because the alleged report of creating bloodshed were brazen lie and merely tricks (sic).The Special Elections in Tugaya was finished at 3 O-clock in the morning. All of the 8 Barangays functioned. 6

Petitioner then filed a petition with the COMELEC, docketed as SPA Case No. 97-276, praying that the barangay special election in Precinct No. 12 be declared a failure and that the proclamation of private respondent and the

other kagawads be declared null and void. The COMELEC dismissed the petition and found that the barangay special election was held in fact in Barangay Maidan and that it started only at 9:00 o'clock p.m. due to the presence of the Mayor's armed followers who earlier in the day confiscated the original ballot box and pointed their guns at Election Officer Datu Imam and her military escorts. Hence, COMELEC held that the said election is valid inasmuch as Section 22, Article IV of COMELEC Resolution No. 2971 permits the casting of ballots even after 3:00 o'clock p.m. if there are voters within thirty (30) meters from the polling place who have not cast their votes. The COMELEC also considered the importance attached to barangay elections by the barangay electorate as evidenced by the fact that voters of the said Precinct No. 12, which significantly is the lone precinct in Barangay Maidan, continued to stay within the vicinity of the polling place obviously to be able to vote even when the commencement of voting has long been delayed. The COMELEC stressed that this was precisely the case in Barangay Maidan, considering that the barangay election therein has already been postponed twice. The COMELEC pointed out that the two (2) conditions for declaring a failure of election cited in Mitmug v. COMELEC, 7namely (1) no voting has taken place in the precinct or precincts on the date fixed by law or, even if there was voting, the election nevertheless results in failure to elect, and (2) the votes not cast would affect the result of the election, are not present in this case.Dissatisfied, petitioner filed the instant petition.The petition is not meritorious.Petitioner assails the validity of the August 30, 1997 barangay special election on two (2) grounds: first, as to the time when it was conducted, and second, as to the place where it was held. It is not disputed that the said barangay special election in Barangay Maidan was finally conducted from 9:00 o'clock p.m. on August 30, 1997 until 3:00 o'clock a.m. of the following day in view of the presence of the Mayor's armed followers who earlier in the day pointed their guns at Election Officer Datu Imam and her military escorts. It cannot be denied that the COMELEC has the power to declare a failure of election. 8

Petitioner, alleges that candidates and voters were not given prior notice that the said barangay special election would take place in the evening of August 30, 1997; that the designated time for the special election was contrary to Section 22, Article IV of COMELEC Resolution No. 2971, which specifies that voting hours shall promptly start at 7:00 o'clock a.m. and shall end at 3:00 o'clock p.m.; and that the barangay election was held at the residence of a former mayor, allegedly in an area far from the designated polling place, and that only one or a few individuals allegedly accomplished the ballots. As a consequence thereof, petitioner, his running mates for barangay kagawad and their respective supporters were allegedly unable to cast their votes thereby warranting a declaration by the COMELEC that there was a failure of election.The time during which the election in Barangay Maidan was conducted on August 30, 1997 was somewhat unusual due to the extraordinary circumstances. However, that it was allegedly contrary to COMELEC Resolution No. 2971 and Section 190 of the Omnibus Election Code was not actually so. We bear in mind our disquisition in Hassan v.COMELEC 9 that:It is essential to the validity of the election that the voters have notice in some form, either actual or constructive, of the time, place and purpose thereof. The time for holding it must be authoritatively designated in advance. The requirement of notice even becomes stricter in cases of special elections where it was called by some authority after the happening of a condition precedent, or at least there must be a substantial compliance therewith so it may fairly and reasonably be said that the purpose of the statute has been carried out. The sufficiency of notice is determined on whether the voters generally have knowledge of the time, place and purpose of the elections so as to give them full opportunity to attend the polls and express their will or on other hand, whether the omission resulted in depriving a sufficient number of the qualified electors of the opportunity of exercising their franchise so as to change the result of the election. 10

In Hassan which involves a municipal election, we held that notice given in the afternoon of May 28, 1995, resetting the special election to May 29, was insufficient. However, in the case at bench which involves a barangay special election in Precinct No. 12 which is the sole precinct in Barangay Maidan, the announcement was made in the mosque a few hours before voting actually commenced. Unlike Hassan, the circumstances of the case at bench, impel us to arrive at a different conclusion. In Hassan, we found that only 328 out of the 1,546 registered

voters in five (5) precincts of Madalum, Lanao del Sur were able to cast their votes. In the case at bench, the records are bereft of any evidence that the said announcement or notice made in the mosque of Barangay Maidan whose populace is predominantly Muslim living in the small territorial jurisdiction of said barangay, resulted in the disenfranchisement of a substantial number of voters and that the votes not cast would materially affect the results of the election. Petitioner merely alleges that private respondent, who is one of his opponents for the position of punong barangay, garnered 250 votes whereas he (petitioner) was credited with only 15 votes. Petitioner disputes the probability of these results in view of the fact that he was the incumbent punong barangay with several relatives, friends and supporters in Barangay Maidan. Apart from his bare assertions, there was no indication in the subject petition, much less evidence, as to the total number of registered voters in Barangay Maidan and the number of voters who were allegedly unable to exercise their right of suffrage in the said barangay special election.With respect to petitioner's allegation that the barangay election in Barangay Maidan was held at the house of former Mayor Alang S. Fukunum in Pandiaranao, Tugaya, Lanao del Sur, we find the same unworthy of credence. In support of his allegation, petitioner presented the affidavits of Cpl. Conrado Doroy, Cpl. Ale Garcia and Pfc. Ferdinand Bangayan. However, as found by the COMELEC, the said affiants testified before the Provincial Election Supervisor of Lanao del Sur that voting was actually held in Barangay Maidan. More importantly, the said affiants executed another affidavit 11 disclaiming the contents of their first affidavit on the ground that they were "ready made" and that they had no knowledge of its contents as their first affidavit was not translated to them in the vernacular. In his petition before this Court, petitioner alleges that the barangay election was held at the house of the former mayor while in his affidavit, 12 which was executed three (3) days after the barangay special election, he states that the election was allegedly held at an unknown place. Those conflicting allegations cast doubt on the petitioner's credibility. On the other hand, this Court, not being a trier of facts, has to give due weight and credence to the findings of facts of COMELEC, and more particularly to the unrebutted Report 1 of Election Officer Datu Imam that the subject barangay special election, was in fact held in Barangay Maidan, Tugaya, Lanao del Sur, and that the registered voters of said barangay were sufficiently notified as to the place and time of said barangay special election which was in fact a neighborhood election. The notification or announcement was made in the mosque in that barangay because the voters of Barangay Maidan predominantly Muslim.The power to declare a failure of election and to set aside the results thereof is an extraordinary remedy. As early as Mandac v. Samonte, 14 we held that courts should be slow in nullifying elections, exercising the power only when it is shown that the irregularities and frauds are so numerous as to show an unmistakable intention or design to defraud, and which in fact defeat the true expression of the will of the electorate. 15 As a rule, therefore, the following conditions must be satisfied before the COMELEC can favorably act upon a petition to declare a failure of election: (1) that no voting has taken place in the precinct or precincts on the date fixed by law or, even if there was voting, the elections nevertheless result in a failure to elect; and (2) the votes not cast would affect the result of the election. 16 In the light of the facts as borne in the records, these two conditions do not obtain in the case at bench. Consequently, in Balindong v. COMELEC, 17 and Co v. COMELEC, 18 we refused to declare a failure of election despite alleged irregularities in the conduct of elections in the absence of evidence that the right of suffrage of a substantial portion of the electorate was prejudiced thereby. We find no compelling reason to deviate from these jurisprudential rulings of this Court. In the case at bar, there is certainly absence of evidence that the right of suffrage of a substantial portion of the electorate of Barangay Maidan was allegedly prejudiced in the said barangay special election in Precinct No. 12 which is the only precinct of the said barangay. On the other hand, to grant the Petition, in the light of the unique circumstances in this case, means to declare a failure of the barangay special election for the third time, and thereby unwittingly frustrate the will of the majority of the barangay electorate to elect the private respondent as Punong Barangay and to reject the petitioner who resorted to legal technicalities and relied on the presence of the threatening armed followers of the Mayor who is obviously sympathetic to the petitioner. Is that just and equitable?IN VIEW OF ALL THE FOREGOING, I vote to deny the Petition. It is my considered opinion that respondent COMELEC, in rendering its subject Resolution dated June 8, 1999 in SP Case No. 97-276, did not act with grave abuse of discretion. The Petition in the case at bench should be as it is hereby DISMISSED.1âwphi1.nêt

G.R. No. 160427 September 15, 2004POLALA SAMBARANI, JAMAL MIRAATO, SAMERA ABUBACAR and MACABIGUNG MASCARA, petitioners, vs.COMMISSION ON ELECTIONS and EO ESMAEL MAULAY,Acting Election Officer, Tamparan, Lanao del Sur or whoever is acting on his behalf, respondents.D E C I S I O NCARPIO, J.:The CaseChallenged in this petition for certiorari1 with prayer for temporary restraining order and preliminary injunction is the Resolution of the Commission on Elections en banc ("COMELEC")2 dated 8 October 2003. The COMELEC declared a failure of election but refused to conduct another special election.The FactsIn the 15 July 2002 Synchronized Barangay and Sangguniang Kabataan Elections ("elections"), Polala Sambarani ("Sambarani"), Jamal Miraato ("Miraato"), Samera Abubacar ("Abubacar"), Macabigung Mascara ("Mascara") and Aliasgar Dayondong ("Dayondong") ran for re-election as punong barangay in their respective barangays, namely: Occidental Linuk, Pindolonan Moriatao Sarip, Talub, New Lumbacaingud, and Tatayawan South ("five barangays"), all in Tamparan, Lanao del Sur.Due to a failure of elections in eleven barangays in Lanao del Sur, the COMELEC issued Resolution No. 5479 setting special elections on 13 August 2002 in the affected barangays in Lanao del Sur including the five barangays. On 14 August 2002, Acting Election Officer Esmael Maulay ("EO Maulay") issued a certification that there were no special elections held on 13 August 2002.Consequently, Sambarani, Miraato, Abubacar, Mascara and Dayondong ("joint-petitioners") filed a Joint Petition seeking to declare a failure of elections in the five barangays and the holding of another special election. The Joint Petition attributed the failure of the special elections to EO Maulay’s non-compliance with COMELEC Commissioner Mehol K. Sadain’s ("Commissioner Sadain") directive. Commissioner Sadain had directed EO Maulay to use the Autonomous Region of Muslim Mindanao ("ARMM") 2001 computerized Voter’s List and the Voter’s Registration Records of the Provincial Election Officer during the December 2001 registration of new voters.The parties did not attend the hearing scheduled on 11 September 2002 despite due notice. In the 1 October 2002 hearing, counsel for joint-petitioners as well as EO Maulay and his counsel appeared. The COMELEC ordered the parties to submit their memoranda within 20 days. The COMELEC also directed EO Maulay to explain in writing why he should not be administratively charged for failing to comply with Commissioner Sadain’s directive. The joint-petitioners filed their Memorandum on 25 October 2002. EO Maulay did not file a memorandum or a written explanation as directed. The COMELEC considered the case submitted for resolution.On 8 October 2003, the COMELEC issued the assailed Resolution, disposing as follows:ACCORDINGLY, the Department of Interior and Local Government is hereby DIRECTED to proceed with the appointment of Barangay Captains and Barangay Kagawads as well as SK Chairmen and SK Kagawads in Barangays Occidental Linuk, Pindolonan Moriatao Sarip, Talub, Tatayawan South, and New Lumbacaingud, all of Tamparan, Lanao del Sur, in accordance with the pertinent provisions of Republic Act No. 7160, otherwise known as the Local Government Code of 1991, and other related laws on the matter.Let a copy of this Resolution be furnished to the Department of Interior and Local Government, the Municipality of Tamparan, Lanao [d]el Sur, and the respective Sangguniang Barangays of Barangays Occidental Linuk, Pindolonan Moriatao Sarip, Talub, Tatayawan South and New Lumbacaingud, of Tamparan.Finally, let a copy of this Resolution be furnished to the Law Department for Preliminary Investigation of Respondent ESMAEL MAULAY for possible commission of election offense/s, and consequently, the filing of administrative charges against him if warranted.SO ORDERED.3

Sambarani, Miraato, Abubacar and Mascara ("petitioners") filed the instant petition.4

The COMELEC’s RulingThe COMELEC agreed with petitioners that the special elections held on 13 August 2002 in the five barangays failed. The COMELEC, however, ruled that to hold another special election in these barangays as prayed for by petitioners is untenable. The COMELEC explained that it is no longer in a position to call for another special election since Section 6 of the Omnibus Election Code provides that "special elections shall be held on a date reasonably close to the date of the election not held, but not later than thirty days after cessation of the cause of such postponement." The COMELEC noted that more than thirty days had elapsed since the failed election.The COMELEC also pointed out that to hold another special election in these barangays will not only be tedious and cumbersome, but a waste of its precious resources. The COMELEC left to the Department of Interior and Local Government ("DILG") the process of appointing the Barangay Captains and Barangay Kagawads as well as the Sangguniang Kabataan ("SK") Chairmen and SK Kagawads in these barangays "in accordance with the Local Government Code of 1991 and other related laws on the matter."5

The IssuesPetitioners contend that the COMELEC acted with grave abuse of discretion amounting to lack of jurisdiction in –1. Denying the prayer to call for another special election in barangays Occidental Linuk, Pindolonan Moriatao Sarip, Talub, New Lumbacaingud ("subject barangays");2. Directing the DILG to proceed with the appointment of the barangay captains, barangay kagawads, SK chairmen and SK kagawads in the subject barangays;3. Not declaring the petitioners as the rightful incumbent barangay chairmen of their office until their successors have been elected and qualified.The Court’s RulingThe petition is meritorious.First Issue:Whether To Call Another Special ElectionPetitioners fault the COMELEC for not holding another special election after the failed 13 August 2002 special election. Petitioners insist that the special barangay and SK elections in the subject barangays failed because EO Maulay did not use the voter’s list used during the 2001 ARMM elections. Neither did Maulay segregate and exclude those voters whose Voter’s Registration Records ("VRRs") were not among those 500 VRRs bearing serial numbers 00097501 to 0009800 allocated and released to Tamparan. Finally, Maulay did not delete from the certified list of candidates the name of disqualified candidate Candidato Manding. Petitioners contend that COMELEC’s refusal to call another special election conflicts with established jurisprudence, specifically the ruling in Basher v. Commission on Elections.6

The Solicitor General supports the COMELEC’s stance that a special election can be held only within thirty days after the cause of postponement or failure of election has ceased. The Solicitor General also maintains that the DILG has the power to appoint and fill vacancies in the concerned elective barangay and SK offices.Section 2(1) of Article IX(C) of the Constitution gives the COMELEC the broad power to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall." Indisputably, the text and intent of this constitutional provision is to give COMELEC all the necessary and incidental powers for it to achieve its primordial objective of holding free, orderly, honest, peaceful and credible elections.7

The functions of the COMELEC under the Constitution are essentially executive and administrative in nature. It is elementary in administrative law that "courts will not interfere in matters which are addressed to the sound discretion of government agencies entrusted with the regulation of activities coming under the special technical knowledge and training of such agencies."8 The authority given to COMELEC to declare a failure of elections and to call for special elections falls under its administrative function.9

The marked trend in our laws has been to grant the COMELEC ample latitude so it can more effectively perform its duty in safeguarding the sanctity of our elections. But what if, as in this case, the COMELEC refuses to hold

elections due to operational, logistical and financial problems? Did the COMELEC gravely abuse its discretion in refusing to conduct a second special Barangay and SK elections in the subject barangays?Neither the candidates nor the voters of the affected barangays caused the failure of the special elections. The COMELEC’s own acting election officer, EO Maulay, readily admitted that there were no special elections in these barangays. The COMELEC also found that the Provincial Election Supervisor of Lanao del Sur and the Regional Election Director of Region XII did not contest the fact that there were no special elections in these barangays.An election is the embodiment of the popular will, the expression of the sovereign power of the people.10 It involves the choice or selection of candidates to public office by popular vote.11 The right of suffrage is enshrined in the Constitution because through suffrage the people exercise their sovereign authority to choose their representatives in the governance of the State. The fact that the elections involved in this case pertain to the lowest level of our political organization is not a justification to disenfranchise voters.COMELEC anchored its refusal to call another special election on the last portion of Section 6 of the Omnibus Election Code ( "Section 6") which reads:SEC. 6. Failure of election. – If, on account of force majeure, violence, terrorism, fraud, or other analogous cases the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect. (Emphasis supplied)The Court construed Section 6 in Pangandaman v. COMELEC,12 as follows –In fixing the date for special elections the COMELEC should see to it that: 1.] it should not be later than thirty (30) days after the cessation of the cause of the postponement or suspension of the election or the failure to elect; and, 2.] it should be reasonably close to the date of the election not held, suspended or which resulted in the failure to elect. The first involves a question of fact. The second must be determined in the light of the peculiar circumstances of a case. Thus, the holding of elections within the next few months from the cessation of the cause of the postponement, suspension or failure to elect may still be considered "reasonably close to the date of the election not held." (Emphasis supplied)The prohibition on conducting special elections after thirty days from the cessation of the cause of the failure of elections is not absolute. It is directory, not mandatory, and the COMELEC possesses residual power to conduct special elections even beyond the deadline prescribed by law. The deadline in Section 6 cannot defeat the right of suffrage of the people as guaranteed by the Constitution. The COMELEC erroneously perceived that the deadline in Section 6 is absolute. The COMELEC has broad power or authority to fix other dates for special elections to enable the people to exercise their right of suffrage. The COMELEC may fix other dates for the conduct of special elections when the same cannot be reasonably held within the period prescribed by law.More in point is Section 45 of the Omnibus Election Code ("Section 45") which specifically deals with the election of barangay officials. Section 45 provides:SEC. 45. Postponement or failure of election. – When for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other analogous causes of such nature that the holding of a free, orderly and honest election should become impossible in any barangay, the Commission, upon a verified petition of an interested party and after due notice and hearing at which the interested parties are given equal opportunity to be heard, shall postpone the election therein for such time as it may deem necessary.If, on account of force majeure, violence, terrorism, fraud or other analogous causes, the election in any barangay has not been held on the date herein fixed or has been suspended before the hour fixed by law for the closing of the voting therein and such failure or suspension of election would affect the result of the election, the Commission, on the basis of a verified petition of an interested party, and after due notice and hearing, at which

the interested parties are given equal opportunity to be heard shall call for the holding or continuation of the election within thirty days after it shall have verified and found that the cause or causes for which the election has been postponed or suspended have ceased to exist or upon petition of at least thirty percent of the registered voters in the barangay concerned.When the conditions in these areas warrant, upon verification by the Commission, or upon petition of at least thirty percent of the registered voters in the barangay concerned, it shall order the holding of the barangay election which was postponed or suspended. (Emphasis supplied)Unlike Section 6, Section 45 does not state that special elections should be held on a date reasonably close to the date of the election not held. Instead, Section 45 states that special elections should be held within thirty days from the cessation of the causes for postponement. Logically, special elections could be held anytime, provided the date of the special elections is within thirty days from the time the cause of postponement has ceased.Thus, in Basher13 the COMELEC declared the 27 May 1997 barangay elections a failure and set special elections on 12 June 1997 which also failed. The COMELEC set another special election on 30 August 1997 which this Court declared irregular and void. On 12 April 2000, this Court ordered the COMELEC "to conduct a special election for punong barangay of Maidan, Tugaya, Lanao del Sur as soon as possible." This despite the provision in Section 214 of Republic Act No. 6679 ("RA 6679")15 stating that the special barangay election should be held "in all cases not later than ninety (90) days from the date of all the original election."Had the COMELEC resolved to hold special elections in its Resolution dated 8 October 2003, it would not be as pressed for time as it is now. The operational, logistical and financial problems which COMELEC claims it will encounter with the holding of a second special election can be solved with proper planning, coordination and cooperation among its personnel and other deputized agencies of the government. A special election will require extraordinary efforts, but it is not impossible. In applying election laws, it would be better to err in favor of popular sovereignty than to be right in complex but little understood legalisms.16 In any event, this Court had already held that special elections under Section 6 would entail minimal costs because it covers only the precincts in the affected barangays.17

In this case, the cause of postponement after the second failure of elections was COMELEC’s refusal to hold a special election because of (1) its erroneous interpretation of the law, and (2) its perceived logistical, operational and financial problems. We rule that COMELEC’s reasons for refusing to hold another special election are void.Second and Third Issues: Whether the DILG may Appointthe Barangay and SK OfficialsPetitioners contend that the COMELEC gravely abused its discretion in directing the DILG to proceed with the appointment of Barangay Captains and Barangay Kagawads as well as SK chairmen and SK Kagawads in the four barangays. Petitioners argue that as the incumbent elective punong barangays in the four barangays,18 they should remain in office in a hold- over capacity until their successors have been elected and qualified. Section 5 of Republic Act No. 9164 ("RA 9164")19 provides:Sec. 5. Hold Over. – All incumbent barangay officials and sangguniang kabataan officials shall remain in office unless sooner removed or suspended for cause until their successors shall have been elected and qualified. The provisions of the Omnibus Election Code relative to failure of elections and special elections are hereby reiterated in this Act.RA 9164 is now the law that fixes the date of barangay and SK elections, prescribes the term of office of barangay and SK officials, and provides for the qualifications of candidates and voters for the SK elections.As the law now stands, the language of Section 5 of RA 9164 is clear. It is the duty of this Court to apply the plain meaning of the language of Section 5. Since there was a failure of elections in the 15 July 2002 regular elections and in the 13 August 2002 special elections, petitioners can legally remain in office as barangay chairmen of their respective barangays in a hold-over capacity. They shall continue to discharge their powers and duties as punong barangay, and enjoy the rights and privileges pertaining to the office. True, Section 43(c) of the Local Government Code limits the term of elective barangay officials to three years. However, Section 5 of RA 9164 explicitly provides that incumbent barangay officials may continue in office in a hold over capacity until their successors are elected and qualified.

Section 5 of RA 9164 reiterates Section 4 of RA 6679 which provides that "[A]ll incumbent barangay officials xxx shall remain in office unless sooner removed or suspended for cause xxx until their successors shall have been elected and qualified." Section 8 of the same RA 6679 also states that incumbent elective barangay officials running for the same office "shall continue to hold office until their successors shall have been elected and qualified."The application of the hold-over principle preserves continuity in the transaction of official business and prevents a hiatus in government pending the assumption of a successor into office.20 As held in Topacio Nueno v. Angeles,21 cases of extreme necessity justify the application of the hold-over principle.WHEREFORE, we GRANT the instant petition. The Resolution of the Commission on Elections dated 8 October 2003 is declared VOIDexcept insofar as it directs its Law Department to conduct a preliminary investigation of Esmael Maulay for possible commission of election offenses. Petitioners have the right to remain in office as barangay chairmen in a hold-over capacity until their successors shall have been elected and qualified. The Commission on Elections is ordered to conduct special Barangay elections in Barangays Occidental Linuk, Pindolonan Moriatao Sarip, Talub, New Lumbacaingud, all in Tamparan, Lanao del Sur within thirty (30) days from finality of this decision.SO ORDERED.

G.R. No. 133676 April 14, 1999TUPAY T. LOONG, petitioner, vs.COMMISSION ON ELECTIONS and ABDUSAKUR TAN, respondents.YUSOP JIKIRI, intervenor. PUNO, JIn a bid to, improve our elections, Congress enacted R.A. No. 8436 on December 22, 1997 prescribing the adoption of an automated election system. The new system was used in the May 11, 1998 regular elections held in the Autonomous Region in Muslim Mindanao (ARMM) which includes the Province of Sulu. Atty. Jose Tolentino, Jr. headed the COMELEC Task Force to have administrative oversight of the elections in Sulu.The voting in Sulu was relatively peaceful and orderly. 1 The problem started during the automated counting of votes for the local officials of Sulu at the Sulu at the Sulu State College. At about 6 a.m. of May 12, 1998, some election inspectors and watchers informed Atty. Tolentino, Jr. of discrepancies between the election returns and the votes cast for the mayoralty candidates in the municipality of Pata. Some ballots picked at random by Atty. Tolentino, Jr. confirmed that votes in favor of a mayoralty candidate were not reflected in the printed election returns. He suspended the automated counting of ballots in Pata and immediately communicated the problem to the technical experts of COMELEC and the suppliers of the automated machine. After the consultations, the experts told him that the problem was caused by misalignment of the ovals opposite the names of candidates in the local ballots. They found nothing wrong with the automated machines. The error was in the printing of the local ballots, as a consequence of which, the automated machines failed to read them correctly. 2

At 12:30 p.m. of the same day, Atty. Tolentino, Jr. called for an emergency meeting of the local candidates and the military-police officials overseeing the Sulu elections. Those who attended were the various candidates for governor, namely, petitioner Tupay Loong, private respondent Abdusakar Tan, intervenor Yusop Jikiri and Kimar Tulawie. Also in attendance were Brig. Gen. Edgardo Espinosa, AFP, Marine forces, Southern Philippines, Brig. Gen. Percival Subala, AFP, 3rd Marine Brigade, Supt. Charlemagne Alejandrino, Provincial Director, Sulu, PNP Command and congressional candidate Bensandi Tulawie. 3

The meeting discussed how the ballots in Pata should be counted in light of the misaligned ovals. There was lack of agreement. Those who recommended a shift to manual count were Brig. Generals Espinosa and Subala, PNP Director Alejandro, gubernational candidates Tan and Tulawie and congressional candidate Bensandi Tulawie. Those who insisted on an automated count were gubernational candidates Loong and Jikiri. In view of their differences in opinion, Atty. Tolentino, Jr. requested the parties to submit their written position papers.  4

Reports that the automated counting of ballots in other municipalities in Sulu was not working well were received by the COMELEC Task Force. Local ballots in five (5) municipalities were rejected by the automated machines. These municipalities were Talipao, Siasi, Tudanan, Tapul and Jolo. The ballots were rejected because they had the wrong sequence code. 5

Private respondent Tan and Atty. Tolentino, Jr. sent separate commucations to the COMELEC en banc in Manila. Still, on May 12, 1998, Tan requested for the suspension of the automated counting of ballots throughout the Sulu province. 6 On the same day, COMELEC issued Minute Resolution No. 98-1747 ordering a manual count but only in the municipality of Pata. The resolution reads: 7

xxx xxx xxxIn the matter of the Petition dated May 12, 1998 of Abdusakur Tan, Governor, Sulu, to suspend or stop counting of ballots through automation (sic) machines for the following grounds, quoted to wit:1. The Election Returns for the Municipality of Pata, Province of Sulu-District II do not reflect or reveal the mandate of the voters:DISCUSSIONSThat the watchers called the attention of our political leaders and candidates regarding their discovery that the election returns generated after the last ballots for a precinct is scanned revealed that some candidates obtained zero votes, among others the Provincial Board Members, Mayor, Vice-Mayor, and the councilors for the LAKAS-NUCD-UMDP;That the top ballot, however, reveals that the ballots contained votes for Anton Burahan, candidate for Municipal Mayor while the Election Return shows zero vote;That further review of the Election Return reveals that John Masillam, candidate for Mayor under the LAKAS-NUCD-UMDP-MNLF obtains (sic) 100% votes of the total number of voters who actually voted;The foregoing discrepancies were likewise noted and confirmed by the chairmen, poll clerks and members of the Board of Election Inspectors (BEI) such as Rena Jawan, Amkanta Hajirul, Dulba Kadil, Teddy Mirajuli, Rainer Talcon, Mike Jupakal, Armina Akmad, Romulo Roldan and Lerma Amrawali to mention some;The Pata incident can be confirmed by no less than Atty. Jose Tolentino, Head, task Force Sulu, whose attention was called regarding the discrepancies;The foregoing is a clear evidence that the automated machine (scanner) cannot be relied upon as to truly reflect the contents of the ballots. If such happened in the Municipality of Pata, it is very possible that the same is happening in the counting of votes in the other municipalities of this province. If this will not be suspended or stopped, the use of automated machines will serve as a vehicle to frustrate the will of the sovereign people of Sulu;Wherefore, the foregoing premises considered and in the interest of an honest and orderly election, it is respectfully prayed of this Honorable Commission that an Order be issued immediately suspending or stopping the use of the automated machine (scanner) in the counting of votes for all the eighteen (18) municipalities in the Province of Sulu and in lieu thereof, to avoid delay, counting be done through the usual way known tested by us.While the commission does not agree with the conclusions stated in the petition, and the failure of the machine to read votes may have been occasioned by other factors, a matter that requires immediate investigation, but in the public interest, the Commission,RESOLVED to grant the Petition dated May 12, 1998 and to Order that the counting of votes shall be done manually in the Municipality of PATA, the only place in Sulu where the automated machine failed to read the ballots, subject to notice to all parties concerned.Before midnight of May 12, 1998, Atty. Tolentino, Jr. was able to send to the COMELEC en banc his report and recommendation, urging the use of the manual count in the entire Province of Sulu, viz: 8

The undersigned stopped the counting in the municipality of Pata since he discovered that votes for a candidate for mayor was credited in favor of the other candidate. Verification with the Sulu Technical Staff, including Pat Squires of ES & S, reveals that the cause of the errors is the way the ballot was printed. Aside from misalignment of the ovals and use of codes assigned to another municipality (which caused the rejection of all local ballots in one precinct in Talipao), error messages appeared on the screen although the actual condition of the ballots

would have shown a different message. Because of these, the undersigned directed that counting for all ballots in Sulu be stopped to enable the Commission to determine the problem and rectify the same. It is submitted that stopping the counting is more in consonance with the Commission's mandate than proceeding with an automated but inaccurate count.1âwphi1.nêtIn view of the error discovered in Pata and the undersigned's order to suspend that counting, the following documents were submitted to him.1. Unsigned letter dated May 12, 1998 submitted by Congressman Tulawie for manual counting and canvassing;2. Petition of Governor Sakur Tan for manual counting;3. Position paper of Tupay Loong, Benjamin Loong, and Asani Tamang for automated count;4. MNLF Position for automated count; and5. Recommendation of General E.V. Espinosa, General PM Subala, and PD CS Alejandrino for manual count;Additional marines have been deployed at the SSC. The undersigned is not sure if it is merely intended to tame a disorderly crowd, inside and outside SSC, or a show of force.It is submitted that since an error was discovered in a machine which is supposed to have an error rate of 1: 1,000,000, not a few people would believe that this error in Pata would extend to the other municipalities. Whether or not this true, it would be more prudent to stay away from a lifeless thing that has sown tension and anxiety among and between the voters of Sulu.Respectfully submitted:12 May 1998(Sgd.) JOSE M. TOLENTINO, JR.The next day, May 13, 1998, COMELEC issued Resolution No. 98-1750 approving, Atty. Tolentino, Jr.'s recommendation and the manner of its implementation as suggested by Executive Director Resurrection Z. Borra. The Resolution reads: 9

In the matter of the Memorandum dated 13 May 1998 of Executive Director Resurrection Z. Borra, pertinent portion of which is quoted as follows:In connection with Min. Res. No. 98-1747 promulgated May 12, 1998 which resolved to order that the counting of votes shall be done manually in the municipality of Pata, the only place in Sulu where the automated counting machine failed to read the ballots, subject to notice to all parties concerned, please find the following:1. Handwritten Memo of Director Jose M. Tolentino, Jr., Task Force Head, Sulu, addressed to the Executive Director on the subject counting and canvassing in the municipality of Pata due to the errors of the counting of votes by the machine brought about by the error in the printing of the ballot, causing misalignment of ovals and use of codes assigned to another municipality.He recommended to revert to the manual counting of votes in the whole of Sulu. He attached the stand of Congressman Tulawie, Governor Sakur Tan and recommendation of Brigadier General Edgardo Espinosa, General Percival Subla, P/Supt. Charlemagne Alejandrino for manual counting. The position paper of former Governor Tupay Loong, Mr. Benjamin Loong and Mr. Asani S. Tammang, who are candidates for Governor and Congressman of 1st and 2nd Districts respectively, who wanted the continuation of the automated counting.While the forces of AFP are ready to provide arm (sic) security to our Comelec officials, BEIs and other deputies, the political tensions and imminent violence and bloodshed may not be prevented, as per report received, the MNLF forces are readying their forces to surround the venue for automated counting and canvassing in Sulu in order that the automation process will continue.Director Borra recommends, that while he supports Minute Resolution No. 98-1747, implementation thereof shall be done as follows:1. That all the counting machines from Jolo, Sulu be transported back by C130 to Manila and be located at the available space at PICC for purposes of both automated and manual operations. This approach will keep the COMELEC officials away from violence and bloodshed between the two camps who are determined to slug each other as above mentioned in Jolo, Sulu. Only authorized political party and candidate watchers will be allowed in PICC with proper security, both inside and outside the perimeters of the venue at PICC.

2. With this process, there will be an objective analysis and supervision of the automated and manual operations by both the MIS and Technical Expert of the ES & S away from the thundering mortars and the sounds of sophisticated heavy weapons from both sides of the warring factions.3. Lastly, it will be directly under the close supervision and control of Commission on Elections En Banc.RESOLVED:1. To transport all counting machines from Jolo, Sulu by C130 to Manila for purposes of both automated and manual operations, with notice to all parties concerned;2. To authorize the official travel of the board of canvassers concerned for the conduct of the automated and manual operations of the counting of votes at PICC under the close supervision and control of the Commission En Banc. For this purpose, to make available a designated space at the PICC;3. To authorize the presence of only the duly authorized representative of the political parties concerned and the candidates watchers both outside and inside the perimeters of the venue at PICC.Atty. Tolentino, Jr. furnished the parties with copies of Minute Resolution No. 98-1750 and called for another meeting the next day, May 14, 1998, to discuss the implementation of the resolution. 10 The meeting was attended by the parties, by Lt. Gen. Joselin Nazareno, then Chief of the AFP Southern Command, the NAMFREL, media, and the public. Especially discussed was the manner of transporting the ballots and the counting machines to the PICC in Manila. They agreed allow each political party to have at least one (1) escort/watcher for municipality to acompany the flight. Two C130s were used for purpose. 11

On May 15, 1998, the COMELEC en banc issued Minute Resolution No. 98-1796 laying down the rules for the manual count, viz: 12

In the matter of the Memorandum dated 15 May 1998 of Executive Director Resurrection Z. Borra, quoted to wit:In the implementation of COMELEC Min. Resolution No. 98-1750 promulgated 13 May 1998 in the manual counting of votes of Pata, Sulu, and in view of the arrival of the counting machines, ballot boxes, documents and other election paraphernalia for the whole province of Sulu now stored in PICC, as well as the arrival of the Municipal Board of Canvassers of said Municipality in Sulu, and after conference with some members of the Senior Staff and Technical Committee of this Commission, the following are hereby respectfully recommended:1. Manual counting of the local ballots of the automated election system in Pata, Sulu;2. Automated counting of the national ballots considering that there are no questions raised on the National Elective Officials as pre-printed in the mark-sensed ballots;3. The creation of the following Special Boards of Inspectors under the supervision of Atty. Jose M. Tolentino, Jr., Task Force Head, Sulu, namely:a) Atty. Mamasapunod M. AguamMs. Gloria FernandezMs. Esperanza Nicolasb) Director Ester L. Villaflor-RoxasMs. Celia RomeroMs. Rebecca Macarayac) Atty. Zenaida S. SorianoMs. Jocelyn GuiangMa. Jacelyn Tand) Atty. Erlinda C. EchaviaMs. Theresa A. TorralbaMs. Ma. Carmen Llamase) Director Estrella P. de MesaMs. Teresita VelascoMs. Nelly Jaena4. Additional Special Board of Inspectors may be created when necessary.

5. The Provincial Board of Canvassers which by standing Resolution is headed by the Task Force Sulu Head shall consolidate the manual and automated results as submitted by the Municipal Boards of Canvassers of the whole province with two members composed of Directors Estrella P. de Mesa and Ester L. Villaflor-Roxas;6. The political parties and the candidates in Sulu as well as the Party-List Candidates are authorized to appoint their own watchers upon approval of the Commission',RESOLVED to approve the foregoing recommendations in the implementation of Min. Resolution No. 98-1750 promulgated on 13 May 1998 providing for the manual counting of votes in the municipality of Pata, Sulu.RESOLVED, moreover, considering the recommendation of Comm. Manolo B. Gorospe, Commissioner-In-Charge, ARMM, to conduct a parallel manual counting on all 18 municipalities of Sulu as a final guidance of the reliability of the counting machine which will serve as basis for the proclamation of the winning candidates and for future reference on the use of the automated counting machine.On May 18, 1998, petitioner filed his objection to Minute Resolution No. 98-1796, viz: 13

1. The minute resolution under agenda No. 98-1796 violates the provisions of Republic Act No. 8436 providing for an automated counting of the ballots in the Autonomous Region in Muslim Mindanao. The automated counting is mandatory and could not be substituted by a manual counting. Where the machines are allegedly defective, the only remedy provided for by law is to replace the machine. Manual counting is prohibited by law;2. There are strong indications that in the municipality of Pata the ballots of the said municipality were rejected by the counting machine because the ballots were tampered and/or the texture of the ballots fed to the counting machine are not the official ballots of the Comelec;3. The automated counting machines of the Comelec have been designed in such a way that only genuine official ballots could be read and counted by the machine;4. The counting machines in the other municipalities are in order. In fact, the automated counting has already started. The automated counting in the municipalities of Lugus and Panglima Tahil has been completed. There is no legal basis for the "parallel manual counting" ordained in the disputed minute resolution.Nonetheless, COMELEC started the manual count on the same date, May 18, 1998.On May 25, 1998, petitioner filed with this Court a petition for certiorari and prohibition under Rule 65 of the Rules of Court. He contended that: (a) COMELEC issued Minute Resolution Nos. 98-1747, 98-1750, and 98-1798 without prior notice and hearing to him; (b) the order for manual counting violated R.A. No. 8436; (c) manual counting gave "opportunity to the following election cheatings," namely:(a) The counting by human hands of the tampered, fake and counterfeit ballots which the counting machines have been programmed to reject (Section 7, 8 & 9 of Rep. Act 8436).(b) The opportunity to substitute the ballots all stored at the PICC. In fact, no less than the head of the COMELEC Task Force of Sulu, Atty. Jose M. Tolentino, Jr. who recommended to the COMELEC the anomalous manual counting, had approached the watchers of petitioners to allow the retrival of the ballots, saying "tayo, tayo lang mga watchers, pag-usapan natin," clearly indicating overtures of possible bribery of the watchers of petitioner (ANNEX E).(c) With the creation by the COMELEC of only 22 Boards of Election Inspectors to manually count the 1,194 precincts, the manipulators are given sufficient time to change and tamper the ballots to be manually counted.(d) There is the opportunity of delaying the proclamation of the winning candidates through the usually dilatory moves in a pre-proclamation controversy because the returns and certificates of canvass are already human (sic) made. In the automated counting there is no room for any dilatory pre-proclamation controversy because the returns and the MBC and PBC certificates of canvass are machine made and immediate proclamation is ordained thereafter.Petitioner then prayed:WHEREFORE, it is most especially prayed of the Honorable Court that:1. upon filing of this petition, a temporary restraining order be issued enjoining the COMELEC from conducting a manual counting of the ballots of the 1,194 precincts of the 18 municipalities of the Province of Sulu but instead proceed with the automated counting of the ballots, [preparation of the election returns and MBC, PBC

certificates of canvass and proclaim the winning candidates on the basis of the automated counting and consolidation of results;2. this petition be given due course and the respondents be required to answer;3. after due hearing, the questioned COMELEC En Banc Minute Resolutions of May 12, 13, 15, and 17, 1998 be all declared null and void ab initio for having been issued without jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction and for being in violation of due process of law;4. the winning candidates of the Province of Sulu be proclaimed on the basis of the results of the automated counting, automated election returns, automated MBC and PBC certificates of canvass;xxx xxx xxxOn June 8, 1998, private respondents Tan was proclaimed governor-elect of Sulu on the basis of the manual count. 14 Private respondents garnered 43,573 votes. Petitioner was third with 35,452 votes or a difference of 8,121 votes.On June 23, 1998, this Court required the respondents to file their Comment to the petition and directed the parties "to maintain the status quo prevailing at the time of the filing of the petition." 15 The vice-governor elect was allowed to temporarily discharge the powers and functions of governor.On August 20, 1998, Yusop Jikiri, the LAKAS-NUCD-UMDP-MNLF candidate for governor filed a motion for intervention and a Memorandum in Intervention. 16 The result of the manual count showed he received 38,993 votes and placed second. Similarly, he alleged denial of due process, lack of factual basis of the COMELEC resolutions and illegality of manual count in light of R.A. No. 8436. The Court noted his intervention. 17 A similar petition for intervention filed by Abdulwahid Sahidulla, a candidate for vice-governor, on October 7, 1998 was denied as it was filed too late.In due time, the parties filed their respective Comments. On September 25, 1998, the Court heard the parties in oral argument 18 which was followed by the submission of their written memoranda.The issues for resolution are the following:1. Whether or not a petition for certiorari and prohibition under Rule 65 of the Rules of Court is the appropriate remedy to invalidate the disputed COMELEC resolutions.2. Assuming the appropriateness of the remedy, whether or not COMELEC committed grave abuse of discretion amounting to lack of jurisdiction in ordering a manual count.2.a. Is there a legal basis for the manual count?2.b. Are its factual bases reasonable?2.c. Were the petitioner and the intervenor denied due process by the COMELEC when it ordered a manual count?3. Assuming the manual count is illegal and that its result is unreliable, whether or not it is proper to call for a special election for the position of governor of Sulu.We shall resolve the issues in seriatim.First. We hold that certiorari is the proper remedy of the petitioner. Section 7, Article IX (A) of the 1987 Constitution states that "unless 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." We have interpreted this provision to mean final orders, rulings and decisions of the powers. 19 Contrariwise, administrative orders of the COMELEC are not, as a general rule, fit subjects of a petition for certiorari. The main issue in the case at bar is whether the COMELEC gravely abused its discretion when it ordered a manual count of the 1998 Sulu local elections. A resolution of the issue will involve an interpretation of R.A. No. 8436 on automated election in relation to the broad power of the COMELEC under Section 2(1), Article IX(C) of the Constitution "to enforce and administer all laws and regulations relative to the conduct of an election . . .." The issue is not only legal but one of first impression and undoubtedly suffered with significance to the entire nation. It is adjudicatory of the right of the petitioner, the private respondents and the intervenor to the position of governor of Sulu. These are enough considerations to call for an exercise of the certiorari jurisdiction of this Court.Second. The big issue, one of first impression, is whether the COMELEC committed grave abuse of discretion amounting to lack of jurisdiction when it ordered a manual count in light of R.A. No. 8436. The post election

realities on ground will show that the order for a manual count cannot be characterized as arbitrary, capricious or whimsical.a. It is well established that the automated machines failed to read correctly the ballots in the municipality of Pata. A mayoralty candidate, Mr. Anton Burahan, obtained zero votes despite the representations of the Chairman of the Board of Election Inspectors and others that they voted for him. Another candidate garnered 100% of the votes.b. It is likewise conceded that the automated machines rejected and would not count the local ballots in the municipalities of Pata, Talipao, Siasi, Indanan, Tapal and Jolo.c. These flaws in the automated counting of local ballots in the municipalities of Pata, Talipao, Siasi, Indanan, Tapal and Jolo were carefully analyzed by the technical experts of COMELEC and the supplier of the automated machines. All of them found nothing wrong the automated machines. They traced the problem to the printing of local ballots by he National Printing Office. In the case of the of the municipality of Pata, it was discovered that the ovals of the local ballots were misaligned and could not be read correctly by the automated machines. In the case of the municipalities of Talipao, Siasi, Indanan, Tapal and Jolo, it turned out that the local ballots contained the wrong sequence code. Each municipality was assigned a sequence code as a security measure. Ballots with the wrong sequence code were programmed to be rejected by the automated machines.It is plain that to continue with the automated count in these five (5) municipalities would result in a grossly erroneous count. It cannot also be gainsaid that the count in these five (5) municipalities will affect the local elections in Sulu. There was no need for more sampling of locals ballots in these municipalities as they suffered from the same defects. All local ballots in Pata with misaligned ovals will be erroneously read by the automated machines. Similarly, all local ballots in Talipao, Siasi, Indanan, Tapal and Jolo with wrong sequence codes are certain to be rejected by the automated machines. There is no showing in the records that the local ballots in these five (5) municipalities are dissimilar which could justify the call for their greater sampling.Third. These failures of automated counting created post election tension in Sulu, a province with a history of violent elections. COMELEC had to act desively in view of the fast deteriorating peace and order situation caused by the delay in the counting of votes. The evidence of this fragile peace and order cannot be downgraded. In his handwritten report to the COMELEC dated May 12, 1998, Atty. Tolentino, Jr. stated:xxx xxx xxxAdditional marines have been deployed at the SSC. The undersigned is not sure if it is merely intended to tame a disorderly crowd inside and outside SSC, or a show of force.It is submitted that since an error was discovered in a machine which is supposed to have an error rate of 1:1,000,000, not a few people would believe that this error in Pata would extend to the other municipalities. Whether or not this is true, it would be more prudent to stay away from a lifeless thing that has shown tension and anxiety among and between the voters of Sulu.Executive Director Resurreccion Z. Borra, Task Force Head, ARMM in his May 13, 1998 Memorandum to the COMELEC likewise stated:xxx xxx xxxWhile the forces of AFP are ready to provide arm (sic) security to our COMELEC officials, BEI's and other deputies, the political tensions and imminent violence and bloodshed may not be prevented, as per report received, the MNLF forces are readying their forces to surround the venue for automated counting and canvassing in Sulu in order that automation process will continue.Last but not the least, the military and the police authorities unanimously recommended manual counting to preserve peace and order. Brig. Gen. Edgardo V. Espinosa, Commanding General, Marine Forces Southern Philippines, Brig. Gen. Percival M. Subala, Commanding General, 3rd Marine Brigade, and Supt. Charlemagne S. Alejandrino, Provincial Director, Sulu PNP Command explained that it". . . will not only serve the interest of majority of the political parties involved in the electoral process but also serve the interest of the military and police forces in maintaining peace and order throughout the province of Sulu."An automated count of the local votes in Sulu would have resulted in a wrong count, a travesty of the sovereignty of the electorate. Its aftermath could have been a bloodbath. COMELEC avoided this imminent probality by

ordering a manual count of the votes. It would be the height of irony if the Court condemns COMELEC for aborting violence in the Sulu elections.Fourth. We also find that petitioner Loong and intervenor Jikiri were not denied process. The Tolentino memorandum clearly shows that they were given every opportunity to oppose the manual in count of the local ballots in Sulu. They were orally heard. They later submitted written position papers. Their representatives escorted the transfer of the ballots and the automated machines from Sulu to Manila. Their watchers observed the manual count from beginning to end. We quote the Tolentino memorandum, viz:xxx xxx xxxOn or about 6:00 a.m. of May 12, 1998, while automated counting of all the ballots for the province of Sulu was being conducted at the counting center located at the Sulu State College, the COMELEC Sulu Task Force Head (TF Head) proceeded to the room where the counting machine assigned to the municipality of Pata was installed to verify the cause of the commotion therein.During the interview conducted by the TF Head, the members of the Board of Election Inspectors (BEI) and watchers present in said room stated that the counting machine assigned to the municipality of Pata did not reflect the true results of the voting thereat. The members of the BEI complained that their votes were not reflected in the printout of the election returns since per election returns of their precincts, the candidate they voted for obtained "zero". After verifying the printout of some election returns as against the official ballots, the TF Head discovered that votes cast in favor of a mayoralty candidate were credited in favor of his opponent.In his attempt to remedy the situation, the TF Head suspended the counting of all ballots for said municipality to enable COMELEC field technicians to determine the cause of the technical error, rectify the same, and thereafter proceed with automated counting. In the meantime, the counting of the ballots for the other municipalities proceeded under the automated system.Technical experts of the supplier based in Manila were informed of the problem and after numerous consultations through long distance calls, the technical experts concluded that the cause of the error was in the manner the ballots for local positions were printed by the National Printing Office (NPO), namely, that the ovals opposite the names of the candidates were not properly aligned. As regards the ballots for national positions, no error was found.Since the problem was not machine-related, it was obvious that the use of counting machines from other municipalities to count the ballots of the municipality of Pata would still result in the same erroneous count. Thus, it was found necessary to determine the extent of the error in the ballot printing process before proceeding with the automated counting.To avoid a situation where proceeding with automation will result in an erroneous count, the TF Head, on or about 11:45 a.m. ordered the suspension of the counting of all ballots in the province to enable him to call a meeting with the heads of the political parties which fielded candidates in the province, inform them of the technical error, and find solutions to the problem.On or about 12:30 p.m., the TF Head presided over a conference at Camp General Bautista (3rd Marine Brigade) to discuss the process by which the will of the electorate could be determined. Present during the meeting were:1. Brig. Gen. Edgardo EspinozaMarine Forces, Southern Philippines.2. Brig. Gen. Percival Subala3rd Marine Brigade3. Provincial Dir. Charlemagne AlejandrinoSulu PNP Command4. Gubernatorial Candidate Tupay LoongLAKAS-NUCD Loong Wing5. Gubernatorial Candidate Abdusakur TanLAKAS-NUCD Tan Wing6. Gubernatorial Candidate Yusop JikiriLAKAS-NUCD Tan Wing

7. Gubernatorial Candidate Kimar TulawieLAMMP8. Congressional Candidate Bensaudi TulawieLAMMPDuring said meeting, all of the above parties verbally advanced their respective positions. Those in favor of a manual count were:1. Brig. Gen. Edgardo Espinoza2. Brig. Gen. Percival Subala3. Provincial Dir. Charlemagne Alejandrino4. Gubernatorial Candidate Abdusakur Tan5. Gubernatorial Candidate Kimar Tulawie6. Congressional Candidate Bensaudi Tulawieand those in favor of an automated count were:1. Gubernatorial Candidate Tupay Loong2. Gubernatorial Candidate Yusop JikiriSaid parties were then requested by the TF Head to submit their respective position papers so that the same map be forwarded to the Commission en banc, together with the recommendations of the TF Head.The TF Head returned to the counting center at the Sulu State College and called his technical staff to determine the extent of the technical error and to enable him to submit the appropriate recommendation to the Commission en banc.Upon consultation with the technical staff, it was discovered that in the Municipality of Talipao, some of the local ballots were rejected by the machine. Verification showed that while the ballots were genuine, ballot paper bearing a wrong "sequence code" was used by the NPO during the printing process.Briefly, the following is the manner by which a "sequence code" determined genuineness of a ballot. A municipality is assigned a specific (except for Jolo, which assigned two (2) machines, and sharing of one (1) machine by two (2) municipalities, namely, H.P. Tahil and Maimbung, Apandami and K. Caluang, Pata and Tongkil and Panamao and Lugus). A machine is then assigned a specific "sequence code" as one of the security features to detect whether the ballots passing through it are genuine. Since a counting machine is programmed to read the specific "sequence code" assigned to it, ballots which bear a "sequence code" assigned to another machine/municipality, even if said ballots were genuine will be rejected by the machine.Other municipalities, such as Siasi, Indanan, Tapul and Jolo also had the same problem of rejected ballots. However, since the operators were not aware that one of the reasons for rejection of ballots is the use of wrong "sequence code", they failed to determine whether the cause for rejection of ballots for said municipalities was the same as that for the municipality of Talipao.In the case of "misaligned ovals", the counting machine will not reject the ballot because all the security features, such as "sequence code", are present in the ballot, however, since the oval is misaligned or not placed in its proper position, the machine will credit the shaded oval for the position where the machine is programmed to "read" the oval. Thus, instead of rejecting the ballot, the machine will credit the votes of a candidate in favor of his opponent, or in the adjacent space where the oval should be properly placed.It could not be determined if the other municipalities also had the same technical error in their official ballots since the "misaligned ovals" were discovered only after members of the Board of Election Inspectors of the Municipality of Pata complained that their votes were not reflected in the printout of the election results.As the extent or coverage of the technical errors could not be determined, the TF Head, upon consultation with his technical staff, was of the belief that it would be more prudent to count the ballots manually than to proceed with an automated system which will result in an erroneous count.The TF Head thus ordered the indefinite suspension of counting of ballots until such time as the Commission shall have resolved the petition/position papers to be submitted by the parties. The TF Head and his staff returned to Camp General Bautista to await the submission of the position papers of the parties concerned.

Upon receipt of the position papers of the parties, the TF Head faxed the same in the evening of May 12, 1998, together with his handwritten recommendation to proceed with a manual count. Attached are copies of the recommendations of the TF Head (Annex "1"), and the position papers of the Philippine Marines and Philippine National Police (Annex "2"), LAKAS-NUCD Tan Wing Annex (Annex "3"), Lakas-NUCD Loong Wing (Annex "4"), LAKAS-NUCD-MNLF Wing (Annex "5") and LAMMP (Annex "6"). Said recommendations and position papers were the bases for the promulgation of COMELEC Minute Resolution No. 98-1750 dated May 13, 1998 (Annex "7"), directing, among other things, that the ballots and counting machines be transported by C130 to Manila for both automated and manual operations.Minute Resolution No. 98-1750 was received by the TF Head through fax on or about 5:30 in the evening of May 13, 1998. Copies were then served through personal delivery to the heads of the political parties, with notice to them that another conference will be conducted at the 3rd Marine Brigade on May 14, 1998 at 9:00 o'clock in the morning, this time, with Lt. General Joselin Nazareno, then AFP Commander, Southern Command. Attached is a copy of said notice (Annex "8") bearing the signatures of candidates Tan (Annex "8-A") and Loong (Annex "8-B") and the representatives of candidates Tulawie (Annex "8-C") and Jikiri (Annex "8-D").On May 14, 1998, the TF Head presided over said conference in the presence of the heads of the political parties of Sulu, together with their counsel, including Lt. Gen. Nazareno, Brig. Gen. Subala, representatives of the NAMFREL, media and the public.After hearing the sides of all parties concerned, including that of NAMFREL, the procedure by which the ballots and counting machines were to be transported to Manila was finalized, with each political party authorized to send at least one (1) escort/watcher for every municipality to accompany the ballot boxes and counting machines from the counting center at the Sulu State College to the Sulu Airport to the PICC, where the COMELEC was then conducting its Senatariol Canvass. There being four parties, a total of seventy-two (72) escorts/watchers accompanied the ballots and counting machines.Two C130s left Sulu on May 15, 1998 to transport all the ballot boxes and counting machines, accompanied by all the authorized escorts. Said ballots boxes reached the PICC on the same day, with all escorts/watchers allowed to station themselves at the ballot box storage area. On May 17, 1998, another C130 left Sulu to ferry the members of the board of canvassers.Fifth. The evidence is clear that the integrity of the local ballots was safeguarded when they were transferred from Sulu to Manila and when they were manually counted.A shown by the Tolentino memorandum, representatives of the political parties escorted the transfer of ballots from Sulu to PICC. Indeed, in his May 14, 1992 letter to Atty. Tolentino, Jr., petitioner Tupay Loong himself submitted the names of his representative who would company the ballot boxes and other election paraphernalia,viz: 20

Dear Atty. Tolentino:Submitted herewith are the names of escort(s) to accompany the ballot boxes and other election pharaphernalia to be transported to COMELEC, Manila, to wit:1. Jolo — Joseph Lu2. Patikul — Fathie B. Loong3. Indanan — Dixon Jadi4. Siasi — Jamal Ismael5. K. Kaluang — Enjimar Abam6. Pata — Marvin Hassan7. Parang — Siyang Loong8. Pangutaran — Hji. Nasser Loong9. Marunggas — Taib Mangkabong10. Luuk — Jun Arbison11. Pandami — Orkan Osman12. Tongkil — Usman Sahidulla13. Tapul — Alphawanis Tupay

14. Lugus — Patta Alih15. Maimbong — Mike Bangahan16. P. Estino — Yasir Ibba17. Panamso — Hamba Loong18. Talipao — Ismael SaliHoping for your kind and (sic) consideration for approval on this matter.Thank you.Very truly yours,(Sgd.) Tupay T. Loong(sgd.) Asani S. TammangThe ballot boxes were consistently under the watchful eyes of the parties representatives. They were placed in an open space at the PICC. The watchers stationed themselves some five (5) meters away form the ballot boxes. They watched 24 hours a day and slept at the PICC. 21

The parties' watchers again accompanied the transfer of the ballot boxes from PICC to the public schools of Pasay City where the ballots were counted. After the counting, they once more escorted the return of the ballot boxes to PICC. 22

In fine, petitioner's charge that the ballots could have been tampered with before the manual counting is totally unfounded.Sixth. The evidence also reveals that the result of the manual count is reliable.It bears stressing that the ballots used in the case at bar were specially made to suit an automated election. The ballots were uncomplicated. They had fairly large ovals opposite the names of candidates. A voter needed only to check the oval opposite the name of his candidate. When the COMELEC ordered a manual count of the votes, it issued special rules as the counting involved a different kind of ballot, albeit, more simple ballots. The Omnibus Election Code rules on appreciation of ballots cannot apply for they only apply to elections where the names of candidates are handwritten in the ballots. The rules were spelled out in Minute Resolution 98-1798, viz: 23

In the matter of the Memorandum dated 17 May 1998 of Executive Director Resurreccion Z. Borra, reprocedure of the counting of votes for Sulu for the convening of the Board of Election Inspectors, the Municipal Board of Canvassers and the Provincial Board on May 18, 1998 at 9:00 a.m. at the Philippine International Convention Center (PICC).RESOLVED to approve the following procedure for the counting of votes for Sulu at the PICC:I. Common Provisions:1. Open the ballot box, retrieve the Minutes of Voting and the uncounted ballots or the envelope containing the counted ballots as the case may be;2. Segregate the national ballots from the local ballots;3. Count the number of pieces of both the national and local ballots and compare the same with the number of votes who actually voted as stated in the Minutes of Voting:If there is no Minutes of Voting, refer to the Voting Records at the back of the VRRs to determine the number of voters who actually voted.If there are more ballots than the number of voters who actually voted, the poll clerk shall draw out as many local and national ballots as may be equal to the excess and place them in the envelope for excess ballots.II. Counting of VotesA. National Ballots:1. If the national ballots have already been counted, return the same inside the envelope for counted ballots, reseal and place the envelope inside the ballot box;2. If the national ballots have not yet been counted, place them inside an envelope and give the envelope through a liaison officer to the machine operator concerned for counting and printing of the election returns;3. The machine operator shall affix his signature and thumbmark thereon, and return the same to the members of the BEI concerned for their signatures and thumbmarks;

4. The said returns shall then be placed in corresponding envelopes for distribution;B. Local Ballots:1. Group the local ballots in piles of fifty (50);2. The Chairman shall read the votes while the poll clerk and the third member shall simultaneously accomplish the election returns and the tally board respectively.If the voters shaded more ovals than the number of positions to be voted for, no vote shall be counted in favor of any candidate.3. After all the local ballots shall have been manually counted, the same shall be given to the machine operator concerned for counting by the scanning machine. The machine operator shall then save the results in a diskette and print out the election returns for COMELEC reference.4. The BEI shall accomplish the certification portion of the election returns and announce the results;5. Place the election returns in their respective envelopes and distribute them accordingly;6. Return all pertinent election documents and paraphernalia inside the ballot box.III. Consolidation of ResultsA. National Ballots1. The results of the counting for the national ballots for each municipality shall be consolidated by using the ERs of the automated election system;2. After the consolidation, the Machine Operator shall print the certificate of canvass by municipality and statement of votes by precinct;3. To consolidate the provincial results, the MO shall load all the diskettes used in the scanner to the ERs;4. The MO shall print the provincial certificate of canvass and the SOV by municipality;5. In case there is system failure in the counting and/or consolidation of the results, the POBC/MOBC shall revert to manual consolidation.B. Local Ballots1. The consolidation of votes shall be done manually by the Provincial/Municipal Board of Canvassers;2. The proclamation of winning candidates shall be based manual consolidation.RESOLVED, moreover that the pertinent provisions of COMELEC Resolution Nos. 2971 and 3030 shall apply.Let the Executive Director implement this resolution.As aforestated, five (5) Special Boards were initially created under Atty. Tolentino, Jr. to undertake the manual counting, 24 viz:a) Atty. Mamasapunod M. AguamMs. G1oria FernandezMs. Esperanza Nicolasb) Director Ester L. Villaflor-RoxasMs. Celia RomeroMs. Rebecca Macarayac) Atty. Zenaida S. SorianoMs. Jocelyn GuiangMa. Jocelyn Tand) Atty. Erlinda C. EchaviaMs. Teresa A. TorralbaMs. Ma. Carmen Llamase) Director Estrella P. de MesaMs. Teresita VelascoMs. Nelly JaenaLater, the COMELEC utilized the services of 600 public school teachers from Pasay City to do the manual counting. Five (5) elementary schools served as the venues of the counting, viz: 25

1. Gotamco Elementary School, Gotamco Street, Pasay City — for the municipalities of Indanan, Pangutaran, Panglima Tahil, Maimbung;

2. Zamora Elementary School, Zamora Street, Pasay City — for the municipalities of Jolo, Talipao, Panglima Estino, and Tapul;3. Epifanio Elementary School, Tramo Street, Pasay City — for the municipalities of Parang, Lugus, Panamao;4. Burgos Elementary School, Burgos Street, Pasay City — for the municipalities of Luuk and Tongkil;5. Palma Elementary School — for the municipalities of Siasi and Kalingalang Caluang.From beginning to end, the manual counting was done with the watchers of the parties concerned in attendance. Thereafter, the certificates of canvass were prepared and signed by the City/Municipal Board of Canvassers composed of the Chairman, Vice-Chairman, and Secretary. They were also signed by the parties' watchers. 26

The correctness of the manual count cannot therefore be doubted. There was no need for an expert to count the votes. The naked eye could see the checkmarks opposite the big ovals. Indeed, nobody complained that the votes could not be read and counted. The COMELEC representatives had no difficulty counting the votes. The 600 public school teachers of Pasay City had no difficulty. The watchers of the parties had no difficulty. Petitioner did not object to the rules on manual count on the ground that the ballots cannot be manually counted. Indeed, in his original Petition, petitioner did not complain that the local ballots could not be counted by a layman. Neither did the intervenor complain in his petition for intervention. The allegation that it will take a trained eye to read the ballots is more imagined than real.This is not all. As private respondent Tan alleged, the manual count could not have been manipulated in his favor because the results shows that most of his political opponents won. Thus, "the official results show that the two congressional seats in Sulu were won by Congressman Hussin Amin of the LAKAS-MNLF Wing for the 1st District and Congressman Asani Tammang of the LAKAS-Loong Wing for the 2nd District. In the provincial level, of the eight (8) seats for the Sangguniang Panlalawigan, two (2) were won by the camp of respondent Tan; three (3) by the camp of petitioner Loong; two (2) by the MNLF; and one (1) by LAMMP. In the mayoral race, seven (7) out of eighteen (18) victorious municipal mayors were identified with respondent Tan; four (4) with petitioner Loong; three (3) with the MNLF; two (2) with LAMMP and one (1) with REPORMA. 27 There is logic to private respondent Tan's contention that if the manual count was tampered, his candidates would not have miserably lost.1âwphi1.nêtSeventh. We further hold that petitioner cannot insist on automated counting under R.A. No. 8436 after the machines misread or rejected the local ballots in five (5) municipalities in Sulu. Section 9 of R.A. No. 8436 provides:Sec. 9. Systems Breakdown in the Counting Center. — In the event of a systems breakdown of all assigned machines in the counting center, the Commission shall use any available machine or any component thereof from another city/municipality upon approval of the Commission En Banc or any of its divisions.The transfer of such machines or any component thereof shall be undertaken in the presence of representatives of political parties and citizens' arm of the Commission who shall be notified by the election officer of such transfer.There is a systems breakdown in the counting center when the machine fails to read the ballots or fails to store/save results or fails to print the results after it has read the ballots; or when the computer fails to consolidate election results/reports or fails to print election results-reports after consolidation.As the facts show, it was inutile for the COMELEC to use other machines to count the local votes in Sulu. The errors in counting were due to the misprinting of ovals and the use of wrong sequence codes in the local ballots. The errors were not machine-related. Needless to state, to grant petitioner's prayer to continue the machine count of the local ballots will certainly result in an erroneous count and subvert the will of the electorate.Eighth. In enacting R.A. No. 8436, Congress obviously failed to provide a remedy where the error in counting is not machine-related for human foresight is not all-seeing. We hold, however, that the vacuum in the law cannot prevent the COMELEC from levitating above the problem. Section 2(1) of Article IX(C) of the Constitution gives the COMELEC the broad power "to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall." Undoubtedly, the text and intent of this provision is to give COMELEC all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest,

peaceful, and credible elections. Congruent to this intent, this Court has not been niggardly in defining the parameters of powers of COMELEC in the conduct of our elections. Thus, we held in Sumulong v. COMELEC: 28

Politics is a practical matter, and political questions must be dealt with realistically — not from the standpoint of pure theory. The Commission on Elections, because of its fact-finding facilities, its contacts with political strategists, and its knowledge derived from actual experience in dealing with political controversies, is in a peculiarly advantageous position to decide complex political questions . . .. There are no ready made formulas for solving public problems. Time and experience are necessary to evolve patterns that will serve the ends of good government. In the matter of the administration of laws relative to the conduct of election, . . . we must not by any excessive zeal take away from the Commission on Elections the initiative which by constitutional and legal mandates properly belongs to it.In the case at bar, the COMELEC order for a manual count was not reasonable. It was the only way to count the decisive local votes in the six (6) municipalities of Pata, Talipao, Siasi, Tudanan, Tapul and Jolo. The bottom line is that by means of the manual count, the will of the voters of Sulu was honestly determined. We cannot kick away the will of the people by giving a literal interpretation to R.A. 8436. R.A. 8436 did not prohibit manual counting when machine count does not work. Counting is part and parcel of the conduct of an election which is under the control and supervision of the COMELEC. It ought to be self-evident that the Constitution did not envision a COMELEC that cannot count the result of an election.Ninth. Our elections are not conducted under laboratory conditions. In running for public offices, candidates do not follow the rules of Emily Post. Too often, COMELEC has to make snap judgments to meet unforeseen circumstances that threaten to subvert the will of our voters. In the process, the actions of COMELEC may not be impeccable, indeed, may even be debatable. We cannot, however, engage in a swivel chair criticism of these actions often taken under very difficult circumstances. Even more, we cannot order a special election unless demanded by exceptional circumstances. Thus, the plea for this Court to call a special election for the governorship of Sulu is completely off-line. The plea can only be grounded on failure of election. Section 6 of the Omnibus Election Code tells us when there is a failure of election, viz:Sec. 6. Failure of election. — If, on account of force majeure, terrorism, fraud, or other analogous causes, the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election, not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect.To begin with, the plea for a special election must be addressed to the COMELEC and not to this Court. Section 6 of the Omnibus Election Code should be read in relation to Section 4 of R.A. No. 7166 which provides:Sec. 4. Postponement, Failure of Election and Special Elections. — The postponement, declaration of failure of elections and the calling of special elections as provided in Sections 5, 6, and 7 of the Omnibus Election Code shall be decided by the Commission en banc by a majority vote of its members. The causes for the declaration of a failure of election may occur before or after casting of votes or on the day of the election.The grounds for failure of election — force majeure, terrorism, fraud or other analogous causes — clearly involve questions of fact. It is for this reason that they can only be determined by the COMELEC en bancafter due notice and hearing to the parties. In the case at bar, petitioner never asked the COMELEC en banc to call for a special election in Sulu. Even his original petition with this Court, petitioner did not pray for a special election. His plea for a special election is a mere afterthought. Too late in the day and too unprocedural. Worse, the grounds for failure of election are inexistent. The records show that the voters of Sulu were able to cast their votes freely and fairly. Their votes were counted correctly, albeit manually. The people have spoken. Their sovereign will has to be obeyed.There is another reason why a special election cannot be ordered by this Court. To hold a special election only for the position of Governor will be discriminatory and will violate the right of private respondent to equal protection

of the law. The records show that all elected officials in Sulu have been proclaimed and are now discharging their powers and duties. Thus, two (2) congressmen, a vice-governor, eight (8) members of the Sangguniang Panlalawigan and eighteen (18) mayors, numerous vice-mayors and municipal councilors are now serving in their official capacities. These officials were proclaimed on the basis of the same manually counted votes of Sulu. If manual counting is illegal, their assumption of office cannot also be countenanced. Private respondent's election cannot be singled out as invalid for alikes cannot be treated unalikes.A final word. Our decision merely reinforces our collective efforts to endow COMELEC with enough power to hold free, honest, orderly and credible elections. A quick flashback of its history is necessary lest our efforts be lost in the labyrinth of time.The COMELEC was organized under Commonwealth Act No. 607 enacted on August 22, 1940. The power to enforce our election laws was originally vested in the President and exercised through the Department of Interior. According to Dean Sinco, 29 the view ultimately that an independent body could better protect the right of suffrage of our people. Hence, the enforcement of our election laws, while an executive power, was transferred to the COMELEC.From a statutory creation, the COMELEC was transformed to a constitutional body by virtue of the 1940 amendments to the 1935 Constitution which took effect on December 2, 1940. COMELEC was generously granted the power to "have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections . . .. 30

Then came the 1973 Constitution. It further broadened the powers of COMELEC by making it the sole judge of all election contests relating to the election, returns and qualifications of members of the national legislature and elective provincial and city officials. 31 In fine, the COMELEC was given judicial power aside from its traditional administrative and executive functions.The 1987 Constitution quickened this trend of strengthening the COMELEC. Today, COMELEC enforces and administers all laws and regulations relative to the conduct of elections, plebiscites, initiatives, referenda and recalls. Election contests involving regional, provincial and city elective officials are under its exclusive original jurisdiction. All contests involving elective municipal and barangay officials are under its appellate jurisdiction. 32

Our decisions have been in cadence with the movement towards empowering the COMELEC in order that it can more effectively perform its duty of safeguarding the sanctity of our elections. In Cauton vs. COMELEC, 33 we laid down this liberal approach, viz:xxx xxx xxxThe purpose of the Revised Election Code is to protect the integrity of elections and to suppress all evils that may violate its purity and defeat the will of the voters. The purity of the elections is one of the most fundamental requisites of popular government. The Commission on Elections, by constitutional mandate, must do everything in its power to secure a fair and honest canvass of the votes cast in the elections. In the performance of its duties, the Commission must be given a considerable latitude in adopting means and methods that will insure the accomplishment of the great objective for which it was created — to promote free, orderly, and honest elections. The choice of means taken by the Commission on Elections, unless they are clearly illegal or constitute grave abuse of discretion, should not be interfered with.In Pacis vs. COMELEC, 34 we reiterated the guiding principle that "clean elections control the appropriateness of the remedy." The dissent, for all its depth, is out of step with this movement. It condemns COMELEC for exercising its discretion to resort to manual count when this was its only viable alternative. It would set aside the results of the manual count even when the results are free from fraud and irregularity. Worse, it would set aside the judgment of the people electing the private respondent as Governor. Upholding the sovereignty of the people is what democracy is all about. When the sovereignty of the people expressed thru the ballot is at stake, it is not enough for this Court to make a statement but it should do everything have that sovereignty obeyed by all. Well done is always better than well said.IN VIEW WHEREOF, the petition of Tupay Loong and the petition in intervention of Yusop Jikiri are dismissed, there being no showing that public respondent gravely abused its discretion in issuing Minute Resolution Nos. 98-1748, 98-1750, 98-1796 and 98-1798. Our status quo order of June 23, 1998 is lifted. No costs.

SO ORDERED.Davide, Jr., C.J., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Buena and Gonzaga-Reyes, JJ., concur.Panganiban, J., Please see dissenting opinion.Pardo and Santiago, JJ., took no part. Separate Opinions PANGANIBAN, J., dissenting opinion;With due respect, I dissent. I submit that the Commission on Elections (Comelec) blatantly violated its express and specific statutory mandate to conduct automated elections in the Province of Sulu without any adequate legal or factual bases. Specifically, the Comelec gravely abused its discretion in the following acts:1. In peremptorily stopping the ongoing automated counting of ballots in the Municipality of Pata and in the entire Province of Sulu on the flimsy ground that three ballots for a mayoralty candidate in said municipality were not tallied by the counting machine assigned to said town2. In changing the venue and the mode of counting from automated to manual, due to alleged imminent danger of violence3. In violating its own Resolution ordering both an automated count and a parallel manual count, by actually holding only a manual count, without giving any reason for completely abandoning the automated system which was already 65 percent complete in the entire province4. In counting and appreciating the automated ballots with the use of the rules peculiar to manual elections, not to the automated election system; that is, the Comelec manually tallied the ballots in a way different from how the automated machines would have counted them; hence, the results as manually appreciated substantially differed from the machine-generated ones5. In issuing, without due process of law, its assailed Minute Resolutions relating to the change in the manner and venue of countingLet me explain each of these grounds.1. Stoppage of Automated CountLegally and Factually FlawedTo begin with, there is absolutely no dispute that Congress required the Comelec to conduct automated, not manual, elections in the Autonomous Region in Muslim Mindanao (ARMM), including the Province of Sulu, during the May 11, 1998 elections. Republic Act (RA) 8436 explicitly mandates the Comelec to "use an automated election system . . . for process of voting, counting of votes and canvassing/consolidation of results" 1 in the ARMM.However, contrary to its above clear mandate, the Comelec abondoned the ongoing automated counting of votes in Sulu during the last elections and substituted it mid-stream with the manual system. This reversion to the manual election system is nowhere authorized in the same or any other law. Clearly, the poll body has no legislative power to modify, much less to contravene, the law. 2 Neither can it assume powers not granted to it either by the Constitution or by Congress.On the other hand, the majority justifies this reversion to the manual method as a valid exercise of the Comelec's discretion to ensure a free, orderly, honest, and credible electoral exercise, stressing that this Court's ruling is "in cadence with the movement towards empowering the Comelec in order that it can more effectively perform its duty of safeguarding the sanctity of our elections." I respectfully say, however, that such "movement" should be canalized by the proposition that the Comelec may exercise its discretion only in accordance with law and never in violation of it.

In any event, let me delve deeper into the factual and legal antecedents which led to the stoppage of the automated count, if only to demonstrate the utter lack of prudence in the Comelec's actions.Factual Antecedents ofStoppage of CountAbout 6:00 a.m. on May 12, 1998, the day after the election, while the automated counting of the ballots was being conducted at the Sulu State College, some election inspectors as well as watchers called the attention of the Comelec Task Force head in Sulu, Atty. Jose Tolentino Jr., to allegedly patent discrepancies between the printed election returns and the actual votes cast for the mayoralty candidates in the Municipality of Pata. On the spot, Atty. Tolentino picked out three local ballots that had already been counted. He noticed that while they contained votes for a certain mayoralty candidate, such votes were not credited in the latter's favor in the precinct election return, which showed zero (0) vote for that candidate (Mr. Anton Burahan). Atty. Tolentino then took it upon himself to immediately order the suspension of the automated counting of the ballots from Pata. Tracing the error to misprinted ballots, he forthwith ordered a province-wide suspension of the automated count, on the suspicionthat the printing defect was prevalent province-wide. At that point, about 65 percent of the ballots cast in Sulu were already machine-counted. Intervenor Jikiri alleged he was at the time leading the count.I believe that Atty. Tolentino acted with grave abuse of discretion. First, he had no legal authority to order even a temporary stoppage of the counting. During the Oral Argument on September 15, 1998, he candidly admitted that he had no statutory or even regulatory basis for his action. 3 Second, the verbal manifestation of a BEI member or a watcher that a vote for a certain candidate was not reflected in the election return conferred no legal authority upon the election official to examine the ballots personally. Third, granting that Atty. Tolentino had such authority, the factual basis of his exercise of discretion was sorely insufficient. He saw only three (3) ballots out of about 200 from a single precinct in Pata, which had 27 precincts; noted that the votes for a certain mayoralty candidate, which were indicated in the three ballots, were not reflected on the election return, which instead printed zero vote for such candidate; when without much ado, ordered the stoppage of the counting of the rest of the ballots from Pata. At the time, only 13 ballot boxes had been, and 14 more remained to be, counted. Under RA 8436, it would have taken only one (1) minute for the counting machine to process 100 to 150 ballots. 4 Thus, it would not have taken very long to finish the count for the entire municipality.Atty., Tolentino did not even try to get the aggregate votes cast in the municipality for each mayoral candidate, in order to see if three or even 200 votes would spell a material difference in the result. Even under the manual election system, election cases are heard on the assumption that the protested ballots or returns would, if validated, change the election results. By analogy, the same logic should apply to automated elections. But Atty. Tolentino immediately assumed that the three ballots would be determinative of the election results in the municipality, where about 5,400 5 votes had been cast. Not even the manual election system allows a suspension of the entire counting process on the mere allegation that a few ballots or votes for one candidate in one precinct are questionable.Doctrinally, it would be imprudent, even dangerous, to discard the automated system cavalierly and thereafter resort to manual count on the flimsy basis that a few ballots were allegedly miscounted. Such holding would give losing parties and candidates a convenient device to scuttle the automated system by the simple expedient of alleging that a few ballots were improperly counted by the machine. It would give them a convenient excuse to revive and use an antiquated and fraud-ridden electoral method and thus lead to a prolonged counting and canvassing, the very evil sought to be remedied by RA 8436.Remedy in Cases of False Returnsand Questionable BallotsMoreover, since verbal complaints of incorrect tallying by the machine were not a valid reason to suspend the counting, the charges made by the candidates' watchers should have prompted Atty. Tolentino to require the complaining parties to file their protests for proper action in accordance with law and the Comelec rules. During the canvassing (which, under the automated system, is also done separately from the counting), the adversely affected parties could have objected to the inclusion of the questioned election return and followed, by analogy, the procedure for a pre-proclamation controversy laid down in Section 243 of the OEC, as amended by Section 20

of RA 7166. Had that recourse failed, the aggrieved candidate's remedy was an election protest. Suspending and finally stopping the automated count were completely uncalled for. There simply was no basis for it.Making matters worse, Atty. Tolentino directed the suspension of the automated count in all the 18 municipalities of Sulu, even the alleged errors were reportedly discovered in partial returns from only six (6) municipalities — Pata, Talipao, Siasi, Indanan, Tapul and Jolo.If only on this basis, the assailed Comelec Minute Resolutions authorizing the manual count must be set aside and declared null and void for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. 6 But there are even more odious grounds, as I will now show.2. No ImminentDanger of ViolenceThe ponencia justifies the Comelec's precipitate shift to manual counting "in view of the fast deteriorating peace and order situation caused by the delay in the counting of the votes." It pays heed to the unsubstantiated report of Atty. Tolentino, but totally ignores the PNP provincial director's Comprehensive Report on the Sulu Election 7dated May 18, 1998, which was submitted to this Court by, Private Respondent Tan. Said Report makes no mention of or reference to any incident that would substantiate Tolentino's statement. Rather, it bares the relative tranquillity of the recent, electoral process in the province, viz.1. The conduct of election in the province of Sulu, by her own standard, was generally peaceful sans some isolated cases of mortar shelling and failure of voting in some barangays of Panamao, ballot boxes damaged resulting from pump boat capsizing in Tongkil and failure of conducting elections in two precincts is Siasi, all of Sulu. Automated counting of the ballots, however, was stopped the day after the election when inconsistency in the print out of results were discovered in the counting machine assigned to Pata municipality. This prompted the COMELEC to order the counting to be done in Manila.xxx xxx xxxSIGNIFICANT INCIDENTSVoting in the areas assigned to Sulu PPO was generally peaceful and orderly except for some minor hitches. In Tongkil, three ballot boxes fell into the sea when the pump boat carrying them capsized. There was also allegation of ballot snatching thereat and this matter is being investigated by this PPO. In Indanan, there was a minor misunderstanding between the Ahajan brothers of Brgy. Panabuan but this was immediately resolved. In Jolo, particularly at the polling places at Hadji Butu School of Arts and Trade there was a short commotion among followers of candidates.In the areas covered by the 3rd MBde, violence erupted only in Talipao, and Panamao. Reportedly, there [was] gunfire heard in the outskirts of Tapul but neither opposing group reacted.xxx xxx xxx3. ASSESSMENTThe conduct of election in Sulu was generally peaceful compared with the previous elections. Political rivalry was less intense; the extent of cheating was also less; and a good number of registered voters actually voted. This phenomenon may have been brought about by the fact that since there were four sets of candidates, the partisan armed groups were thinly distributed, meaning the more number of groupings, the lesser is the threat of violence.Even assuming arguendo that imminent violence threatened the counting center, such situation would justify only the transfer of the counting venue. Even then, the concurrence of the majority of the watchers for such transfer is still required under the OEC. It does not appear on record that the consent of the watchers was ever sought, not to say given. On the contrary, Minute Resolution No. 98-1750 (dated May 13, 1998), which ordered the change of venue for the counting, was issued ex parte by the Comelec en banc, without any petition, recommendation or proper investigation for said purpose. Such arbitrary and peremptory issuance, in violation of law, again amounted to an abusive exercise of discretion.But, even granting arguendo that the transfer of the counting venue was valid, the abandonment of the automated count was definitely not a necessary legal consequence thereof. In other words, only the venue could have been changed, but not the method of counting. If the Comelec had conducted an automated count in

Manila, that may even be arguably sustained. I repeat, the alleged imminent threat of violence did not at all justify the manualization of the counting process; if at all, it only authorized a change of venue of the automated count.3. No Justification toAbandon Automated CountPlease note that the Comelec, in its Minute Resolution 98-1796 8 dated May 15, 1998, actually resolved "to conduct a parallel manual counting [i]n all 18 municipalities of Sulu . . .. 9 Originally, it would appear that the Commission intended to conduct in Manila an automated count first, and then a parallel manual count. Hence, it ordered the air-lifting to its head office of all the relevant election paraphernalia, including the automated machines.However, the Comelec did not obey its own Resolution. Worse, it did not explain why this vital provision requiring an automated count was not implemented, and why only a manual count was conducted. I could have conceded the propriety of a parallel manual count — which plainly means that both automated and manual counts were to be performed. Although not expressly sanctioned by law, such parallel manual count may arguably be regarded as falling within the residual regulatory authority of the Comelec. Unfortunately and inexplicably, however, only a manual count was done; the Resolution ordering an automated count was simply ignored without the Comelec giving any reason therefor.To repeat, there was no reason at all to completely abandon the automated count. The Comelec had a duty to comply with the mandate of Congress. Yet, for unstated and I submit, unexplainable reasons, it simply substituted the will of Congress with its own arbitrary action. Clearly, the Comelec acted without or in excess of its jurisdiction.4. Rules for Manual Elections Different fromThose for the Automated SystemI would like to emphasize that the resort to a manual appreciation of the ballots is precluded by the basic features of the automated election system, 10 which requires minimum human intervention, the use of a special quality of ballot paper, the use of security codes, the mere shading of an oval corresponding to the name of the candidate voted for, and the mechanized discrimination of genuine from spurious ballots, as well as rejection of fake or counterfeit ones. The automated system takes away the discretion of the boards of election inspectors (BEI) in appreciating ballots. 11

A simple cursory reading of the rules 12 laid down in the Omnibus Election Code (OEC) for the appreciation and counting of ballots cast in a manual election easily discloses that they are inappropriate, if not downright useless, to the proper appreciation and reading of the ballots used in the automated system, wherein the names of the candidates are printed on the ballots beforehand and are not handwritten by the voters themselves, and wherein each name has a corresponding oval which must have its own exact location on the ballot, conforming to the design that has been programmed in the counting machine. In other words, the automated election system has peculiar features designed for electronic, not manual, verification.Under the automated system, the machines are programmed to recognize or read only the presence of carbon in the ovals. To erase a vote is, in fact, not advisable (the voter may, under Comelec rules, ask for a new ballot), because some carbon content may be left in the oval that would still be recognized and tallied by the machine. Human handling of the automated ballots will also make it all too easy to nullify the voter's will. A blank ballot (in which the voter intentionally refrained from voting for any candidate) can be easily pencil-marked in favor a certain candidate. Or a vote can be facilely nullified by simply marking the oval of another candidate for the same office. The point is: human handling of automated ballots is fraught with dangers to the integrity of the votes therein; it actually makes the political exercise more vulnerable to electoral fraud.To be more concrete and specific, during the physical examination of the ballots used in several precincts in Pata and Jolo, conducted pursuant to the Court's Resolution dated February 9, 1999, as well as in the operation of the counting machines to which these ballots were fed, 13 there were significant discrepancies between the results of the manual count, as reflected in the official election returns, and those of the machine count. 14 Such were brought about by the following:

1. Ovals that were ink-shaded were validated by the BEIs pursuant to the OEC 15 and the Comelec rules. 16On the other hand, these were ignored by the machines, which could detect only ovals with sufficient carbon content.2. Some ovals that were only partly shaded were not read by the machines, but were counted by the BEI, pursuant to said Comelec rules.3. In some ballots, several ovals for candidates for one office were shaded but, except for one, also crossed out or marked with an "X." The counting machine invalidated these votes, because it could not recognize the difference between an "X" mark and any other mark on the oval. All it could "read" was the carbon content, and due to the presence of carbon on more than one oval for a single office, the machine concluded that there was an "over-vote." Under the automated program, an "over-vote" is considered "no vote." However, the BEIs counted the remaining uncrossed vote, considering it the voter's true and valid vote, pursuant to the OEC rules.17

4. Ballots on which the voter manually wrote the candidates' names were considered marked ballots by some BEIs, pursuant to the OEC. But the machines counted the votes therein and ignored such writings, as long as they were not found inside the ovals.I could cite several other examples of why the manual count was not reflective of the machine count. Inspite of theponencia's plain admission that the OEC Rules on the appreciation of ballots "only apply to elections where the names of the candidates are handwritten in the ballots," the stark fact is that such Rules were actually (and erroneously) used here.Indeed, he use of inappropriate Rules by the BEIs necessarily begot a misappreciation of the ballots. Such misappreciation, in turn, led to a substantial difference in the election results, as yielded by the manual and the automated counts. In sum, the manual count was not reflective of the automated count.This Court's RulingSets Back Election ModernizationIt must be borne in mind that, verily, the consistency and the accuracy of the machine count were the underlying factors in adopting the automated system of election. Precisely, human error, inconsistency and fraud were intended to be eliminated in the automated system. In fact, the BEIs had no role in the counting and canvassing. Thus, the resort to a manual count under the facts of this case was antithetical to the rationale and intent behind RA 8436. The very purpose of the law was defeated by the cumbersome, inaccurate and error-prone manual system of counting automated votes.Indeed, to uphold the results of the manual count would set a dangerous precedent. It would be tantamount to validating the arbitrary and illegal acts of the Comelec. It would provide the candidates a degenerated means to delay the proclamation of winners. It would effectively nullify the purpose of delivering speedy and accurate election results and thus defeat the election modernization ordained by Congress. Definitely, it would critically set back efforts at eliminating electoral fraud. To paraphrase then Vice President, now President, Joseph E. Estrada, the automated election system, which was prescribed as the "cure for electoral fraud," may, in the imprudent hands of an indiscreet poll body, be truly "worse than the disease."5. Lack of Due Process in Issuanceof Assailed Comelec ResolutionsThe ponencia, citing the Tolentino Memorandum, states that Petitioner Loong and Intervenor Jikiri "were given every opportunity to oppose the manual count of the local ballots in Sulu." Hence, contrary to their allegations, they were not denied due process.Again, I beg to disagree. Some factual antecedents have to be brought up to set the record straight.The meeting among the candidates and other parties concerned, which Atty. Tolentino convened in the early afternoon of May 12, 1998, was already post facto. The talking points in that meeting related to the alleged incorrect reading of ballots for Pata, Sulu. They did not discuss the issue of whether to stop the tallying because much earlier in the morning of that same day, Atty. Tolentino had already suspended the counting in that municipality and, shortly thereafter, in the entire province. Furthermore, the group that convened did not yet take up the alleged rejection by the machines of ballots in other municipalities, since the reports thereon came only after the said meeting. And such stoppage, as I discussed earlier, was based merely on the verbal complaints of some watchers and members of the BEI and Atty. Tolentino's personal, albeit unauthorized, examination of three

ballots from one precinct, which showed that votes for a certain mayoralty candidate were not reflected in the election return.Immediately after that meeting adjourned, Private Respondent Abdusakur Tan sent his petition 18 directly to the Comelec, requesting the immediate suspension of the automated count and the holding of a manual count in the entire Province of Sulu. In response, the Comelec en banc forthwith issued on the very same day — May 12, 1998 — assailed Minute Resolution 98-1747, 19 granting the petition insofar as the votes in the Municipality of Pata were concerned.The assailed Resolution was issued even before the report-recommendation of Atty. Tolentino was submitted to the Comelec en banc, close to midnight of that day. 20 While the effectivity of Minute Resolution 98-1747 was expressly "subject to notice to all parties concerned," its very issuance by the Comelec en banc was obviously (1) without notice to the other candidates, (2) without any hearing at all, and (3) without an independent investigation by the Comelec. It relied totally on the contents of the petition itself.Clearly, while the parties may have been heard by Atty. Tolentino, their inputs were definitely not communicated to nor required by the Commission en banc prior to its issuance of Minute Resolution 98-1747. Besides, the Tolentino meeting took up the problems in the Municipality of Pata only, for the alleged problems in the five other municipalities of Sulu were discovered after that meeting was adjourned already. Such meeting, therefore, did not serve as a sufficient basis for the Comelec to abandon the automated count in the entire province; to transfer the counting venue from Sulu to Manila; and to totally shift to the manual count. In making these decisions and issuing the resolutions therefor, the Comelec clearly did not accord the parties due process. It did not give them any opportunity to be heard prior the promulgation of its rulings. The Comelec simply acted on its own.EpilogueSpecial Election asthe Equitable RemedyThe assailed Comelec Resolutions have heretofore been shown to be tainted with grave abuse of discretion; hence, the manual count has no legal leg to stand on. Consequently, its results cannot be upheld. That which proceeds from a void order is likewise void. The invalidity of the manual count resulted in no count at all. Equally important, the manual count was not reflective of the results of an automated count because the ballots were not appreciated in the manner the scanning machine would have counted them.During the Oral Argument, the parties, as well as the solicitor general, agreed that an automated count was no longer possible because, after the ballots had been manually handled (and blemished or rumpled in the process), the scanning machines could not accurately read all of them anymore. 21 While the great majority of the ballots could still be counted by the machines, there were those that could no longer be electronically processed — ballots that were torn, dirty or sticky; and the damp ones that the machine found difficult to disengage.The ultimate effect of the invalidity of the manual count and the futility of an automated count at this time is the annulment or junking of the votes of the people of Sulu in the last elections. The will of the electorate, expressed through the ballots, has been frustrated or virtually canceled by the unauthorized acts of the Comelec. There is then no basis for the proclamation of Private Respondent Tan as the duly elected governor of Sulu.It must be pointed out, however, that the nullity of Tan's proclamation is not equivalent to a judicial disenfranchisement of the Sulu electorate. Indeed, there is no evidence showing that the voting process itself was tainted with undue irregularity. It was the counting process, rather, that was shrouded with uncertainty. The manual count, I repeat, was not the prescribed or even the appropriate method of validating the ballots intended to be electronically verified.Time and again, the Court has held that the sovereign will must prevail over legal technicalities. 22 But when the popular will itself is placed in serious doubt due to the irregularity of the very method used in determining it, we must allow the people involved another chance to express their true choice. We simply cannot impose upon the people of Sulu one who was not their clear choice, or whose election was, at the very least, placed in serious doubt by the spuriousness of the method used in counting the votes.

The consequent loss of a legal and appropriate means to ascertain the genuine will of the voters during the last election in Sulu necessitates the holding of a special election. I believe that this is the only equitable remedy left under the circumstances, if we are to give true justice to the people of Sulu and let their sovereign will prevail. 23Such special election will, however, concern only the position of governor of the Province of Sulu. Only this position was contested in the instant petition; only the candidates therefor have timely sought relief from this Court to assail the manual count and the subject Minute Resolutions of the Comelec. The same relief cannot be granted to the candidates for the other positions who, insofar as they are concerned, are deemed to have accepted the results of the manual count as truly reflective of the will of the people of Sulu. Their failure to object in due time to the process, as well as the results, manifests their conformity and acceptance. They are now estopped from questioning the validity of the assumption into office of the duly proclaimed winners of the other positions in the province, whose rights cannot be adversely affected in these proceedings without them being haled to and accorded their day in court. 24 Even this Court has admitted the wisdom of this caveat as it denied the late intervention of Vice Gubernatorial Candidate Abdulwahid Sahidulla.The Need for Legislative ActionThe foregoing disquisition shows that RA 8436 had not foreseen flaws in the automated system that were unrelated to the counting machines or components thereof; thus, the lacuna of the proper recourse in such event. No remedies were expressly prescribed (1) for candidates who believe there was a wrong count or canvass by the machine, or more relevantly, (2) on whether Comelec may resort to a manual count of automated ballots, and if so, under what circumstances. 25

Well-settled is the rule, that courts have no jurisdiction to make legislative pronouncements. 26 They have no power to fill a vacuum in the law. Thus, the Court, I submit, should not give its imprimatur to the Comelec's resort to the manual method of determining election results, where Congress has categorically prescribed the automated system. Only Congress, the legislative arm of the government, can prescribe a precise remedy that will address the flaws identified in this case. For the courts or the Comelec to do so (like a resort to manual count) would be tantamount to judicial or administrative legislation, a course diametrical to the constitutional principle of separation of powers.WHEREFORE, I vote that the petition be GRANTED. Assailed Comelec Resolution Nos. 98-1747, 98-1750, 98-1796 and 98-1798 should be declared NULL and VOID. The manually determined election results for the position of governor of Sulu and the proclamation of Respondent Abdusakur Tan as the elected governor of said province must thus be SET ASIDE and the Comelec ORDERED to call a special election for such position as soon as practicable.Separate OpinionsPANGANIBAN, J., dissenting opinion;With due respect, I dissent. I submit that the Commission on Elections (Comelec) blatantly violated its express and specific statutory mandate to conduct automated elections in the Province of Sulu without any adequate legal or factual bases. Specifically, the Comelec gravely abused its discretion in the following acts:1. In peremptorily stopping the ongoing automated counting of ballots in the Municipality of Pata and in the entire Province of Sulu on the flimsy ground that three ballots for a mayoralty candidate in said municipality were not tallied by the counting machine assigned to said town2. In changing the venue and the mode of counting from automated to manual, due to alleged imminent danger of violence3. In violating its own Resolution ordering both an automated count and a parallel manual count, by actually holding only a manual count, without giving any reason for completely abandoning the automated system which was already 65 percent complete in the entire province4. In counting and appreciating the automated ballots with the use of the rules peculiar to manual elections, not to the automated election system; that is, the Comelec manually tallied the ballots in a way different from how the automated machines would have counted them; hence, the results as manually appreciated substantially differed from the machine-generated ones

5. In issuing, without due process of law, its assailed Minute Resolutions relating to the change in the manner and venue of countingLet me explain each of these grounds.1. Stoppage of Automated CountLegally and Factually FlawedTo begin with, there is absolutely no dispute that Congress required the Comelec to conduct automated, not manual, elections in the Autonomous Region in Muslim Mindanao (ARMM), including the Province of Sulu, during the May 11, 1998 elections. Republic Act (RA) 8436 explicitly mandates the Comelec to "use an automated election system . . . for process of voting, counting of votes and canvassing/consolidation of results" 1 in the ARMM.However, contrary to its above clear mandate, the Comelec abondoned the ongoing automated counting of votes in Sulu during the last elections and substituted it mid-stream with the manual system. This reversion to the manual election system is nowhere authorized in the same or any other law. Clearly, the poll body has no legislative power to modify, much less to contravene, the law. 2 Neither can it assume powers not granted to it either by the Constitution or by Congress.On the other hand, the majority justifies this reversion to the manual method as a valid exercise of the Comelec's discretion to ensure a free, orderly, honest, and credible electoral exercise, stressing that this Court's ruling is "in cadence with the movement towards empowering the Comelec in order that it can more effectively perform its duty of safeguarding the sanctity of our elections." I respectfully say, however, that such "movement" should be canalized by the proposition that the Comelec may exercise its discretion only in accordance with law and never in violation of it.In any event, let me delve deeper into the factual and legal antecedents which led to the stoppage of the automated count, if only to demonstrate the utter lack of prudence in the Comelec's actions.Factual Antecedents ofStoppage of CountAbout 6:00 a.m. on May 12, 1998, the day after the election, while the automated counting of the ballots was being conducted at the Sulu State College, some election inspectors as well as watchers called the attention of the Comelec Task Force head in Sulu, Atty. Jose Tolentino Jr., to allegedly patent discrepancies between the printed election returns and the actual votes cast for the mayoralty candidates in the Municipality of Pata. On the spot, Atty. Tolentino picked out three local ballots that had already been counted. He noticed that while they contained votes for a certain mayoralty candidate, such votes were not credited in the latter's favor in the precinct election return, which showed zero (0) vote for that candidate (Mr. Anton Burahan). Atty. Tolentino then took it upon himself to immediately order the suspension of the automated counting of the ballots from Pata. Tracing the error to misprinted ballots, he forthwith ordered a province-wide suspension of the automated count, on the suspicionthat the printing defect was prevalent province-wide. At that point, about 65 percent of the ballots cast in Sulu were already machine-counted. Intervenor Jikiri alleged he was at the time leading the count.I believe that Atty. Tolentino acted with grave abuse of discretion. First, he had no legal authority to order even a temporary stoppage of the counting. During the Oral Argument on September 15, 1998, he candidly admitted that he had no statutory or even regulatory basis for his action. 3 Second, the verbal manifestation of a BEI member or a watcher that a vote for a certain candidate was not reflected in the election return conferred no legal authority upon the election official to examine the ballots personally. Third, granting that Atty. Tolentino had such authority, the factual basis of his exercise of discretion was sorely insufficient. He saw only three (3) ballots out of about 200 from a single precinct in Pata, which had 27 precincts; noted that the votes for a certain mayoralty candidate, which were indicated in the three ballots, were not reflected on the election return, which instead printed zero vote for such candidate; when without much ado, ordered the stoppage of the counting of the rest of the ballots from Pata. At the time, only 13 ballot boxes had been, and 14 more remained to be, counted. Under RA 8436, it would have taken only one (1) minute for the counting machine to process 100 to 150 ballots. 4 Thus, it would not have taken very long to finish the count for the entire municipality.

Atty., Tolentino did not even try to get the aggregate votes cast in the municipality for each mayoral candidate, in order to see if three or even 200 votes would spell a material difference in the result. Even under the manual election system, election cases are heard on the assumption that the protested ballots or returns would, if validated, change the election results. By analogy, the same logic should apply to automated elections. But Atty. Tolentino immediately assumed that the three ballots would be determinative of the election results in the municipality, where about 5,400 5 votes had been cast. Not even the manual election system allows a suspension of the entire counting process on the mere allegation that a few ballots or votes for one candidate in one precinct are questionable.Doctrinally, it would be imprudent, even dangerous, to discard the automated system cavalierly and thereafter resort to manual count on the flimsy basis that a few ballots were allegedly miscounted. Such holding would give losing parties and candidates a convenient device to scuttle the automated system by the simple expedient of alleging that a few ballots were improperly counted by the machine. It would give them a convenient excuse to revive and use an antiquated and fraud-ridden electoral method and thus lead to a prolonged counting and canvassing, the very evil sought to be remedied by RA 8436.Remedy in Cases of False Returnsand Questionable BallotsMoreover, since verbal complaints of incorrect tallying by the machine were not a valid reason to suspend the counting, the charges made by the candidates' watchers should have prompted Atty. Tolentino to require the complaining parties to file their protests for proper action in accordance with law and the Comelec rules. During the canvassing (which, under the automated system, is also done separately from the counting), the adversely affected parties could have objected to the inclusion of the questioned election return and followed, by analogy, the procedure for a pre-proclamation controversy laid down in Section 243 of the OEC, as amended by Section 20 of RA 7166. Had that recourse failed, the aggrieved candidate's remedy was an election protest. Suspending and finally stopping the automated count were completely uncalled for. There simply was no basis for it.Making matters worse, Atty. Tolentino directed the suspension of the automated count in all the 18 municipalities of Sulu, even the alleged errors were reportedly discovered in partial returns from only six (6) municipalities — Pata, Talipao, Siasi, Indanan, Tapul and Jolo.If only on this basis, the assailed Comelec Minute Resolutions authorizing the manual count must be set aside and declared null and void for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. 6 But there are even more odious grounds, as I will now show.2. No ImminentDanger of ViolenceThe ponencia justifies the Comelec's precipitate shift to manual counting "in view of the fast deteriorating peace and order situation caused by the delay in the counting of the votes." It pays heed to the unsubstantiated report of Atty. Tolentino, but totally ignores the PNP provincial director's Comprehensive Report on the Sulu Election 7dated May 18, 1998, which was submitted to this Court by, Private Respondent Tan. Said Report makes no mention of or reference to any incident that would substantiate Tolentino's statement. Rather, it bares the relative tranquillity of the recent, electoral process in the province, viz.1. The conduct of election in the province of Sulu, by her own standard, was generally peaceful sans some isolated cases of mortar shelling and failure of voting in some barangays of Panamao, ballot boxes damaged resulting from pump boat capsizing in Tongkil and failure of conducting elections in two precincts is Siasi, all of Sulu. Automated counting of the ballots, however, was stopped the day after the election when inconsistency in the print out of results were discovered in the counting machine assigned to Pata municipality. This prompted the COMELEC to order the counting to be done in Manila.xxx xxx xxxSIGNIFICANT INCIDENTSVoting in the areas assigned to Sulu PPO was generally peaceful and orderly except for some minor hitches. In Tongkil, three ballot boxes fell into the sea when the pump boat carrying them capsized. There was also allegation of ballot snatching thereat and this matter is being investigated by this PPO. In Indanan, there was a minor

misunderstanding between the Ahajan brothers of Brgy. Panabuan but this was immediately resolved. In Jolo, particularly at the polling places at Hadji Butu School of Arts and Trade there was a short commotion among followers of candidates.In the areas covered by the 3rd MBde, violence erupted only in Talipao, and Panamao. Reportedly, there [was] gunfire heard in the outskirts of Tapul but neither opposing group reacted.xxx xxx xxx3. ASSESSMENTThe conduct of election in Sulu was generally peaceful compared with the previous elections. Political rivalry was less intense; the extent of cheating was also less; and a good number of registered voters actually voted. This phenomenon may have been brought about by the fact that since there were four sets of candidates, the partisan armed groups were thinly distributed, meaning the more number of groupings, the lesser is the threat of violence.Even assuming arguendo that imminent violence threatened the counting center, such situation would justify only the transfer of the counting venue. Even then, the concurrence of the majority of the watchers for such transfer is still required under the OEC. It does not appear on record that the consent of the watchers was ever sought, not to say given. On the contrary, Minute Resolution No. 98-1750 (dated May 13, 1998), which ordered the change of venue for the counting, was issued ex parte by the Comelec en banc, without any petition, recommendation or proper investigation for said purpose. Such arbitrary and peremptory issuance, in violation of law, again amounted to an abusive exercise of discretion.But, even granting arguendo that the transfer of the counting venue was valid, the abandonment of the automated count was definitely not a necessary legal consequence thereof. In other words, only the venue could have been changed, but not the method of counting. If the Comelec had conducted an automated count in Manila, that may even be arguably sustained. I repeat, the alleged imminent threat of violence did not at all justify the manualization of the counting process; if at all, it only authorized a change of venue of the automated count.3. No Justification toAbandon Automated CountPlease note that the Comelec, in its Minute Resolution 98-1796 8 dated May 15, 1998, actually resolved "to conduct a parallel manual counting [i]n all 18 municipalities of Sulu . . .. 9 Originally, it would appear that the Commission intended to conduct in Manila an automated count first, and then a parallel manual count. Hence, it ordered the air-lifting to its head office of all the relevant election paraphernalia, including the automated machines.However, the Comelec did not obey its own Resolution. Worse, it did not explain why this vital provision requiring an automated count was not implemented, and why only a manual count was conducted. I could have conceded the propriety of a parallel manual count — which plainly means that both automated and manual counts were to be performed. Although not expressly sanctioned by law, such parallel manual count may arguably be regarded as falling within the residual regulatory authority of the Comelec. Unfortunately and inexplicably, however, only a manual count was done; the Resolution ordering an automated count was simply ignored without the Comelec giving any reason therefor.To repeat, there was no reason at all to completely abandon the automated count. The Comelec had a duty to comply with the mandate of Congress. Yet, for unstated and I submit, unexplainable reasons, it simply substituted the will of Congress with its own arbitrary action. Clearly, the Comelec acted without or in excess of its jurisdiction.4. Rules for Manual Elections Different fromThose for the Automated SystemI would like to emphasize that the resort to a manual appreciation of the ballots is precluded by the basic features of the automated election system, 10 which requires minimum human intervention, the use of a special quality of ballot paper, the use of security codes, the mere shading of an oval corresponding to the name of the candidate voted for, and the mechanized discrimination of genuine from spurious ballots, as well as rejection of fake or counterfeit ones. The automated system takes away the discretion of the boards of election inspectors (BEI) in appreciating ballots. 11

A simple cursory reading of the rules 12 laid down in the Omnibus Election Code (OEC) for the appreciation and counting of ballots cast in a manual election easily discloses that they are inappropriate, if not downright useless, to the proper appreciation and reading of the ballots used in the automated system, wherein the names of the candidates are printed on the ballots beforehand and are not handwritten by the voters themselves, and wherein each name has a corresponding oval which must have its own exact location on the ballot, conforming to the design that has been programmed in the counting machine. In other words, the automated election system has peculiar features designed for electronic, not manual, verification.Under the automated system, the machines are programmed to recognize or read only the presence of carbon in the ovals. To erase a vote is, in fact, not advisable (the voter may, under Comelec rules, ask for a new ballot), because some carbon content may be left in the oval that would still be recognized and tallied by the machine. Human handling of the automated ballots will also make it all too easy to nullify the voter's will. A blank ballot (in which the voter intentionally refrained from voting for any candidate) can be easily pencil-marked in favor a certain candidate. Or a vote can be facilely nullified by simply marking the oval of another candidate for the same office. The point is: human handling of automated ballots is fraught with dangers to the integrity of the votes therein; it actually makes the political exercise more vulnerable to electoral fraud.To be more concrete and specific, during the physical examination of the ballots used in several precincts in Pata and Jolo, conducted pursuant to the Court's Resolution dated February 9, 1999, as well as in the operation of the counting machines to which these ballots were fed, 13 there were significant discrepancies between the results of the manual count, as reflected in the official election returns, and those of the machine count. 14 Such were brought about by the following:1. Ovals that were ink-shaded were validated by the BEIs pursuant to the OEC 15 and the Comelec rules. 16On the other hand, these were ignored by the machines, which could detect only ovals with sufficient carbon content.2. Some ovals that were only partly shaded were not read by the machines, but were counted by the BEI, pursuant to said Comelec rules.3. In some ballots, several ovals for candidates for one office were shaded but, except for one, also crossed out or marked with an "X." The counting machine invalidated these votes, because it could not recognize the difference between an "X" mark and any other mark on the oval. All it could "read" was the carbon content, and due to the presence of carbon on more than one oval for a single office, the machine concluded that there was an "over-vote." Under the automated program, an "over-vote" is considered "no vote." However, the BEIs counted the remaining uncrossed vote, considering it the voter's true and valid vote, pursuant to the OEC rules.17

4. Ballots on which the voter manually wrote the candidates' names were considered marked ballots by some BEIs, pursuant to the OEC. But the machines counted the votes therein and ignored such writings, as long as they were not found inside the ovals.I could cite several other examples of why the manual count was not reflective of the machine count. Inspite of theponencia's plain admission that the OEC Rules on the appreciation of ballots "only apply to elections where the names of the candidates are handwritten in the ballots," the stark fact is that such Rules were actually (and erroneously) used here.Indeed, he use of inappropriate Rules by the BEIs necessarily begot a misappreciation of the ballots. Such misappreciation, in turn, led to a substantial difference in the election results, as yielded by the manual and the automated counts. In sum, the manual count was not reflective of the automated count.This Court's RulingSets Back Election ModernizationIt must be borne in mind that, verily, the consistency and the accuracy of the machine count were the underlying factors in adopting the automated system of election. Precisely, human error, inconsistency and fraud were intended to be eliminated in the automated system. In fact, the BEIs had no role in the counting and canvassing. Thus, the resort to a manual count under the facts of this case was antithetical to the rationale and intent behind RA 8436. The very purpose of the law was defeated by the cumbersome, inaccurate and error-prone manual system of counting automated votes.

Indeed, to uphold the results of the manual count would set a dangerous precedent. It would be tantamount to validating the arbitrary and illegal acts of the Comelec. It would provide the candidates a degenerated means to delay the proclamation of winners. It would effectively nullify the purpose of delivering speedy and accurate election results and thus defeat the election modernization ordained by Congress. Definitely, it would critically set back efforts at eliminating electoral fraud. To paraphrase then Vice President, now President, Joseph E. Estrada, the automated election system, which was prescribed as the "cure for electoral fraud," may, in the imprudent hands of an indiscreet poll body, be truly "worse than the disease."5. Lack of Due Process in Issuanceof Assailed Comelec ResolutionsThe ponencia, citing the Tolentino Memorandum, states that Petitioner Loong and Intervenor Jikiri "were given every opportunity to oppose the manual count of the local ballots in Sulu." Hence, contrary to their allegations, they were not denied due process.Again, I beg to disagree. Some factual antecedents have to be brought up to set the record straight.The meeting among the candidates and other parties concerned, which Atty. Tolentino convened in the early afternoon of May 12, 1998, was already post facto. The talking points in that meeting related to the alleged incorrect reading of ballots for Pata, Sulu. They did not discuss the issue of whether to stop the tallying because much earlier in the morning of that same day, Atty. Tolentino had already suspended the counting in that municipality and, shortly thereafter, in the entire province. Furthermore, the group that convened did not yet take up the alleged rejection by the machines of ballots in other municipalities, since the reports thereon came only after the said meeting. And such stoppage, as I discussed earlier, was based merely on the verbal complaints of some watchers and members of the BEI and Atty. Tolentino's personal, albeit unauthorized, examination of three ballots from one precinct, which showed that votes for a certain mayoralty candidate were not reflected in the election return.Immediately after that meeting adjourned, Private Respondent Abdusakur Tan sent his petition 18 directly to the Comelec, requesting the immediate suspension of the automated count and the holding of a manual count in the entire Province of Sulu. In response, the Comelec en banc forthwith issued on the very same day — May 12, 1998 — assailed Minute Resolution 98-1747, 19 granting the petition insofar as the votes in the Municipality of Pata were concerned.The assailed Resolution was issued even before the report-recommendation of Atty. Tolentino was submitted to the Comelec en banc, close to midnight of that day. 20 While the effectivity of Minute Resolution 98-1747 was expressly "subject to notice to all parties concerned," its very issuance by the Comelec en banc was obviously (1) without notice to the other candidates, (2) without any hearing at all, and (3) without an independent investigation by the Comelec. It relied totally on the contents of the petition itself.Clearly, while the parties may have been heard by Atty. Tolentino, their inputs were definitely not communicated to nor required by the Commission en banc prior to its issuance of Minute Resolution 98-1747. Besides, the Tolentino meeting took up the problems in the Municipality of Pata only, for the alleged problems in the five other municipalities of Sulu were discovered after that meeting was adjourned already. Such meeting, therefore, did not serve as a sufficient basis for the Comelec to abandon the automated count in the entire province; to transfer the counting venue from Sulu to Manila; and to totally shift to the manual count. In making these decisions and issuing the resolutions therefor, the Comelec clearly did not accord the parties due process. It did not give them any opportunity to be heard prior the promulgation of its rulings. The Comelec simply acted on its own.EpilogueSpecial Election asthe Equitable RemedyThe assailed Comelec Resolutions have heretofore been shown to be tainted with grave abuse of discretion; hence, the manual count has no legal leg to stand on. Consequently, its results cannot be upheld. That which proceeds from a void order is likewise void. The invalidity of the manual count resulted in no count at all. Equally

important, the manual count was not reflective of the results of an automated count because the ballots were not appreciated in the manner the scanning machine would have counted them.During the Oral Argument, the parties, as well as the solicitor general, agreed that an automated count was no longer possible because, after the ballots had been manually handled (and blemished or rumpled in the process), the scanning machines could not accurately read all of them anymore. 21 While the great majority of the ballots could still be counted by the machines, there were those that could no longer be electronically processed — ballots that were torn, dirty or sticky; and the damp ones that the machine found difficult to disengage.The ultimate effect of the invalidity of the manual count and the futility of an automated count at this time is the annulment or junking of the votes of the people of Sulu in the last elections. The will of the electorate, expressed through the ballots, has been frustrated or virtually canceled by the unauthorized acts of the Comelec. There is then no basis for the proclamation of Private Respondent Tan as the duly elected governor of Sulu.It must be pointed out, however, that the nullity of Tan's proclamation is not equivalent to a judicial disenfranchisement of the Sulu electorate. Indeed, there is no evidence showing that the voting process itself was tainted with undue irregularity. It was the counting process, rather, that was shrouded with uncertainty. The manual count, I repeat, was not the prescribed or even the appropriate method of validating the ballots intended to be electronically verified.Time and again, the Court has held that the sovereign will must prevail over legal technicalities. 22 But when the popular will itself is placed in serious doubt due to the irregularity of the very method used in determining it, we must allow the people involved another chance to express their true choice. We simply cannot impose upon the people of Sulu one who was not their clear choice, or whose election was, at the very least, placed in serious doubt by the spuriousness of the method used in counting the votes.The consequent loss of a legal and appropriate means to ascertain the genuine will of the voters during the last election in Sulu necessitates the holding of a special election. I believe that this is the only equitable remedy left under the circumstances, if we are to give true justice to the people of Sulu and let their sovereign will prevail. 23Such special election will, however, concern only the position of governor of the Province of Sulu. Only this position was contested in the instant petition; only the candidates therefor have timely sought relief from this Court to assail the manual count and the subject Minute Resolutions of the Comelec. The same relief cannot be granted to the candidates for the other positions who, insofar as they are concerned, are deemed to have accepted the results of the manual count as truly reflective of the will of the people of Sulu. Their failure to object in due time to the process, as well as the results, manifests their conformity and acceptance. They are now estopped from questioning the validity of the assumption into office of the duly proclaimed winners of the other positions in the province, whose rights cannot be adversely affected in these proceedings without them being haled to and accorded their day in court. 24 Even this Court has admitted the wisdom of this caveat as it denied the late intervention of Vice Gubernatorial Candidate Abdulwahid Sahidulla.The Need for Legislative ActionThe foregoing disquisition shows that RA 8436 had not foreseen flaws in the automated system that were unrelated to the counting machines or components thereof; thus, the lacuna of the proper recourse in such event. No remedies were expressly prescribed (1) for candidates who believe there was a wrong count or canvass by the machine, or more relevantly, (2) on whether Comelec may resort to a manual count of automated ballots, and if so, under what circumstances. 25

Well-settled is the rule, that courts have no jurisdiction to make legislative pronouncements. 26 They have no power to fill a vacuum in the law. Thus, the Court, I submit, should not give its imprimatur to the Comelec's resort to the manual method of determining election results, where Congress has categorically prescribed the automated system. Only Congress, the legislative arm of the government, can prescribe a precise remedy that will address the flaws identified in this case. For the courts or the Comelec to do so (like a resort to manual count) would be tantamount to judicial or administrative legislation, a course diametrical to the constitutional principle of separation of powers.WHEREFORE, I vote that the petition be GRANTED. Assailed Comelec Resolution Nos. 98-1747, 98-1750, 98-1796 and 98-1798 should be declared NULL and VOID. The manually determined election results for the position of

governor of Sulu and the proclamation of Respondent Abdusakur Tan as the elected governor of said province must thus be SET ASIDE and the Comelec ORDERED to call a special election for such position as soon as practicable.

G.R. No. 84462-63 March 29, 1989GABRIEL CASIMIRO and UNIDO PARTY, petitioners, vs.HON. COMMISSION ON ELECTIONS, LAS PINAS BOARD OF CANVASSERS, RASALINO RIGUERA, ALFREDO JUNTILLA, REMIGIO RAMOS, EDUARDO CASTILLO and REYNALDO SALVADOR, respondents.G.R. No. 84678-79 March 29, 1989RUSTICO ANTONIO, JAIME BULALACAO, ERNESTO CAAMPUED, RODOLFO FRANCISCO, LORETA MIRANDA, JUANITO MOJE, ERLINDA PERICO, PEDRO SALVADOR, MIGUEL SORIANO, JR. and ROMAN VILLAME, petitioners, vs.COMMISSION ON ELECTIONS, LAS PINAS BOARD OF CANVASSERS, JAIME MARTIN, MAXIMO SANTOS, LUIS BUSTAMANTE, EDUARDO JIMENEZ, LORETO VILLANUEVA, BENJAMIN GONZALES, JAIME AGUILAR, ERNESTO LUCENA and RENATO MIRANDA, respondents.Jose G. de Leon, Jr. for petitioners in G.R. Nos. 84462-63.Miguel P. Soriano, Jr. for petitioners in G.R. Nos. 8467879.Edilberto Bacle for respondent A. Juntilla.Byron S. Anastacio for respondent R. Riguera. MELENCIO-HERRERA, J.:In the local elections of 18 January 1988 Gabriel P. Casimiro was the UNIDO candidate for Mayor of the Municipality of Las Pinas, Metro Manila. Alfredo Juntilla and Rosalino Riguera were also candidates for the same position of Mayor, with Riguera having been ultimately proclaimed Mayor.Remigio Ramos and Eduardo Castillo were both candidates for Vice-Mayor; while Reynaldo Salvador was a candidate for Councilor, all in the same municipality.During the canvassing of votes, the following cases, pertinent to these petitions, were filed before public respondent Commission on Elections (COMELEC):SPC No. 88-210-Juntilla, et al., vs. Rosalino Riguera, et al.SPC No. 88-218-In Re: Petition to Suspend Canvass of Election Return transfer the Venue for the Canvass of Election Returns to the COMELEC Main Office in Intramuros, Manila and/or Suspend the proclamation of any winning candidate for Mayor, Vice-Mayor and Councilors in the Municipality of Las Pinas, or to Declare the Nullity of Proclamation, if any.Gabriel P. Casimiro, Petitioner.SPC No.88-360-InRe:Petition to Enjoin Board of Canvassers from Canvassing of Votes of Las Pinas and/or Tabulating Unofficial Election Returns,UNIDO Party, Petitioner.SPC No. 88-619 In the Matter of the Pre-Proclamation Controversy in Las Pinas, M.M.Reynaldo Salvador, Petitioner, vs. Las Pinas M.M. Board of Canvassers, et al., Respondents.Resolving the aforesaid cases, the COMELEC (Second Division) rendered a consolidated Decision on 25 March 1988, decreeing in part:22. Both the law and jurisprudence on this matter clearly dictate the dismissal of this petition. This is beyond the jurisdiction of this electoral body. The issues should be properly ventilated in an election protest filed with a court of general jurisdiction.WHEREFORE, IN VIEW OF ALL THE FOREGOING, Special Proceeding Cases Nos. 88-210, 88-218, 88-360 and 88-619 are hereby dismissed. The order (in Minute Resolution No. 88-251 dated 27 January 1988) restraining the proclamation of any winning candidate is hereby lifted. The Municipal Board of Canvassers of Las Pinas, Metro

Manila, is hereby ordered to reconvene, complete the canvass if not yet completed, and proclaim the winning candidates, if warranted.SO ORDERED. (p. 113, Rollo)With the lifting of the Restraining Order, respondent Rosalino Riguera and the other winning candidates for local officials were proclaimed.On 8 June 1988 the COMELEC en banc denied a Motion for Reconsideration of the aforesaid Decision, as follows:WHEREFORE, premises considered, the instant Motion for reconsideration filed on March 30, 1988 by movants Gabriel P. Casimiro and UNIDO party, is hereby DENIED. Accordingly, the Decision of the Second Division dated March 25, 1988 dismissing SPC Nos. 88-210, 88-218, 88-360 and 88-619 is hereby SUSTAINED. The proclamation of the winning candidates for local officials of the Municipality of Las Pinas is hereby AFFIRMED.SO ORDERED. (pp. 139-140, Rollo)On 13 July 1988 the COMELEC en banc disposed of a Motion for Clarification and/or Partial Reconsideration filed by Casimiro in SPC No. 88-218, thus:The Commission en banc notes that movant Casimiro, instead of presenting new issues or new evidence, merely invokes the Commission's sense of fairness and equity. Considering that the issue raised by movant Casimiro in this instant motion (legality of the continuation of the canvass from Las Pinas to the Comelec Central Office) is the same issue which has been squarely passed and ruled upon in the subject Resolution of June 9, 1988, the pending incident is nothing but a pro-formamotion.WHEREFORE, premises considered, the instant Motion for Clarification and/or Partial Reconsideration filed by movant Gabriel "Ben" Casimiro is hereby DENIED.SO ORDERED. (p. 151, Rollo)On 19 August 1988 petitioners Gabriel Casimiro and the UNIDO Party availed of the instant Petition for Certiorari and Mandamus against the COMELEC, the Las Pinas Board of Canvassers, and Rosalino Riguera as the principal respondents, docketed as G.R. Nos. 84462-63, seeking to annul and set aside:(a) a portion of the Decision of the Second Division of the COMELEC promulgated on March 25,1988;(b) the Resolution of the COMELEC En Banc promulgated on June 8,1988;and(c) the Resolution of the COMELEC En Banc dated July 13, 1988."all for allegedly having been issued with grave abuse of discretion and in excess of jurisdiction, and praying for judgment:x x x(ii) directing the respondent COMELEC to constitute a new Board of Canvassers for the purpose of recanvassing the deferred 340 election returns which were unlawfully and irregularly canvassed in the Manila COMELEC Office.(iii) annulling the proclamation of respondent Rosalino Riguera for having been premature and a nullity; and(iv) after the recanvass of the above 340 election returns and a determination that petitioner Gabriel Casimiro had won the said local elections for the Office of Mayor, that respondent COMELEC declare said petitioner Casimiro as the winner and thereafter proclaimed accordingly." (p. 46, Rollo)Respondents were required to file their Comment, which they have, respectively, done. Replies, Rejoinders, Sur-rejoinders and a Counter-manifestation have also been presented.In the meantime, an electoral protest (Election Case No. 88505) was filed by Reynaldo Salvador, a candidate for Councilor in Las Pinas, before the Regional Trial Court (RTC) of Makati, Branch 137. Acting thereon, Presiding Judge Santiago Ranada, Jr. scheduled the verification of the tally sheets and the opening of seven (7) ballot boxes relevant to the protest. Accordingly, the ballot boxes were transferred from the COMELEC Main Office to the RTC, Makati.Believing that the opening of said ballot boxes would adversely affect the outcome of this Petition, petitioners prayed before this Court for a Restraining Order enjoining Judge Ranada from enforcing his aforesaid Order.On 20 September 1988, this Court ordered "that Status Quo be maintained in this case by not opening the ballot boxes which is scheduled on September 22, 1988 before Judge Santiago Ranada until further orders from this Court and after the Court receives aforesaid comment of the Solicitor General on the main petition and on said motion for issuance of a temporary restraining order" (p. 174, Rollo).

It also appears that on 1 September 1988 Rustico Antonio and nine (9) other defeated UNIDO candidates for Councilors of Las Pinas filed another Petition for Certiorari and Mandamus before this Court, docketed as G.R. Nos. 84678-79, against the COMELEC, the Las Pinas Board of Canvassers and the proclaimed councilors seeking the nullification of the same COMELEC Decision (2nd Division) and Resolutions en banc) sought to be set aside in G.R. Nos. 84462-63. On 13 December 1988, upon motion duly filed in G.R. Nos. 84678-79 by Rustico Antonio, et al., this Court ordered consolidation of all said cases considering that the issues raised "are similar and/or identical."Petitioners' attribution of errors to the COMELEC reads:ITHE RESPONDENT COMELEC COMMITTED A SERIOUS ERROR AND A GRAVE ABUSE OF DISCRETION IN COMPLETELY DEPRIVING PETITIONERS OF THEIR BASIC, FUNDAMENTAL AND CARDINAL RIGHTS TO DUE PROCESS WHEN IT UPHELD THE VALIDITY OF THE CANVASSING OF ELECTION RETURNS CONDUCTED BY RESPONDENT MUNICIPAL BOARD OF CANVASSERS AT THE COMELEC MAIN OFFICE IN MANILA;IITHE RESPONDENT COMELEC COMMITTED A SERIOUS ERROR AND A GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT THE EVIDENCE PRESENTED BY PETITIONERS TO SUBSTANTIATE THEIR ELECTION CHARGE ARE NOT CLEAR, SUFFICIENT AND CONVINCING;IIITHE RESPONDENT COMELEC SERIOUSLY ERRED AND GRAVELY ABUSED IT'S DISCRETION WHEN IT FOUND THAT THE CHARGES OF PETITIONERS OF TAMPERED, PADDED AND SPURIOUS ELECTION RETURNS HAVE NOT BEEN PROVED WITH SUFFICIENT AND CONVINCING EVIDENCE AND THAT THE ELECTION RETURNS CANVASSED WERE TAMPERED WITH, FRAUDULENT AND SPURIOUS;IVTHE RESPONDENT COMELEC SERIOUSLY ERRED AND COMMITTED A GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT THE ALLEGATIONS IN ATTY. PATERNO LUBATON'S AFFIDAVIT, ONE OF THE COUNSEL OF THE PETITIONERS, REGARDING THE FRAUD, IRREGULARITIES AND ANOMALIES DURING THE CANVASSING PROCEEDINGS WERE ALL GENERALITIES THAT THE DENIAL BY THE BOARD OF CANVASSERS OF THEIR OBJECTIONS TO THE PROCEEDINGS CAN NO LONGER BE RAISED BEFORE THE RESPONDENT COMELEC;VTHE RESPONDENT COMELEC SERIOUSLY ERRED Al COMMITTED A GRAVE ABUSE OF DISCRETION IN FINDING THAT THE ALLEGED FAILURE OF PETITIONERS TO OBJECT TO SPECIFIC ELECTION RETURNS AT THE CANVASSING BOARD LEVEL IS FATAL TO PETITIONERS' CASE; andVITHE PROCLAMATION OF CANDIDATE ROSALINO RIGUERA DESPITE THE PENDENCY OF THE MOTION FOR RECONSIDERATION FILED BY PETITIONERS BEFORE THE RESPONDENT COMELEC WAS HASTY AND IN CONTRAVENTION OF ELECTION LAW AND RULES, HENCE, A NULLITY." (pp. 17-19, Rollo)We find the Petitions without merit and accordingly dismiss them.I. Petitioners contend that the canvass proceedings in the COMELEC Central Office were illegal for having been made without prior notice to them as to the date and time of canvassing for which reason they left the proceedings. They claim that their counsel was present at the COMELEC Main Office not for purposes of the canvassing on 2 February 1988 but only to accompany the transfer of the election returns and ballot boxes; that they had asked for the postponement of the canvassing for the following day as they had no watchers, tabulators and election paraphernalia, but that postponement was precipitately denied, by reason of which they were deprived of their basic and fundamental right to due process.The transfer of the canvassing from Las Pinas to the COMELEC Main Office in Manila was at petitioners' instance. The full text of the letter from the Municipal Board of Canvassers granting their request reads:"Feb. 2, 1988"THE Unido PartyLas Pinas, M.M.

Please be informed that as per order of the Commission on Elections dated 29 January 1988 the venue of the Canvass of Election Returns in the Municipality of Las Pinas will be transfer (sic) to the COMELEC Central office at Intramuros Manila this afternoon at 1:00 P.M. February 2, 1988.Note that we need your representative to accompany us in transferring the remaining election returns in the Central Office." (Annex "E", supra, p. 74, Rollo)The letter having clearly referred also to transfer of "the venue of the canvass", petitioners cannot justifiably claim that notice was lacking or that said notice was meant only for the transfer of election returns. If petitioners' representatives were absent during the canvassing it was because they had opted to leave the proceedings for reasons of their own. No grave abuse of discretion can be attributed to the COMELEC, therefore, in upholding the validity of the canvassing at its Main Office.At any rate, when petitioners objected to the canvassing held by the Board at the COMELEC Main Office for alleged lack of prior notice, it actually contested its proceedings. The Board, by continuing with the canvass, in effect overruled the objections. Under Section 244 of the Omnibus Election Code, the proceedings of the Board having been contested, petitioners should have appealed the matter within five (5) days from the time the contested ruling or proceeding was held. As found by the COMELEC, however, said appeal was not made within the reglementary period.Errors II, III, and IV may be considered jointly.To substantiate their charge of anomalies and irregularities including the allegations that many election returns were canvassed more than once; that ghost precincts were credited with election returns, and that election returns were tampered with, padded and were spurious, petitioners relied on the Affidavit of Atty. Florencio Dalupang their own Head Watcher/ Representative. Petitioners claim that the totality of the circumstances recited in that Affidavit reveal a "clear pattern of anomalous acts" and that the Affidavit detailed with particularity the illegalities committed, as well as the individual precincts where the anomalies existed; and that said Affidavit meets the standard of substantial evidence.Petitioners likewise submitted the Affidavit of Atty. Paterno Lubaton one of petitioners' lawyers, which they claim showed in detail all the fraud, irregularities and anomalies concerning the election returns before and during the canvassing of the returns first in Las Pinas and later at the COMELEC main office. Petitioners claim that the latter part of the Affidavit also detailed the "patently partial and biased actuations of the Board of Canvassers, especially its Chairman." Petitioners further decry the fact that no hearing was conducted by the Second Division of the COMELEC where petitioners could have presented the affiants as their witnesses.Obviously, the evidence relied upon mainly by petitioners to support their charges of fraud and irregularities in the election returns and in the canvassing consisted of Affidavits prepared by their own representatives. The self-serving nature of said Affidavits cannot be discounted. As this Court has pronounced, reliance should not be placed on mere affidavits (Pimentel, Jr. vs. COMELEC, 140 SCRA 126,148).Aside from said sworn statements, the records do not indicate any other substantial evidence that would justify the exclusion of election returns in the canvassing for being fraudulent in character or a declaration that the proceedings wherein the returns were canvassed were null and void. The evidence presented by petitioners is not enough to overturn the presumption that official duty had been regularly performed (Section 5[m], Rule 131). In the absence of clearly convincing evidence, the election returns and the canvassing proceedings must be upheld. A conclusion that an election return is obviously manufactured or false and consequently should be disregarded in the canvass must be approached with extreme caution, and only upon the most convincing proof (Estrada vs. COMELEC, 21 SCRA 1514, 1519).Nor can COMELEC be faulted for merely requiring the parties to submit their respective Memoranda in support of their respective positions. The requirement under Section 246 of the Omnibus Election Code is that the parties be notified and heard. Petitioners were so notified. They were also given an opportunity to submit evidence in support of their allegations. They were required to submit a Memorandum in amplification of their position. Such procedure is fair, valid and acceptable and is consistent with the summary character of proceedings in election cases. As held in Alonto vs COMELEC (22 SCRA 878), the policy of election laws is that pre-proclamation cases

should be summarily decided, consistent with the law's desire that the canvass and proclamation be delayed as little as possible.Moreover, the issue as to whether the election returns objected to by petitioners are fraudulent in character, tampered with, or spurious, clearly necessitates factual determinations on matters within the exclusive function of the Commission.V. Petitioners claim that the COMELEC seriously erred and gravely abused its discretion in ruling that they bad failed to object to specific election returns at the canvassing Board level because they did interpose written objections to the Canvassing Board. In the same breath they allege, however, that "they could not have intelligently and effectively registered their objections during the proceedings as the defects, anomalies and irregularities were not apparent or noticeable on the face of the election returns" (p. 42, Rollo). These inconsistent assertions cast doubts on the credibility of petitioners' allegations.And even assuming that the alleged failure of petitioners to object to specific election returns at the canvassing board level is not fatal to their cause because Section 241 of the Omnibus Election Code allows them to bring their case directly to the COMELEC, the fact remains that the letter body passed upon petitioners' allegations and charges concerning the election returns and the canvassing proceedings, and the verdict of the poll body was that the charges are either unsubstantiated or mere generalities, taking note of the self-serving nature of the affidavits petitioners presented as evidence to support their charges.VI. True, candidate Rosalino Riguera was proclaimed soon after the promulgation of the Decision of the COMELEC Second Division of 25 March 1988. It cannot be denied, however, that the Board of Canvassers has the legal obligation, after canvass of the returns, to proclaim the elected candidates (Abes vs. COMELEC, 21 SCRA 1252). The duty of the Board to so proclaim is ministerial after the mechanical or mathematical act of counting the votes cast has been accomplished. Neither should it be lost sight of that the Board proclaimed the winners pursuant to the COMELEC Decision dated 25 March 1988 ordering the board "to reconvene, complete the canvass if not yet completed, and proclaim the winning candidates. . ." The proclamation, therefore, was in compliance with that di restive. The Motion for Reconsideration filed by petitioners was dated 29 March 1988 (p. 126, Rollo) while the proclamation was made right after the promulgation of the COMELEC Second Division's Decision on 25 March 1988. Hence, petitioners' allegation that the proclamation was improper because it was made during the pendency of a Motion for Reconsideration suffers from inaccuracy.Finally, it must be stressed that private respondent Rosalino Riguera and the other winning candidates bad already been proclaimed and bad assumed office. The Petitions below had ceased to be pre-proclamation controversies. As held in Padilla vs. COMELEC (137 SCRA 424) and in a number of cases, a pre-proclamation controversy is no longer viable at this point of time and should be dismissed, the proper remedy being an electoral protest before the proper forum. Instead of the submission of mere affidavits, the parties would be able to present witnesses subject to the right of confrontation. Recourse to such a remedy would settle the matters in controversy conclusively and once and for all.WHEREFORE, the instant Petitions are hereby DISMISSED for petitioners' failure to demonstrate that public respondent COMELEC committed grave abuse of discretion amounting to lack of jurisdiction in issuing the questioned Decision and Resolutions.The status quo Order directed to the Regional Trial Court of Makati, Branch 137, restraining the said Branch from opening the seven (7) ballot boxes in connection with the electoral protest filed before it by Reynaldo Salvador is hereby LIFTED.SO ORDERED.

G.R. Nos. 166143-47 November 20, 2006ABDUSAKUR M. TAN and BASARON BURAHAN, Petitioners, vs. COMMISSION ON ELECTIONS, THE PROVINCIAL BOARD OF CANVASSERS OF SULU, THE MUNICIPAL BOARDS OF

CANVASSERS OF MAIMBUNG, LUUK, TONGKIL, PANAMAO, ALL PROVINCE OF SULU, BENJAMIN LOONG and NUR-ANA SAHIDULLA, Respondents.x-------------------------------------------------xG.R. No. 166891 November 20, 2006BENJAMIN T. LOONG, Petitioner, vs. COMMISSION ON ELECTIONS (First Division) and YUSOP H. JIKIRI, Respondents.D E C I S I O NVELASCO, JR., J.:We have found it necessary to regulate liberty;so we find it necessary to regulate competition. [1]—former U.S. Supreme Court Justice Louis Dembitz BrandeisElection cases, indeed, "involve not only the adjudication of the private interests of rival candidates, but also the paramount need of dispelling the uncertainty which beclouds the real choice of the electorate x x x." 2 The public nature of election cases is ensconced in the people’s suffrage—which encompasses public choices and interests. In their capacity as having sovereign authority, the Filipino people are accorded the constitutional right of suffrage to select the representatives to public office. To ensure that Filipinos fully and freely enjoy this right and that their choices are recognized, the right of suffrage must be safeguarded. Courts should thus be vigilant in protecting this constitutional right so that the people’s voice would not be stifled.The CaseBefore us are two petitions under Rule 65 of the Rules of Court. The first is the Petition for Certiorari and Prohibition with Prayer for the Issuance of a Writ of Preliminary Injunction and/or a Temporary Restraining Order 3 under G.R. Nos. 166143-47 which seeks to set aside the October 18, 2004 Joint Resolution 4 of the COMELEC en banc which rejected the prayer for declaration of failure of elections by petitioners Tan and Burahan in SPA Nos. 04-336, 04-337, 04-339, and 04-340, and by Yusop Jikiri in SPA No. 04-334 which is not under consideration in this petition. The other is a Petition for Certiorari with Prayer for a Temporary Restraining Order and/or Writ of Preliminary Injunction 5under G.R. No. 166891 which seeks to annul and set aside the December 14, 2004 6 and February 7, 2005 7 Orders of the COMELEC First Division, which denied petitioner Loong’s motion to dismiss in EPC Case No. 2004-66.Through the Supreme Court en banc September 12, 2006 Resolution, these cases were consolidated because they arose substantially out of the same facts set forth below:The FactsPetitioners Abdusakur M. Tan and Basaron Burahan were the gubernatorial and vice-gubernatorial candidates, respectively, of Sulu Province in the May 10, 2004 national and local elections. On May 17, 2004, petitioners, together with other local candidates for congressman, mayor, and vice-mayor, filed with the COMELEC four (4) Petitions for Declaration of Failure of Elections in the towns of Maimbung, Luuk, Tongkil, and Panamao, all of Sulu Province, docketed as SPA Nos. 04-336, 8 04-337, 9 04-339, 10 and 04-340, [11]respectively. For the municipality of Luuk, Sulu, another Petition for Declaration of Failure of Elections was filed by another gubernatorial candidate, Yusop Jikiri, and it was docketed as SPA No. 04-334. [12]Petitioners Tan and Burahan alleged systematic fraud, terrorism, illegal schemes, and machinations allegedly perpetrated by private respondents and their supporters resulting in massive disenfranchisement of voters. Petitioners submitted various affidavits and photographs to substantiate their allegations: [13]In SPA No. 04-336 (Maimbung, Sulu), petitioners submitted the affidavits of poll watchers Ramil P. Singson, Otal Ibba, Sahak P. Ibrahim, Randy J. Jurri, Hayudini S. Jamuri, and municipal councilor candidate Jumdani Jumlail. [14]In SPA No. 04-337 (Luuk, Sulu), petitioners submitted the affidavits of poll watchers Nijam Daud, Arsidan Abdurahman, Bensali Kamlian, Gamar Basala, Najir Ahamad, Apal A. Emamil, Say Abdurasi, Faizal Husbani, Sikal Lastam, Muktar Ailadja, Rujer Abdulkadil, Jurmin Suraid, Bakkar Jamil, Musid Madong, Nasib Nurin, Jul-Islam Benhar, Basiri Hamsah, and registered voters Sahaya Muksan, Juratol Asibon, Nuluddin Malihul, Tantung Tarani, Jul Ambri Abbil, and Harahun Arola. [15]

In SPA No. 04-339 (Tongkil, Sulu), petitioners submitted the affidavits of poll watchers Talib Usama, Lingbird Sabtal, Yusop Mirih, Kasim Akol, Ammad Madon, Dayting Imamil, Nonoy T. Kiddang, Nilson Bakil, Boy Sabtal, Reagan Bensali, Alguiser Abdulla, Gaming Talib, Munir Ukkang, Abdurahim Sairil, Alcafon Talib, Rosefier Talib, Julbasil Sabtal, Darwin Lalik, Merinisa T. Abdurasid, Lim Tingkahan, and Mujina G. Talib, [16]over-all coordinators of Tongkil mayoralty candidate Olum Sirail.Affiant poll watcher Merinisa T. Abdurasid attested to taking seven (7) photographs [17] allegedly showing electoral irregularities.In SPA No. 04-340 (Panamao, Sulu), petitioners submitted the affidavits of poll watchers Amina D. Undug, Dinwaza Undug, Sitti Aiza Undug, Amina Undug, Indah Taas Undug, Fadzrama Aukasa, Moreno Adjani, Nurhaida S. Undug, Nurjaina S. Abubakar, and Altimir A. Julhani. [18]Affiant poll watcher Altimir A. Julhani attested to taking five (5) photographs [19] allegedly showing electoral irregularities.Petitioners submitted additional affidavits and photographs, particularly the affidavits of Maimbung, Sulu poll watchers Aminkadra Abubakar, Abdulla Abubakar, Mhar Sappari, Nasirin Al-Najib, Marvin Saraji, Naufal Abubakar, Rhino Gumbahali, Basik Abton, Abzara H. Mudahi, Ayatulla Jakaria, Uttal Iba, Sin-sin Buklasan, Mardison I. Bakili, Abdurasmin Abdurahman, Binnar Pitong, Mahrif Sumlahani, Albinar S. Asaad, including that of photojournalist Alfred Jacinto-Corral [20] who attested taking nine (9) photographs [21] showing election irregularities.Likewise, a report was submitted by Philippine Army 1Lt. Arthur V. Gelotin, Commanding Officer of Alpha Company, 563rd Infantry (Matapat) BN 11D, Tanduh Patong, Maimbung, Sulu, which allegedly showed massive failure of voters to cast their ballots. [22]Meanwhile, the COMELEC Second Division, acting on the Petitions for Declaration of Failure of Elections, issued its May 17, 2004 Order suspending the proclamation of the winning gubernatorial candidate of Sulu, [23] but lifted the suspension three (3) days later. In the May 20, 2004 lifting Order, the COMELEC Second Division directed the Sulu PBOC to complete the canvass of votes and "to bring all canvass documents to Manila, and to proclaim the winning candidates for Governor in Manila." [24]Even before the filing of the four (4) aforesaid petitions, Abdusakur M. Tan had filed four (4) other petitions, one before the Municipal Board of Canvassers of Parang, Sulu for the exclusion of election returns from several precincts docketed as SPA No. 04-138, and the other three before the Provincial Board of Canvassers of Sulu to exclude certificates of canvass from Luuk, Panamao, and Parang docketed as SPA Nos. 04-163, 04-164 and 04-165, respectively. All these petitions were dismissed by the Boards concerned, prompting petitioner Tan to file an appeal with the COMELEC First Division which issued an Order [25] on May 24, 2004 directing the concerned boards of canvassers to suspend their proceedings and to refrain from proclaiming any winning candidate.However, on the same day that the COMELEC First Division issued the said Order, private respondent Benjamin Loong was proclaimed the winning governor of Sulu and he assumed office. This prompted petitioner Tan to file a Petition for Annulment of the Proclamation with the COMELEC First Division, docketed as SPA No. 04-205.On June 21, 2004, the COMELEC First Division issued an Order [26] which granted the petition and annulled the proclamation of respondent Loong as governor of Sulu Province.In the meantime, on July 19, 2004, respondent Yusop H. Jikiri filed before the COMELEC a Petition of Protest Ad Cautelam, [27] docketed as EPC No. 2004-66 praying, inter alia, for the recount or revision of the ballots cast and the examination of election returns in four (4) municipalities of Sulu, namely, Luuk, Tongkil, Maimbung, and Parang.The COMELEC en banc, through its October 18, 2004 Joint Resolution, dismissed all five (5) petitions filed on May 17, 2004 to declare a failure of elections. This prompted respondent Jikiri to immediately convert his petition ad cautelam into a regular election protest which was granted by the COMELEC First Division in an Order [28] dated October 28, 2004.Ruling of the Commission on Elections En Banc inSPA Nos. 04-334, 04-336, 04-337, 04-339, and 04-340On October 18, 2004, the COMELEC en banc, through a Joint Resolution, [29] dismissed the five (5) Petitions to Declare Failure of Elections in the towns of Maimbung, Luuk, Tongkil, and Panamao, for lack of merit.

The COMELEC en banc ruled that there was no failure of election in the subject municipalities of Sulu. It reasoned that it could only exercise the extraordinary remedy of declaring a failure of election in the three instances mentioned in Carlos v. Angeles, [30] in relation to Section 6 of the Omnibus Election Code [31] and Section 4 of RA 7166, which in gist are: (1) the election is not held, (2) the election is suspended, or (3) the election results in a failure to elect.In dismissing the petitions, the COMELEC held that none of the grounds relied upon by petitioners fall under any of the three instances justifying a declaration of failure of election. First, the COMELEC found that based upon the evidence presented by the parties, a valid election was held as scheduled. Second, there was no suspension of the election as voting continued normally. Third, private respondent Loong was elected by a plurality of votes as proclaimed by the Provincial Board of Canvassers (PBC).While the authenticity and integrity of the election returns from the municipalities of Luuk and Panamao were questioned by petitioner Tan, those of Maimbung and Tongkil were left undisturbed throughout the preparation, transmission, custody, and canvass of the returns. Petitioners alleged that fraud and terrorism took place in Luuk and Panamao because voters were forced to affix their signatures and thumbprints; and the ballots in Luuk and Panamao were filled out by respondents’ poll watchers and supporters.Citing Grand Alliance for Democracy v. COMELEC, [32] the COMELEC en banc ruled that the grounds raised by petitioners were best ventilated in an election protest.The COMELEC did not give credence to petitioners’ evidence in support of their allegations of fraud and terrorism since their evidence consisted mainly of affidavits executed by their own poll watchers. The Commission considered the affidavits self-serving and insufficient to annul the results of the election. Besides, it pointed out that petitioners presented only a single affidavit of an alleged disenfranchised voter. Thus, on October 18, 2004, the COMELEC, through a Joint Resolution, dismissed the petitions for lack of merit. Petitioners’ counsel received a copy of the Joint Resolution on October 21, 2004.However, the Joint Resolution was not concurred in by COMELEC Commissioner Mehol K. Sadain who signed it with a note: "DISSENTING. DISSENTING OPINION TO FOLLOW." Subsequently, Commissioner Sadain submitted his Dissenting Opinion [33] on November 23, 2004 or 36 days after the joint resolution was issued. The Commissioner opined that there was failure of elections as the voters were allegedly not sufficiently informed about the change and transfer of polling places (clustering of precincts) approved [34] by the COMELEC en banc on May 9, 2004 or on the eve of the May 10, 2004 elections. Commissioner Sadain cited Hassan v. COMELEC [35] and Basher v. COMELEC[36] which held that insufficient notice of the change of date and venue deprived voters of the opportunity to participate in the elections.This basis of Commissioner Sadain’s Dissenting Opinion, however, was not raised by the petitioners in their May 17, 2004 petitions (for declaration of failure of elections) before the COMELEC.The Sadain Dissenting Opinion was released on November 23, 2004, and a copy of the opinion was served on petitioners’ counsel on November 24, 2004. Petitioners filed the instant petition in G.R. Nos. 166143-47 on December 13, 2004, 19 days after they received a copy of the Sadain Dissenting Opinion, and 53 days after they received a copy of the October 18, 2004 Joint Resolution.Denial by the COMELEC First Division ofPetitioner Loong’s motion to dismiss in EPC No. 2004-66After the dismissal of the petitions to declare failure of elections on October 18, 2004 and the conversion of respondent Jikiri’s protest ad cautelam to a regular election protest on October 28, 2004, petitioner Benjamin T. Loong filed on November 8, 2004 his Answer with Motion to Dismiss and/or with Counter Protest. [37] Petitioner Loong anchored his motion to dismiss on the ground that the COMELEC had no jurisdiction to take cognizance of an election protest filed out of time.On December 14, 2004, the COMELEC First Division issued the first assailed Order [38] denying petitioner Loong’s motion to dismiss, ruling that the protest was not filed out of time as there were still pending pre-proclamation cases before it, the result of which could affect Loong’s motion. It further held that it did not matter that these pre-proclamation cases were not filed by respondent Jikiri but by another candidate, Abdusakur M. Tan, as Section 248 of the Omnibus Election Code does not require that the petition to annul or suspend the proclamation

be filed by the protestant. Thus, the COMELEC First Division concluded that these pending pre-proclamation cases would not prevent respondent Jikiri from converting his protest ad cautelam into a regular one, and which fact would not preclude the Commission from deciding the election protest case. After all, the COMELEC First Division noted that pre-proclamation controversies and election protest cases have different causes of action, and thus, could proceed independently. Finally, the COMELEC First Division directed the concerned parties to take the appropriate steps to address the financial and personnel requirements for the protest and counter-protest proceedings.Subsequently, petitioner Loong’s Motion for Reconsideration [39] was denied through the second assailed February 7, 2005 Order [40]which directed COMELEC field personnel to comply with the directives of the December 14, 2004 Order. However, in a subsequent order, the COMELEC First Division stayed the implementation of these directives pending resolution of the instant petition in G.R. No. 166891.Meanwhile, on March 18, 2005, the COMELEC First Division’s dismissal of the appeal filed by petitioner Abdusakur M. Tan in SPA Nos. 04-163, 04-164, and 04-165 for the exclusion of certificates of canvass, [41] rendered moot and academic the issue on the annulment of the proclamation of Benjamin Loong as governor of Sulu.The IssuesIn G.R. Nos. 166143-47, petitioners Tan and Burahan raise the following issues for our consideration:Whether [or not] the respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction, in dismissing the consolidated petitions despite the evident massive disenfranchisement of the voters.Whether [or not] the proclamation of the respondents, albeit patently null and void, bars the filing of the instant petitions for declaration of failure of elections. [42]In G.R. No. 166891, petitioner Loong simultaneously raises the following issues before us:Whether [or not] the COMELEC has jurisdiction to entertain electoral protests filed beyond ten (10) days after the proclamation of the results of an election for a given provincial office.Whether [or not] the COMELEC has jurisdiction to entertain simultaneously pre-proclamation controversies and electoral protests.The Court’s RulingThe petitions are bereft of merit.G.R. Nos. 166143-47Preliminary Issue: Timeliness of the PetitionPetitioners Tan and Burahan maintain that the 30-day reglementary period to file the petition for certiorari only started to run on November 24, 2004, the day they received a copy of the November 23, 2004 Dissenting Opinion, which completed the Joint Resolution. Moreover, they contend that the assailed October 18, 2004 Joint Resolution received by petitioners on October 21, 2004 was incomplete since the sole Dissenting Opinion was withheld and they could not intelligently and reasonably file the instant petition without it.On the other hand, both the Office of the Solicitor General (OSG) and private respondent Loong strongly assert that the instant petition was filed out of time as the start of the reglementary period to file the appeal must be counted from the receipt of the October 18, 2004 Joint Resolution—since it is the judgment and not the Sadain Dissenting Opinion being assailed. They also point out that the withheld Dissenting Opinion is only Commissioner Sadain’s view and, thus, neither is it essential to nor does it affect the ruling of the COMELEC en banc.Constitution and Rules silent on when a Decision is CompleteTo resolve the preliminary procedural matter on whether the appeal was filed on time, the Court must first determine whether a separate dissenting opinion in an election case before the COMELEC is a part or component of a resolution or decision.Section 13, Article VIII of the 1987 Constitution provides:The conclusions of the Supreme Court in any case submitted to it for decision en banc or in division shall be reached in consultation before the case is assigned to a Member for the writing of the opinion of the Court. A certification to this effect signed by the Chief Justice shall be issued and a copy thereof attached to the record of the case and served upon the parties. Any Member who took no part, or dissented, or abstained from a decision

or resolution, must state the reason therefor. The same requirement shall be observed by all lower collegiate courts. (Emphasis supplied)This constitutional directive was adopted in Section 1, Rule 18 on Decisions of the COMELEC Rules of Procedure which states:Section 1. Procedure in Making Decisions.—The conclusions of the Commission in any case submitted to it for decision en banc or in Division shall be reached in consultation before the case is assigned by raffle to a Member for the writing of the opinion of the Commission or the Division and a certification to this effect signed by the Chairman or the Presiding Commissioner, as the case may be, shall be incorporated in the decision. Any Member who took no part, or dissented, or abstained from a decision or resolution must state the reason therefor.Every decision shall express therein clearly and distinctly the facts and the law on which it is based.The above-quoted Sections from the Constitution and the COMELEC Rules of Procedure are silent as to what constitutes a decision—whether it is solely the majority opinion or whether the separate concurring or dissenting opinions are considered integral parts of it.Decision complete with the required majority opinionThe Court rules that a resolution or decision of the COMELEC is considered complete and validly rendered or issued when there isconcurrence by the required majority of the Commissioners. Section 7 of Article IX-A, 1987 Constitution pertinently provides that:SEC. 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.There is nothing from the above constitutional proviso nor in the COMELEC Rules of Procedure that requires the submission of a dissenting opinion before a decision or resolution concurred by the required majority is validly rendered, i.e. complete. Put otherwise, with the required majority vote, the majority opinion embodied in a decision or resolution duly promulgated is validly rendered and issued despite dissent or inhibition of the minority, and even if the reason for the dissent or inhibition is submitted much later than its promulgation.Moreover, the dissenting opinion, which is only Commissioner Sadain’s view, is not essential to nor does it affect the ruling of the COMELECen banc. Separate opinions not approved by the required majority of the court members, whether they be concurring or dissenting opinions, must be distinguished from the opinion of the court. [43] Verily, the joint resolution is the ruling being assailed and not the dissenting opinion. It is clear that, not being essential to the assailed joint resolution, the dissenting opinion merely serves to comply with the constitutional proviso that any member who dissented from a decision or resolution must state the reason therefor. [44]In sum, the 30-day reglementary period must be reckoned from the receipt of the decision, order or resolution and not from the receipt of a dissenting opinion issued later. In the instant case, the dissenting opinion was submitted and promulgated 36 days after the assailed joint resolution.Sections 3 and 4, Rule 18 of COMELEC Rulesof Procedure: UnconstitutionalUnder the COMELEC Rules of Procedure there is an instance when the 30-day reglementary period to appeal is reckoned other than the date of receipt of the resolution or decision. This is when an extended opinion is reserved. The 30-day reglementary period starts to run only upon the receipt by the parties of the reserved extended opinion released within 15 days from the promulgation of the resolution or decision. Sections 3 and 4 of Rule 18, COMELEC Rules of Procedure provides thus—Section 3. When Extended Opinion Reserved.—When in a given resolution or decision the writing of an extended opinion is reserved, the extended opinion shall be released within fifteen (15) days after the promulgation of the resolution.

Section 4. Period to Appeal or File Motion for Reconsideration When Extended Opinion is Reserved.—If an extended opinion is reserved in a decision or resolution, the period to file a petition for certiorari with the Supreme Court or to file a motion for reconsideration shall begin to run only from the date the aggrieved party received a copy of the extended opinion. (Emphasis supplied.)From the above-quoted rules, it may be considered that the dissenting opinion duly noted "to follow" in the joint resolution is an extended reserved opinion. But such won’t serve to help petitioners’ position. While we are sympathetic to the predicament of petitioners, we however declare that Sections 3 and 4 of Rule 18, COMELEC Rules of Procedure are unconstitutional and must perforce be struck down. The 1987 Constitution, under Article IX-A, Section 6 [45] and Article IX-C, Section 3, [46] grants and authorizes the COMELEC to promulgate its own rules of procedures as long as such rules concerning pleadings and practice do not diminish, increase or modify substantive rights; on the other hand, this Court has a rule-making power provided in Article VIII, Section 5, paragraph (5) [47]—the constitutional prerogative and authority to strike down and disapprove rules of procedure of special courts and quasi-judicial bodies.Thus, we exercise this power and authority in voiding Sections 3 and 4 of Rule 18, COMELEC Rules of Procedure for contravening Article IX, Section 7 of the 1987 Constitution which pertinently provides:Sec. 7. x x x Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty [30] days from receipt of a copy thereof (emphasis supplied).The above quoted constitutional proviso clearly posits the unequivocal scenario that a decision, order, or ruling is issued complete with separate opinions duly incorporated upon its promulgation. It does not envision what Sections 3 and 4 of Rule 18 provide—an unwarranted extension of the period to file an appeal on certiorari.Besides, striking down Sections 3 and 4 of Rule 18 will obviate future confusion as to when the 30-day reglementary period is reckoned and forestall unnecessary delays in the processing and adjudication of election cases and proceedings. It will reinforce the correct judicial practice—which public respondent COMELEC practices—of promulgating all separate opinions together with the majority opinion. Thus, in line with this ruling, we leave it to respondent COMELEC to promulgate a more orderly rule pursuant to its rule making power under the Constitution to ensure that the majority and separate opinions are collated and appended together to constitute a complete decision, order, or ruling before it is promulgated by the clerk of court and to devise a procedure that makes certain of the prompt submission of the reserved extended or separate opinion within a fixed period.Petition filed out of timeForegoing considered, the instant petition was clearly filed out of time. Having received the joint resolution on October 21, 2004 petitioners had until November 20, 2004, the last day of the 30-day reglementary period, within which to file the petition for certiorari. For filing the instant petition only on December 13, 2004 or 23 days beyond the 30-day reglementary period, the instant petition must be dismissed for being filed out of time.Separate opinions submitted before promulgationNonetheless, it has to be made clear that decisions, resolutions or orders of collegiate courts must have separate concurring or dissenting opinions appended to the majority opinion before these are promulgated. And it is the responsibility of the clerk of court to ensure that these separate opinions are submitted within the required period so that the decision, resolution or order is timely promulgated.There are two (2) salient reasons why this principle must be followed, to wit:First, both parties deserve to know all the views of the collegiate court who voted for the majority and minority opinions and the reasons why they voted in such manner, especially the losing party deciding to appeal to a higher court.Second, if the separate opinions are not appended to the main opinion, the parties will have difficulty understanding the dissertation in theponencia of the majority that addressed the points raised and reasons presented in the separate opinions, more particularly in the dissenting opinion.Even if we concede that Tan and Burahan’s petition was filed on time, we find that the petition failed to establish that the COMELEC en banc committed grave abuse of discretion.First Issue: No Disenfranchisement of Voters

Ground not raised below cannot be raised on appealThe records of the case from the COMELEC show that petitioners did not raise the alleged abrupt change of polling place as an issue.Petitioners now modify their theory on appeal. Quoting extensively Commissioner Sadain’s Dissenting Opinion which applied Hassan [48]and Basher, [49] petitioners now allege that the sudden change in the polling places deprived the candidates and voters of sufficient notice which afforded private respondents undue advantage and enabled them to engage the alleged election irregularities to ensure their victory.The aforementioned issue is now raised only for the first time on appeal before this Court. Settled is the rule that issues not raised in the proceedings below (COMELEC en banc) cannot be raised for the first time on appeal. Fairness and due process dictate that evidence and issues not presented below cannot be taken up for the first time on appeal. [50]Thus, in Matugas v. Commission on Elections, [51] we reiterated this rule, saying:The rule in appellate procedure is that a factual question may not be raised for the first time on appeal, [52] and documents forming no part of the proofs before the appellate court will not be considered in disposing of the issues of an action. [53] This is true whether the decision elevated for review originated from a regular court [54] or an administrative agency or quasi-judicial body, [55] and whether it was rendered in a civil case, [56] a special proceeding, [57] or a criminal case. [58] Piecemeal presentation of evidence is simply not in accord with orderly justice.Moreover, in Vda. De Gualberto v. Go, [59] we also held:In Labor Congress of the Philippines v. NLRC, [60] we have made it clear that "to allow fresh issues on appeal is violative of the rudiments of fair play, justice and due process." [61] Likewise, in Orosa v. Court of Appeals, [62] the Court disallowed it because "it would be offensive to the basic rule of fair play, justice and due process if it considered [the] issue[s] raised for the first time on appeal." We cannot take an opposite stance in the present case.Information on clustering of polling places dulydisseminated to the electorateEven granting arguendo that the issue of the alleged change and transfer of polling places was raised before the COMELEC, it would still not justify a declaration of failure of election in the subject municipalities.The records sufficiently shed light on this issue and dispel any doubt as to the failure of election as alleged. It is apparent that the May 9, 2004 approval of the change and transfer of polling places—which was duly disseminated to the parties, candidates, and voters—was a mere formality to confirm what was already set way before the May 10, 2004 elections.The April 13, 2004 COMELEC Resolution No. 6695 [63] granted authority to the Commissioners-in-Charge of regions to decide on all administrative matters not covered by specific resolutions or policies. The clustering of precincts in Sulu Province was an administrative matter that COMELEC Commissioner Manuel A. Barcelona, Commissioner-in-Charge of Region IX, approved and caused to be disseminated through COMELEC Regional Director of Region IX, Helen G. Aguila-Flores, in conjunction with the AFP and Election Officers. Consequently, the concerned political parties, candidates, and registered voters of Sulu Province had sufficient time to be informed about the location of the polling places and the clustering of precincts before the May 10, 2004 elections.Pursuant to COMELEC Resolution No. 6695 of April 13, 2004, Commissioner Barcelona submitted for confirmation to the COMELEC en banchis memorandum [64] on the approval of clustering of precincts in Sulu Province. Consequently, COMELEC Resolution No. 6932 [65] was issued on May 9, 2004 confirming Commissioner Barcelona’s prior approval of the clustering of precincts. Contrary to Commissioner Sadain’s Dissenting Opinion and what petitioners want us to believe, there was no lack of ample notice to petitioners, their poll watchers and supporters, and the voters of the subject municipalities in Sulu Province about the clustering of precincts and the transfer of polling centers before the May 10, 2004 elections. As a matter of fact, petitioners had their poll watchers in place, particularly those who executed affidavits on the alleged irregularities. This explains why petitioners avoided raising this issue in their Petitions for Declaration of Failure of Election before the

COMELEC en banc. Thus, petitioners cannot rely on this argument for support. Significantly, Commissioner Sadain approved and signed COMELEC Resolution Nos. 6695 and 6932. [66]No failure of electionPetitioners argue that there was failure of elections in the four (4) subject municipalities as there was really no election held because all the ballots in these municipalities were filled out by private respondents’ relatives and supporters. They assert that there was merely a sham election followed by a similar sham canvassing, and the voters were consequently disenfranchised. They strongly maintain that this instant case falls within the first instance under Section 6 of the Omnibus Election Code [67] where a failure of election may be declared by COMELEC.We are not persuaded.The COMELEC correctly dismissed the Petitions for Declaration of Failure of Election since the electoral anomalies alleged in the petitions should have been raised in an election protest, not in a petition to declare a failure of election.Under Republic Act No. 7166, otherwise known as "The Synchronized Elections Law of 1991," [68] the COMELEC en banc is empowered to declare a failure of election under Section 6 of the Omnibus Election Code. Section 6 of the Code prescribes the conditions for the exercise of this power, thus:Section 6. Failure of Election.—If, on account of force majeure, violence, terrorism, fraud or other analogous causes[,] the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect.From the above-cited proviso, three (3) instances justify the declaration of failure of election, to wit:(a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes;(b) the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogous causes; or(c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such electionresults in a failure to elect on account of force majeure, violence, terrorism, fraud, or other analogous causes. [69]In these three (3) instances, there must be a resulting failure to elect. As stated in Banaga, Jr. v. Commission on Elections, "this is obvious in the first two scenarios, where the election was not held and where the election was suspended." [70] As to the third scenario, where the preparation and the transmission of the election returns give rise to the consequence of failure to elect must, as mentioned earlier, be interpreted to mean that nobody emerged as a winner. [71]In Banaga, we held that:Before the COMELEC can act on a verified petition seeking to declare a failure of election two conditions must concur, namely (1) no voting took place in the precinct or precincts on the date fixed by law, or even if there was voting, the election resulted in a failure to elect; and (2) the votes not cast would have affected the result of the election. [72] Note that the cause of such failure of election could only be any of the following: force majeure, violence, terrorism, fraud or other analogous causes. [73]A scrutiny of the petitions filed before the COMELEC shows that petitioners never alleged that no voting was held nor was voting suspended in the subject municipalities. Neither did petitioners allege that no one was elected. Petitioners only allege that there was a sham election and similar sham canvassing. As noted earlier, to warrant a declaration of failure of election, the alleged irregularities must be proven to have prevented or suspended the holding of an election, or marred fatally the preparation and transmission, custody, and canvass of the election

returns. These essential facts should have been clearly alleged by petitioners before the COMELEC en banc, but they were not.No evidence of massive disenfranchisementPetitioners want us to examine the evidence and the findings of facts by the COMELEC en banc asserting that there was evident massive disenfranchisement of voters. While this Court is not a trier of facts, and under the Constitution, this Court resolves "cases in which only an error or question of law is involved." [74] Nevertheless, after a thorough examination of the documentary evidence presented by petitioners in the proceedings below, we find no cogent reason to alter the findings and conclusions of respondent COMELEC en banc.Factual findings of the COMELEC which has the expertise in the enforcement and administration of all election laws and regulations are binding on the Court [75] and must be respected. Besides, based on the COMELEC en banc’s scrutiny of the facts, the allegations do not constitute sufficient grounds to nullify the election. We agree with the finding of the COMELEC en banc that the evidence relied upon by petitioners to support their charges of fraud and irregularities in the conduct of elections in the questioned municipalities consisted of affidavits prepared and executed by their own representatives; and that the other pieces of evidence submitted by petitioners were not credible and inadequate to substantiate petitioners’ charges of fraud and irregularities in the conduct of elections. [76] Mere affidavits are insufficient, [77] more so, when they were executed by petitioners’ poll watchers. The conclusion of respondent COMELEC is correct that although petitioners specifically alleged violence, terrorism, fraud, and other irregularities in the conduct of elections, they failed to substantiate or prove said allegations. Had there been massive disenfranchisement, petitioners should have presented the affidavits of these disenfranchised voters, instead of only a single affidavit of one allegedly disenfranchised voter. [78]We go along with the COMELEC en banc in giving more weight to the affidavits and certifications executed by the members of the Board of Election Inspectors and the PNP and military authorities that the elections held were peaceful and orderly, under the presumption that their official duties had been regularly performed. [79]Verily, the above-mentioned sole affidavit of Miriam H. Binang, an alleged disenfranchised voter from the Municipality of Luuk, Sulu presented by gubernatorial candidate respondent Yusop Jikiri in SPA No. 04-334, is not enough to annul the election. Considering petitioners’ allegation of massive disenfranchisement of voters wherein legitimate voters were simply ordered to affix their signatures and thumbprints, we agree with public respondent that petitioners should have presented the affidavits of the alleged disenfranchised voters from the subject four (4) municipalities, but they did not.Grounds raised proper for election contestHassan [80] and Basher [81] do not apply to the instant case. Unlike in these cases, there was sufficient notice to the political parties, candidates, and voters regarding the clustering of precincts and transfer of polling places. Moreover, the election proceeded as scheduled, and none of the extreme irregularities that marred the elections in Hassan and Basher were present. In Banaga, [82] we reiterated the rule that there is failure of election only if the will of the electorate is muted and cannot be ascertained. [83] If the will of the people is determinable, the same must be respected as much as possible. [84] In the instant case, the will of the people was evident as the PBC duly proclaimed the winning candidates. As aptly ruled by respondent COMELEC, petitioners should have filed an election protest to substantiate their allegations of election anomalies, not a petition to declare a failure of election.Therefore, we find no abuse of discretion, much less grave abuse, committed by the COMELEC en banc in dismissing the Petitions for Declaration of Failure of Election for lack of merit.Anent the second issue raised on "whether or not the proclamation of the respondents, albeit patently null and void, bars the filing of the instant petitions for declaration of failure of election," we find that this matter is already moot as a non-issue, as due course was given to the instant petitions even if the annulment of the proclamation of respondent Loong through the June 21, 2004 COMELEC First Division Order was set aside and superseded by March 18, 2005 Order dismissing the appeal of petitioner Tan in SPA Nos. 04-163, 04-164, and 04-165.G.R. No. 166891First Issue: Timeliness of election protestDistinction between electoral protests filed under

Sections 248 and 258 of the Omnibus Election CodeMoving to the issues raised in the second petition (G.R. No. 166891), we note that while petitioner Loong doubtlessly concedes the original jurisdiction of COMELEC over election protests involving provincial officials, among others, he excepts, at the first instance, to its assumption of jurisdiction over such contest which, to him, was filed after the reglementary period.Section 250 of the Omnibus Election Code [85] under which the petitioner anchors his case provides as follows:Section 250. Election contests for Batasang Pambansa, regional, provincial and city offices. – A sworn petition contesting the election of … any regional, provincial or city official shall be filed with the Commission by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten days after the proclamation of the results of the election. (Underscoring added)The complementing Section 1, Rule 20 of the COMELEC Rules of Procedure practically says the same thing.The petitioner’s formulation of his basic submission and the premises holding it together run as follows: The PBOC of Sulu proclaimed the results of the gubernatorial election, or, in fine, declared him as the duly elected governor of Sulu, on May 24, 2004. Accordingly, a protest contesting his election ought to have been filed on or before June 3, 2004 or ten (10) days from May 24, 2004. A belated protest, as what private respondent Jikiri filed on July 19, 2004 or a little over fifty (50) days after the proclamation, effectively deprived the COMELEC of jurisdiction to entertain the said protest. According to petitioner, the COMELEC First Division acted without jurisdiction or with grave abuse of discretion when it nonetheless entertained respondent Jikiri’s election protest filed beyond the reglementary 10-day period.Petitioner’s basic posture may be accorded plausibility, except that it glossed over a statutory provision which, in the light of certain proceedings as thus narrated, militates against his stance. Under Section 248 of the Election Code, the filing of certain petitions works to stop the running of the reglementary period to file an election protest, thus:Section 248. Effect of filing petition to annul or to suspend the proclamation. – The filing with the Commission of a petition to annul or to suspend the proclamation of any candidate shall suspend the running of the period within which to file an election protest or quo warrantoproceedings.As may be noted, the aforequoted Section 248 contemplates two (2) points of reference, that is, pre- and post-proclamation, under which either of the petitions referred to therein is filed. Before the proclamation, what ought to be filed is a petition to "suspend" or stop an impending proclamation. After the proclamation, an adverse party should file a petition to "annul" or undo a proclamation made. Pre-proclamation controversies partake of the nature of petitions to suspend. The purpose for allowing pre-proclamation controversies, the filing of which is covered by the aforequoted Section 248 of the Omnibus Election Code, is to nip in the bud the occurrence of what, in election practice, is referred to as "grab the proclamation and prolong the protest" situation. [86]Correlating the petitions mentioned in Section 248 with the 10-day period set forth in the succeeding Section 250, a petition to suspend tolls the 10-day period for filing an election protest from running, while a petition to annul interrupts the running of the period. In other words, in aSection 248 petition to suspend where the 10-day period did not start to run at all, the filing of a Section 250 election contest after the tenth (10th) day from proclamation is not late. On the other hand, in a Section 248 petition to annul, the party seeking annulment must file the petition before the expiration of the 10-day period.Election protest case filed on timeIn the case at bench, the petitioner’s arguments on the belated filing of the respondent’s election protest may merit consideration had the petitions against him been only for the annulment of his May 24, 2004 proclamation. However, the numerous election-related petitions, which were filed against petitioner Loong by the other Sulu gubernatorial candidates, sought to suspend his then impending proclamation which, as turned out, was eventually made on May 24, 2004. And as events unfolded, some of the petitions adverted to resulted in the issuance on May 17, 2004 of an Order suspending the proclamation of the governor-elect of Sulu. [87] Petitioner Loong himself admitted as much: "x x x on May 17, 2004, the COMELEC Second Division issued an Order suspending the proclamation of the winning candidate for Governor of the province of Sulu." [88]

Not to be overlooked, because a corresponding position could have preceded it, is the June 21, 2004 Order of the COMELEC First Division annulling petitioner Loong’s proclamation as governor-elect. The fallo of said annulling order reads:In view of the foregoing but without prejudice to any resolution which would issue in disposition of the pending appeals and petitions involved in SPC 04-138, SPA No. 04-163, SPA No. 04-164 and SPA No. 04-165, [SPC instead of SPA should have been used] the Commission (FIRST DIVISION) hereby ANNULS the precipitate and premature proclamation of BENJAMIN LOONG as the winning candidate of governor of Sulu. [89]Upon the foregoing considerations, the filing of the election protest ad cautelam on July 19, 2004 or fifty-six (56) days after the May 24, 2004 proclamation was contextually on time. This is because the 10-day reglementary period to file such protest––which ordinarily would have expired on June 3, 2004––did not start to run at all. It cannot be over-emphasized that the pre-proclamation controversies Abdusakur Tan initiated right after the May 10, 2004 elections, that is, SPC Nos. 04-163, 04-164, and 04-165, were only resolved on March 18, 2005. We reproduce with approval what the public respondent said, respecting the denial of the motion to dismiss filed by petitioner Loong against the election protest of respondent Jikiri:Records show that there are still pre-proclamation cases pending before the Commission, the result of which could affect the protestee [petitioner Loong], to wit: SPC 04-163 (Abdusakur Tan vs. The Provincial Board of Canvassers of Sulu), SPC 04-164 (Abdusakur Tan vs. Provincial Board of Canvassers of Sulu) and SPC 04-165 (Abdusakur Tan vs. Provincial Board of Canvassers of Sulu). This situation distinguishes the instant case from that of Dagloc vs. COMELEC (321 SCRA 273) to which the protestee is anchoring his defense.It is likewise of no moment that the pre-proclamation cases were filed not by the protestant but by another candidate. Section 248 of the Omnibus Election Code does not require that the petition to annul or to suspend the proclamation be filed by the protestant. This liberal interpretation likewise sits well with our policy to forego with technicalities if they stand in the way of determining the true will of the people.That the cases are still pending with the Commission will not prevent the protestant from converting his election protest ad cautela into a regular one. Such conversion is an option which the protestant enjoys. Said fact likewise does not preclude us from deciding the election protest case. Pre-proclamation controversies and election protest cases have different causes of action. They can proceed independently.[90]Thus, the imputation of grave abuse of discretion, on the part of respondent COMELEC’s First Division, in refusing to dismiss respondent Jikiri’s Petition of Protest Ad Cautelam (EPC No. 2004-66) on the stated ground that he filed the same after the lapse of the period for filing an election protest is untenable.Rules prescribed to promote substantive justiceIt may be well to point out at this juncture that the rules on reglementary periods, perhaps, like any rule issued by judicial and quasi-judicial bodies, are prescribed to ensure stability in the administration of justice, as well as to promote substantive justice. Indeed, they should be disregarded when they pose obstruction to the attainment of such lofty ends, which, in election-related cases, as here, is the determination of the popular will. While the facts in Bince, Jr. v. COMELEC [91] are not on all fours similar, what we said therein is most apt:Assuming for the sake of argument that the petition was filed out of time, this incident alone will not thwart the proper determination and resolution of the instant case on substantial grounds. Adherence to a technicality that would put a stamp of validity on a palpably void proclamation, with the inevitable result of frustrating the people’s will cannot be countenanced. [92]Second Issue: Simultaneous prosecution ofpre-proclamation controversies and election protestsOn the last issue of the propriety of prosecuting simultaneously pre-proclamation controversies and an electoral protest, petitioner Loong holds the negative view, submitting, in gist, that an election contest should be put on hold until pre-proclamation controversies are concluded. He thus faults and goes on to ascribe grave abuse of discretion on the COMELEC First Division for holding otherwise, stating as follows:Clearly, the [ruling of the COMELEC First Division] is illogical and absurd. What will happen if the pre-proclamation appeals of … Tan are sustained and the defeated candidate … Tan is found to be the winner in his pre-

proclamation appeals? Obviously, the ruling of the COMELEC does not promote orderly procedure in the resolution of election cases. It promotes useless, unnecessary, and vexatious litigations. [93]As earlier stated, it is not legally possible for the COMELEC First Division to declare Jikiri the elected governor in the electoral protest filed against petitioner [Loong] and at the same time issue a decision in the pre-proclamation appeals of Abdusakur Tan that the latter is the elected governor. The grave abuse of discretion amounting to lack of jurisdiction is very obvious. [94]Petitioner Loong’s arguments, for all their easily-perceptible merit, are not anchored on any legal provision. They are common sensical to be sure. Nonetheless, laying grave abuse of discretion on the doorsteps of the respondent COMELEC First Division for giving due course to respondent Jikiri’s electoral protest without waiting for the final result of the pre-proclamation appeals is a different matter altogether.No rule or law prohibits simultaneous prosecutionFor one, there is no law or rule prohibiting the simultaneous prosecution or adjudication of pre-proclamation controversies and elections protests. Allowing the simultaneous prosecution scenario may be explained by the fact that pre-proclamation controversies and election protests differ in terms of the issues involved and the evidence admissible in each case [95] and the objective each seeks to achieve. Moreover, the Court, under certain circumstances, even encourages the reinforcement of a pre-proclamation suit with an election protest. As we held in Matalam v. Commission on Elections: [96]The Court agonized over its inability to fully look into the election irregularities alleged by petitioner, due to the very limited scope of pre-proclamation controversy. Thus, the Court reminds lawyers handling election cases to make a careful choice of remedies. Where it becomes apparent that a pre-proclamation suit is inadequate, they should immediately choose another timely remedy, like a petition to annul the election results or to declare a failure of elections or even an election protest, so that election irregularities may be fully ventilated and properly adjudicated by the competent tribunal. [97]Speedy disposition paramountFor another, simultaneous adjudications offer more practical features than piecemeal adjudications in expediting the resolution of cases. We must stress the importance of speedy disposition of election cases because a late decision, such as one that comes out when the term of office in dispute is about to expire, is a veritable useless scrap of paper. We reiterate what we said in Espidol v. COMELEC:It bears reiterating x x x that the COMELEC is with authority to annul any canvass and proclamation illegally made. The fact that a candidate illegally proclaimed has assumed office is not a bar to the exercise of such power. It is also true that as a general rule, the proper remedy after the proclamation of the winning candidate for the position contested would be to file a regular election protest or quo warranto. This rule, however, admits of exceptions and one of those is where the proclamation was null and void. In such a case, i.e., where the proclamation is null and void, the proclaimed candidate’s assumption of office cannot deprive the COMELEC of the power to declare such proclamation a nullity.The rationale therefor is aptly elucidated thus:We draw from past experience. A pattern of conduct observed in past elections has been the "pernicious grab-the-proclamation-prolong-the-protest-slogan of some candidates or parties." Really, where a victim of a proclamation to be precluded from challenging the validity thereof after that proclamation and the assumption of office thereunder, baneful effects may easily supervene. It may not be out of place to state that in the long history of election contests in this country, x x x successful contestant in an election protest often wins but "a mere pyrrhic victory, i.e., a vindication when the term of office is about to expire or has expired." Protests, counter-protests, revisions of ballots, appeals, dilatory tactics, may well frustrate the will of the electorate. And what if the protestant may not have the resources and an unwavering determination with which to sustain a long drawn-out election contest? In this context therefore all efforts should be strained – as far as is humanly possible – to take election returns out of the reach of the unscrupulous; and to prevent illegal or fraudulent proclamation from ripening into illegal assumption of office. [98]WHEREFORE, the instant petitions are DISMISSED for lack of merit. The assailed October 18, 2004 Joint Resolution of the Commission of Elections En Banc in SPA Nos. 04-334, 04-336, 04-337, 04-339, and 04-340 in G.R. Nos.

166143-47, as well as the assailed Orders of the Commission of Elections First Division in EPC No. 2004-66 dated December 14, 2004 and February 7, 2005 in G.R. No. 166891, are herebyAFFIRMED IN TOTO. Sections 3 and 4, Rule 18 of the COMELEC Rules of Procedure are hereby voided and declared unconstitutional for contravening Article IX-A, Section 7 of the 1987 Constitution. Costs against petitioners.SO ORDERED.

G.R. No. 106270-73 February 10, 1994SULTAN MOHAMAD L. MITMUG, petitioner, vs.COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF LUMBA-BAYABAO, LANAO DEL SUR, and DATU GAMBAI DAGALANGIT, respondents.Pimentel, Apostol, Layosa & Sibayan Law Office for petitioner.Brillantes, Nachura, Navarro & Arcilla for private respondent. BELLOSILLO, J.:The turnout of voters during the 11 May 1992 election in Lumba-Bayabao, Lanao del Sur, was abnormally low. As a result, several petitions were filed seeking the declaration of failure of election in precincts where less than 25% of the electorate managed to cast their votes. But a special election was ordered in precincts where no voting actually took place. The Commission on Elections (COMELEC) ruled that for as long as the precincts functioned and conducted actual voting during election day, low voter turnout would not justify a declaration of failure of election. We are now called upon to review this ruling.Petitioner SULTAN MOHAMAD L. MITMUG and private respondent DATU GAMBAI DAGALANGIT were among the candidates for the mayoralty position of Lumba-Bayabao during the 11 may 1992 election. There were sixty-seven (67) precincts in the municipality.As was heretofore stated, voter turnout was rather low, particularly in forty-nine (49) precincts where the average voter turnout was 22.26%, i.e., only 2,330 out of 9,830 registered voters therein cast their votes. Five (5) of these precincts did not conduct actual voting at all. 1

Consequently, COMELEC ordered the holding of a special election on 30 May 1992 in the five (5) precincts which failed to function during election day. On 30 July 1992 another special election was held for a sixth precinct. 2

In the interim, petitioner filed a petition seeking the annulment of the special election conducted on 30 May 1992 alleging various irregularities such as the alteration, tampering and substitution of ballots. But on 13 July 1992, COMELEC considered the petition moot since the votes in the subject precincts were already counted. 3

Other petitions seeking the declaration of failure of election in some or all precincts of Lumba-Bayabao were also filed with COMELEC by other mayoralty candidates, to wit:1. SPA No. 92-324: On 6 June 1992, private respondent Datu Gamba Dagalangit filed an urgent petition praying for the holding of a special election in Precinct No. 22-A alleging therein that when the ballot box was opened, ballots were already torn to pieces. On 14 July 1992, the petition was granted and a special election for Precinct No. 22-A was set for 25 July 1992. 4

2. SPC No. 92-336: On 16 June 19992, Datu Elias Abdusalam, another mayoralty candidate, filed a petition to declare failure of election in twenty-nine (29) more precincts as a result of alleged tampering of ballots  5 and clustering of precincts. 6 On 16 July 1992, the petition was dismissed. COMELEC ruled that there must be a situation where there is absolute inability to vote before a failure of election can be declared. 7 Since voting was actually conducted in the contested precincts, there was no basis for the petition.3. SPA No 92-368: On 20 June 1992, private respondent filed another petition, this time seeking to exclude from the counting the ballots cast in six (6) precincts on the ground that the integrity of the ballot boxes therein was violated. 8 Again, on 14 July 1992, COMELEC considered the petition moot, as the issue raised therein was related to that of SPA No. 92-311 which on 9 July 1992 was already set aside as moot. 9

4. SPA No. 92-347: On 1 July 1992, Datu Bagato Khalid Lonta, a fourth mayoralty candidate, filed a petition which in the main sought the declaration of failure of election in all sixty-seven (67) precincts of

Lumba-Bayabao, Lanao del Sur, on the ground of massive disenfranchisement of voters. 10 On 9 July 1992, COMELEC dismissed the petition, ruling that the allegations therein did not support a case of failure of election. 11

On 8 July 1992, petitioner filed a motion to intervene in these four (4) petitions. 12 But COMELEC treated the same as a motion for reconsideration and promptly denied it considering that under the COMELEC Rules of Procedure such motion was a prohibited pleading. 13

Thereafter, a new board of Election Inspectors was formed to conduct the special election set for 25 July 1992. Petitioner impugned the creation of this Board. Nevertheless, on 30 July 1992, the new Board convened and began the canvassing of votes. Finally, on 31 July 1992, private respondent was proclaimed the duly elected Mayor of Lumba-Bayabao, Lanao del Sur.On 3 August 1992, petitioner instituted the instant proceedings seeking the declaration of failure of election in forty-nine (49) precincts where less than a quarter of the electorate were able to cast their votes. He also prayed for the issuance of a temporary restraining order to enjoin private respondent from assuming office.On 10 August 1992, petitioner lodged an election protest with the Regional trial Court of Lanao del Sur disputing the result not only of some but all the precincts of Lumba-Bayabao, del Sur. 14

Respondents, on the other hand, assert that with the filing of an election protest, petitioner is already deemed to have abandoned the instant petition.It may be noted that when petitioner filed his election protest with the Regional Trial Court of Lanao del Sur, he informed the trial court of the pendency of these proceedings. Paragraph 3 of his protest states "[T]hat on August 3, 1992, your protestant filed a Petition for Certiorari with the Supreme Court . . . docketed as G.R. No. 106270 assailing the validity of the proclamation of the herein protestee. . . ." 15 Evidently, petitioner did not intend to abandon his recourse with this Court. On the contrary, he intended to pursue it. Where only an election protest ex abundante ad cautela is filed, the Court retains jurisdiction to hear the petition seeking to annul an election. 16

The main issue is whether respondent COMELEC acted with grave abuse of discretion amounting to lack of jurisdiction in denying motu proprio and without due notice and hearing the petitions seeking to declare a failure of election in some or all of the precincts in Lumba-Bayabao, Lanao del Sur. After all, petitioner argues, he has meritorious grounds in support thereto, viz., the massive disenfranchisement of voters due to alleged terrorism and unlawful clustering of precincts, which COMELEC should have at least heard before rendering its judgment.Incidentally, a petition to annul an election is not a pre-proclamation controversy. Consequently, the proclamation of a winning candidate together with his subsequent assumption of office is not an impediment to the prosecution of the case to its logical conclusion. 17

Under the COMELEC Rules of Procedure, within twenty-four (24) hours from the filing of a verified petition to declare a failure to elect, notices to all interested parties indicating therein the date of hearing should be served through the fastest means available. 18 The hearing of the case will also be summary in nature. 19

Based on the foregoing, the clear intent of the law is that a petition of this nature must be acted upon with dispatch only after hearing thereon shall have been conducted. Since COMELEC denied the other petitions 20 which sought to include forty-three (43) more precincts in a special election without conducting any hearing, it would appear then that there indeed might have been grave abuse of discretion in denying the petitions.However, a closer examination of the COMELEC Rules of Procedure, particularly Sec. 2, Rule 26, thereof which was lifted from Sec. 6, B.P. 881, otherwise known as the Omnibus Election Code of the Philippines, indicates otherwise. It reads —Sec. 2. Failure of election. — If, on account of force majeure, violence, terrorism, fraud or other analogous causes the election in any precinct has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody of canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close

to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty (30) days after the cessation of the cause of such postponement or suspension of the election or failure to elect.Before COMELEC can act on a verified petition seeking to declare a failure of election, two (2) conditions must concur: first, no voting has taken place in the precinct or precincts on the date fixed by law or, even if there was voting, the election nevertheless results in failure to elect; and, second, the votes not cast would affect the result of the election. 21

In the case before us, it is indubitable that the votes not cast will definitely affect the outcome of the election. But, the first requisite is missing, i.e., that no actual voting took place, or even if there is, the results thereon will be tantamount to a failure to elect. Since actual voting and election by the registered voters in the questioned precincts have taken place, the results thereof cannot be disregarded and excluded. 22 COMELEC therefore did not commit any abuse of discretion, much less grave, in denying the petitions outright. There was no basis for the petitions since the facts alleged therein did not constitute sufficient grounds to warrant the relief sought. For, the language of the law expressly requires the concurrence of these conditions to justify the calling of a special election. 23

Indeed, the fact that a verified petition is filed does not automatically mean that a hearing on the case will be held before COMELEC will act on it. The verified petition must still show on its face that the conditions to declare a failure to elect are present. In the absence thereof, the petition must be denied outright.Considering that there is no concurrence of the two (2) conditions in the petitions seeking to declare failure of election in forty-three (43) more, precincts, there is no more need to receive evidence on alleged election irregularities.Instead, the question of whether there have been terrorism and other irregularities is better ventilated in an election contest. These irregularities may not as a rule be invoked to declare a failure of election and to disenfranchise the electorate through the misdeeds of a relative few. 24 Otherwise, elections will never be carried out with the resultant disenfranchisement of innocent voters as losers will always cry fraud and terrorism.There can be failure of election in a political unit only if the will of the majority has been defiled and cannot be ascertained. But, if it can be determined, it must be accorded respect. After all, there is no provision in our election laws which requires that a majority of registered voters must cast their votes. All the law requires is that a winning candidate must be elected by a plurality of valid votes, regardless of the actual number of ballots cast. 25 Thus, even if less than 25% of the electorate in the questioned precincts cast their votes, the same must still be respected. There is prima facie showing that private respondent was elected through a plurality of valid votes of a valid constituency.WHEREFORE, there being no grave abuse of discretion, the Petition for Certiorari is DISMISSED.SO ORDERED.

[G.R. No. 134696. July 31, 2000]TOMAS T. BANAGA, JR., Petitioner, vs. COMMISSION ON ELECTIONS and FLORENCIO M. BERNABE, JR.,Respondents.D E C I S I O NQUISUMBING, J.: chanroblesvirtuallawlibraryThis special civil action for certiorari seeks to annul the en banc resolution of public respondent Commission on Elections promulgated on June 29, 1998, in a COMELEC special action case, SPA No. 98-383. chanroblesvirtuallawlibraryThe factual antecedents of this case are as follows: chanroblesvirtuallawlibraryPetitioner and private respondent were the candidates for vice-mayor of the City of Paraaque in the May 11, 1998 election. On May 19, 1998, the city board of canvassers proclaimed private respondent, Florencio M. Bernabe, Jr., the winner for having garnered a total of Seventy One Thousand Nine Hundred Seventy Seven (71,977) votes of the total votes cast for the vice-mayoralty position. On the other hand, Petitioner, Tomas T. Banaga, Jr., received the second highest number of votes for the said position, with Sixty Eight Thousand Nine Hundred Seventy

(68,970) of the total votes cast. Thus, the difference between the votes received by the private respondent and the petitioner is three thousand seven (3,007) votes. chanroblesvirtuallawlibraryDissatisfied, petitioner filed with the COMELEC on May 29, 1998, an action denominated as Petition to Declare Failure of Elections and/or For Annulment of Elections,[1] alleging that: chanroblesvirtuallawlibrary3. xxx the local elections for the office of Vice-Mayor in the City of Paraaque, Metro Manila, held on 11 May 1998, amounts to a denigration of the expression of the true will of the people, as it was tainted with widespread election anomalies which constitutes election fraud. The local elections for the position of Vice-Mayor in the City of Paraaque, Metro Manila, was replete with election offenses, specifically vote buying and flying voters being allowed to vote. Moreover, during the canvassing of votes before the Board of Canvasser, numerous Election Returns were discovered to contain glaring discrepancies and are replete with blatant omissions, not to mention the fact that numerous election returns appeared to be tampered with. All told, it is readily apparent that the portion of the Election Returns pertaining to the position of Vice-Mayor in the City of Paraaque, appear to be altered, falsified or fabricated. chanroblesvirtuallawlibrary4. The will of the legitimate voters of the City of Paraaque were denigrated during the 11 May 1998 election as a consequence of the fact that an indeterminable number of flying voters were allowed to vote.xxx chanroblesvirtuallawlibrary5. The 11 May 1998 elections for local officials in the City of Paraaque has likewise been marred by massive vote buying. To cite but one example, in Precinct Nos. 111-112 at the Tambo Elementary School in the City of Paraaque, a certain Dennis Sambilay Agayan (Agayan) was arrested for voting in substitution of registered voter Ramon Vizcarra. Agayan admitted before SPO1 Alberto V. Parena that he was paid One Hundred Fifty Pesos (P150.00) to vote at precincts No. 111-112 and use the name Ramon Vizcarra. As proof of the foregoing, attached hereto as Annex E is the Information dated 11 May 1998 filed against Agayan. chanroblesvirtuallawlibraryThe magnitude of the vote buying in the 11 May 1998 local elections in the City of Paraaque, is such that the voters involved number in the thousands. Evidence in this regard shall be presented in the proper time. chanroblesvirtuallawlibrary6. Also, there have been several instances where purported voters were depositing more than one (1) ballot inside the ballot box. As evidence thereof, attached hereto as Annex F is the Affidavit of a certain Rosemarie Pascua of Barangay Baclaran, City of Paraaque. chanroblesvirtuallawlibrary7. The foregoing incidents alone actually suffices to establish that a failure of elections should be declared on the ground that the will of the electorate of the City of Paraaque has been denigrated. The elections for the office of the Vice-Mayor in the City of Paraaque, on 11 May 1998 cannot be considered as reflective of the true will of the electorate. However, the anomalies do not stop there. chanroblesvirtuallawlibrary8. In addition to the foregoing, during the canvassing of votes before the Board of Canvassers, it was discovered that numerous election returns contain glaring discrepancies and are replete with blatant omissions, not to mention the fact that several election returns appeared to be tampered with or appear to be fabricated. The Honorable Commission should seriously consider these anomalies specially on account of the fact that the lead of the respondent over the petitioner is a mere Three Thousand Seven (3,007) votes.xxx chanroblesvirtuallawlibrary9. Moreover, several Election Returns are found to have glaring discrepancies which may materially alter the results of the election for the office of Vice-Mayor in the City of Paraaque.xxx chanroblesvirtuallawlibrary10. Finally, what seriously casts doubt on the legitimacy of the elections for the office of the Vice-Mayor in the City of Paraaque is the fact that the results thereof are statistically improbable. A case in point is precinct number 483 where petitioner shockingly is supposed to have received zero (0) votes. Petitioner is the incumbent Vice-Mayor of the City of Paraaque. It is, thus, impossible that he will receive zero (0) votes in any given precinct.[2] chanroblesvirtuallawlibraryPetitioner asked the COMELEC for the following reliefs: chanroblesvirtuallawlibrary1. After trial, judgment be rendered as follows: chanroblesvirtuallawlibrary

1.1 Declaring a failure of elections, or declaring the annulment of the elections, for the office of the Vice-Mayor in the City of Paraaque, Metro Manila; chanroblesvirtuallawlibrary1.2. Annulling the proclamation of the respondent as the elected Vice-Mayor of the City of Paraaque, Metro Manila, during the 11 May 1998 elections; and chanroblesvirtuallawlibrary1.3. Declaring that special elections should be held for the office of Vice-Mayor in the City of Paraaque, Metro Manila.chanroblesvirtuallawlibrary2. Alternatively, in the remote event that the Honorable Commission does not render judgment as aforesaid, an order be issued to the Treasurer of the City of Paraaque to bring and present before this Honorable Commission on or before the day of the hearing of the Election Protest, the ballot boxes, copies of the registry lists, election returns, the minutes of election in all precincts, and the other documents used in the local elections for the Office of the Vice-Mayor held on 11 May 1998 in the said City, for the Honorable Commission to re-examine and revise the same; andchanroblesvirtuallawlibrary3. After due trial judgment be rendered as follows: chanroblesvirtuallawlibrary3.1. The election of respondent FLORENCIO M. BERNABE, JR., for the office of Vice-Mayor in the City of Paraaque, Metro Manila be annulled; chanroblesvirtuallawlibrary3.2. The petitioner, TOMAS T. BANAGA, JR., be adjudged as the duly elected Vice-Mayor in the City of Paraaque, during the 11 May 1998 local elections; and chanroblesvirtuallawlibrary3.3. The expenses, costs and damages incurred in these proceedings be assessed against the respondent. chanroblesvirtuallawlibraryOther just and equitable reliefs are likewise prayed for.[3] chanroblesvirtuallawlibraryOn June 29, 1998, the COMELEC dismissed petitioners suit. It held that the grounds relied upon by petitioner do not fall under any of the instances enumerated in Section 6 of the Omnibus Election Code. The election tribunal concluded that based on the allegations of the petition, it is clear that an election took place and that it did not result in a failure to elect.[4] chanroblesvirtuallawlibraryConsidering that a motion for reconsideration of a COMELEC en banc ruling is prohibited, except in a case involving an election offense,[5] and aggrieved by the COMELECs dismissal of his suit, petitioner timely filed the instant petition for certiorari with this Court. chanroblesvirtuallawlibraryBefore us, petitioner now claims that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction when it dismissed his petition motu propio without any basis whatsoever and without giving him the benefit of a hearing. He contends that:I chanroblesvirtuallawlibraryTHE PETITION DATED 28 MAY 1998 IS ESSENTIALLY AN ELECTION PROTEST. HENCE, THE COMELEC COULD NOT LEGALLY DISMISS THE ENTIRE PETITION MERELY ON THE GROUND THAT THERE WAS ALLEGEDLY NO FAILURE OF ELECTION IN THE CITY OF PARANAQUE DURING THE 11 MAY 1998 ELECTIONS.II chanroblesvirtuallawlibraryTHE AUTHORITY RELIED UPON BY THE COMELEC AS BASIS FOR THE DISMISSAL OF THE PETITION DATED 28 MAY 1998, THAT OF EDWIN SAR[D]EA, ET. AL. V. COMELEC, ET. AL., AND MITMUG V. COMELEC, ARE NOT APPLICABLE TO THE CASE AT BAR CONSIDERING THAT ASIDE FROM BEING AN ELECTION PROTEST, THE SAID PETITION SEEKS THE ANNULMENT OF AN ELECTION PURSUANT TO THE DOCTRINE LAID DOWN BY THE HONORABLE SUPREME COURT IN LOONG V. COMELEC.[6] chanroblesvirtuallawlibraryClearly, the issue for our resolution is whether or not public respondent acted with grave abuse of discretion in dismissing petitioners petition, in the light of petitioners foregoing contentions. chanroblesvirtuallawlibraryWhile petitioner may have intended to institute an election protest by praying that said action may also be considered an election protest, in our view, petitioners action is a petition to declare a failure of elections or annul election results. It is not an election protest. chanroblesvirtuallawlibraryFirst, his petition before the COMELEC was instituted pursuant to Section 4 of Republic Act No. 7166 in relation to Section 6 of the Omnibus Election Code. Section 4 of RA 7166 refers to postponement, failure of election and special elections[7] while Section 6 of the Omnibus Election Code relates to failure of election. It is simply captioned asPetition to Declare Failure of Elections and/or For Annulment of Elections. chanroblesvirtuallawlibrary

Second, an election protest is an ordinary action while a petition to declare a failure of elections is a special action under the 1993 COMELEC Rules of Procedure as amended. An election protest is governed by Rule 20 on ordinary actions, while a petition to declare failure of elections is covered by Rule 26 under special actions. chanroblesvirtuallawlibraryIn this case, petitioner filed his petition as a special action and paid the corresponding fee therefor. Thus, the petition was docketed as SPA-98-383. This conforms to petitioners categorization of his petition as one to declare a failure of elections or annul election results. In contrast, an election protest is assigned a docket number starting with EPC, meaning election protest case. chanroblesvirtuallawlibraryThird, petitioner did not comply with the requirements for filing an election protest. He failed to pay the required filing fee and cash deposits for an election protest. Failure to pay filing fees will not vest the election tribunal jurisdiction over the case. Such procedural lapse on the part of a petitioner would clearly warrant the outright dismissal of his action. chanroblesvirtuallawlibraryFourth, an en banc decision of COMELEC in an ordinary action becomes final and executory after thirty (30) days from its promulgation, while an en banc decision in a special action becomes final and executory after five (5) days from promulgation, unless restrained by the Supreme Court.[8] For that reason, a petition cannot be treated as both an election protest and a petition to declare failure of elections. chanroblesvirtuallawlibraryFifth, the allegations in the petition decisively determine its nature. Petitioner alleged that the local elections for the office of vice-mayor in Paraaque City held on May 11, 1998, denigrates the true will of the people as it was marred with widespread anomalies on account of vote buying, flying voters and glaring discrepancies in the election returns. He averred that those incidents warrant the declaration of a failure of elections.[9] chanroblesvirtuallawlibraryGiven these circumstances, public respondent cannot be said to have gravely erred in treating petitioners action as a petition to declare failure of elections or to annul election results. chanroblesvirtuallawlibraryThe COMELECs authority to declare a failure of elections is provided in our election laws. Section 4 of RA 7166 provides that the COMELEC sitting en banc by a majority vote of its members may decide, among others, the declaration of failure of election and the calling of special election as provided in Section 6 of the Omnibus Election Code. Said Section 6, in turn, provides as follows: chanroblesvirtuallawlibrarySection 6. Failure of Elections. --- If, on account of force majeure, violence, terrorism, fraud or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect. chanroblesvirtuallawlibraryThere are three instances where a failure of election may be declared, namely, (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous causes; (b) the election in any polling place has been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud or other analogous causes; or (c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud or other analogous causes. In these instances, there is a resulting failure to elect. This is obvious in the first two scenarios, where the election was not held and where the election was suspended. As to the third scenario, where the preparation and the transmission of the election returns give rise to the consequence of failure to elect must as aforesaid, is interpreted to mean that nobody emerged as a winner.[10] chanroblesvirtuallawlibraryBefore the COMELEC can act on a verified petition seeking to declare a failure of election two conditions must concur, namely (1) no voting took place in the precinct or precincts on the date fixed by law, or even if there was

voting, the election resulted in a failure to elect; and (2) the votes not cast would have affected the result of the election.[11]Note that the cause of such failure of election could only be any of the following: force majeure, violence, terrorism, fraud or other analogous causes. chanroblesvirtuallawlibraryWe have painstakingly examined the petition filed by petitioner Banaga before the COMELEC. But we found that petitioner did not allege at all that elections were either not held or suspended. Neither did he aver that although there was voting, nobody was elected. On the contrary, he conceded that an election took place for the office of vice-mayor of Paraaque City, and that private respondent was, in fact, proclaimed elected to that post. While petitioner contends that the election was tainted with widespread anomalies, it must be noted that to warrant a declaration of failure of election the commission of fraud must be such that it prevented or suspended the holding of an election, or marred fatally the preparation and transmission, custody and canvass of the election returns. These essential facts ought to have been alleged clearly by the petitioner below, but he did not. chanroblesvirtuallawlibraryIn Mitmug vs. COMELEC,[12] petitioner instituted with the COMELEC an action to declare failure of election in forty-nine precincts where less than a quarter of the electorate were able to cast their votes. He also lodged an election protest with the Regional Trial Court disputing the result of the election in all precincts in his municipality. The COMELEC denied motu propio and without due notice and hearing the petition to declare failure of election despite petitioners argument that he has meritorious grounds in support thereto, that is, massive disenfranchisement of voters due to terrorism. On review, we ruled that the COMELEC did not gravely abuse its discretion in denying the petition. It was not proven that no actual voting took place. Neither was it shown that even if there was voting, the results thereon would be tantamount to failure to elect. Considering that there is no concurrence of the conditions seeking to declare failure of election, there is no longer need to receive evidence on alleged election irregularities.chanroblesvirtuallawlibraryIn Sardea vs. COMELEC,[13] all election materials and paraphernalia with the municipal board of canvassers were destroyed by the sympathizers of the losing mayoralty candidate. The board then decided to use the copies of election returns furnished to the municipal trial court. Petitioner therein filed a petition to stop the proceedings of the board of canvassers on the ground that it had no authority to use said election returns obtained from the municipal trial court. The petition was denied. Next, he filed a petition assailing the composition of the board of canvassers. Despite that petition, the board of canvassers proclaimed the winning candidates. Later on, petitioner filed a petition to declare a failure of election alleging that the attendant facts would justify declaration of such failure. On review, we ruled that petitioners first two actions involved pre-proclamation controversies which can no longer be entertained after the winning candidates have been proclaimed. Regarding the petition to declare a failure of election, we held that the destruction and loss of copies of election returns intended for the municipal board of canvassers on account of violence is not one of the causes that would warrant the declaration of failure of election. The reason is that voting actually took place as scheduled and other valid election returns still existed. Moreover, the destruction or loss did not affect the result of the election. We also declared that there is failure of elections only when the will of the electorate has been muted and cannot be ascertained. If the will of the people is determinable, the same must as far as possible be respected. chanroblesvirtuallawlibraryThese aforecited cases are instructive in the resolution of the present case because they involve similar actions and issues. No error could be attributed to public respondent for its reliance on these precedents. chanroblesvirtuallawlibraryIn Loong vs. Comelec,[14] the petition for annulment of election results or to declare failure of elections in Parang, Sulu, on the ground of statistical improbability and massive fraud was granted by the COMELEC.[15] Even before the technical examination of election documents was conducted, the COMELEC already observed badges of fraud just by looking at the election results in Parang. Nevertheless, the COMELEC dismissed the petition for annulment of election results or to declare failure of elections in the municipalities of Tapul, Panglima Estino, Pata, Siasi and Kalinggalang Calauag. The COMELEC dismissed the latter action on ground of untimeliness of the petition, despite a finding that the same badges of fraud evident from the results of the election based on the certificates of canvass of votes in Parang, are also evident in the election results of the five mentioned municipalities. We ruled that COMELEC committed grave abuse of discretion in dismissing the petition as there is no law which provides for

a reglementary period to file annulment of elections when there is yet no proclamation. The election resulted in a failure to elect on account of fraud. Accordingly, we ordered the COMELEC to reinstate the aforesaid petition. Those circumstances, however, are not present in this case, so that reliance on Loong by petitioner Banaga is misplaced. chanroblesvirtuallawlibraryPetitioner argues that the COMELEC should not have treated his prayer for annulment of elections as a prayer for declaration of failure of elections.[16] This argument is plainly gratuitous as well as immaterial. A prayer to declare failure of elections and a prayer to annul the election results for vice mayor in this case are actually of the same nature. Whether an action is for declaration of failure of elections or for annulment of election results, based on allegations of fraud, terrorism, violence or analogous cause, the Omnibus Election Code denominates them similarly.[17] No positive gain will accrue to petitioners cause by making a distinction without a difference. chanroblesvirtuallawlibraryFinally, petitioner claims that public respondent gravely abused its discretion when it dismissed his petition motu propio. However, the fact that a verified petition has been filed does not mean that a hearing on the case should first be held before COMELEC can act on it. The petition to declare a failure of election and/or to annul election results must show on its face that the conditions necessary to declare a failure to elect are present. In their absence, the petition must be denied outright.[18] Public respondent had no recourse but to dismiss petition. Nor may petitioner now complain of denial of due process, on this score, for his failure to properly file an election protest. The COMELEC can only rule on what was filed before it. It committed no grave abuse of discretion in dismissing his petition to declare failure of elections and/or for annulment of elections for being groundless, hence without merit. chanroblesvirtuallawlibraryWHEREFORE, the instant petition is DISMISSED. The assailed RESOLUTION of public respondent is AFFIRMED. Costs against petitioner. chanroblesvirtuallawlibrarySO ORDERED. chanroblesvirtuallawlibrary

G.R. No. 164225 April 19, 2006JUHARY A. GALO, Petitioner, vs.THE COMMISSION ON ELECTIONS, THE MUNICIPAL BOARD OF CANVASSERS OF LUMBA-BAYABAO, LANAO DEL SUR, and MINDA DAGALANGIT, Respondents.D E C I S I O NSANDOVAL-GUTIERREZ, J.:Before us for resolution is the Petition1 for Certiorari,2 assailing the Resolution3 dated July 2, 2004 of the Commission on Elections(COMELEC) En Banc in SPA No. 04-348.Juhary A. Galo, petitioner, and Minda P. Dagalangit, private respondent, were among the five candidates for mayor in the Municipality of Lumba-Bayabao, Lanao del Sur in the May 10, 2004 national and local elections.On May 10, 2004, however, there was a failure of election in Lumba-Bayabao due to serious disagreements among the various local candidates involving the clustering of precincts, the distribution of election paraphernalia, and the appointment of the members of the various Boards of Election Inspectors. As a consequence, the COMELEC scheduled and held a special election on May 12, 2004.On May 19, 2004, petitioner Galo filed with the COMELEC En Banc a petition4 to declare a failure of election and to annul the results of the May 12, 2004 special election involving six precincts located in six Barangays of Lumba-Bayabao, namely: Precinct Nos. 1A (Barangay Maribu), 34A (Barangay Sunggod), 29B (Barangay Rumayas), 22A (Barangay Lubo Basara), 31A (Barangay Salaman), and 36A (Barangay Tamlang). Galo’s petition, docketed as SPA No. 04-348, is based on his claim that there were "serious and massive irregularities committed by the supporters of Dagalangit, in conspiracy with members of the Board of Election Inspectors." Specifically, petitioner alleged that respondent Dagalangit’s supporters succeeded in placing fake ballots inside a ballot box in Precinct No. 1A (Barangay Maribo); that in Precinct No. 34A (Barangay Sunggod), the voting was irregular because the election

inspectors hid a ballot box allegedly to protect it from being forcibly taken; that during the counting of votes, fake ballots were found in the ballot boxes in Precinct Nos. 22A (Barangay Lubo Basara), 29B (Barangay Rumayas), 31A (Barangay Salaman), 34A (Barangay Sunggod), and 36A (Barangay Tamlang); that the election inspectors in the said precincts refused to enter in the minutes their valid objections; that all the election returns accomplished based on the fake ballots do not reflect the true will of the electorate; and that the said irregularities justify the annulment of the election held. Petitioner thus prayed that the COMELEC issue a temporary restraining order (TRO) directing the Board of Canvassers to desist from canvassing the election returns from the said precincts. Petitioner further prayed that after due hearing, the results of the election be annulled; and that an immediate investigation of the anomalies committed during the election be conducted.On May 21, 2004, the COMELEC En Banc issued a TRO directing the Municipal Board of Canvassers of Lumba-Bayabao to SUSPEND its proceedings, particularly the proclamation of the winning candidates, until further orders.In her Answer dated May 24, 2004, respondent Dagalangit denied petitioner’s allegations of the existence of fake ballots in the specified precincts. She averred that during the May 12, 2004 special election, all the 39 precincts of Lumba-Bayabao functioned in an orderly and peaceful manner; that the ballots have been properly appreciated, counted and entered in the election returns duly accomplished by the Board of Election Inspectors under the close scrutiny of the candidates’ watchers; and that the use of fake ballots is not a valid ground for nullifying the elections. She then prayed that SPA No. 04-348 be dismissed.1avvphil.netDuring the May 27, 2004 hearing, petitioner did not appear before the COMELEC En Banc. Instead, he filed an "Urgent Ex-Parte Motion/Manifestation"5 stating that he was already proclaimed as the winning candidate on May 20, 2004, thereby rendering his petition "moot and academic;" and that he "has lost interest in the prosecution of the same." He prayed that his petition be considered withdrawn.Thereafter, pursuant to the order of the COMELEC En Banc, the contending parties filed their respective memoranda.On July 2, 2004, the COMELEC En Banc issued the assailed Resolution (1) dismissing the petition for lack of merit; (2) annulling petitioner’s proclamation on May 20, 1994 for having been "made surreptitiously and in contravention of the May 21, 2004 Order of the Commission;" and (3) ordering the Municipal Board of Canvassers of Lumba-Bayabao "to immediately convene, complete the canvass, and proclaim the winning candidates." The COMELEC En Banc held that pursuant to the Omnibus Election Code, the alleged use of fake ballots in the questioned precincts is not one of the grounds for nullifying the election results. In fact, all the 39 precincts of Lumba-Bayabao functioned during the May 12, 2004 special elections.On July 4, 2004, the Municipal Board of Canvassers of Lumba-Bayabao completed its canvass proceedings and proclaimed respondent Dagalangit as the winning candidate for mayor of that municipality.6

Petitioner now comes to this Court through the instant Petition for Certiorari alleging that the COMELEC, in issuing the challenged Resolution, acted with grave abuse of discretion amounting to lack or excess of jurisdiction.Respondents, in their respective Comments, vehemently opposed the petition and prayed that the same be dismissed for being utterly unmeritorious.The petition is bereft of merit.We cannot sustain petitioner’s contention that the COMELEC En Banc gravely abused its discretion in dismissing his petition for a declaration of a failure of elections and for the annulment of the election results. Section 6 of the Omnibus Election Code prescribes the conditions for such a declaration, thus:Section 6. Failure of Election – If, on account of force majeure, violence, terrorism, fraud or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for closing of the voting, or after the voting and during the preparation and the transmission of the returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of the verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the

cessation of the cause of such postponement or suspension of the election or failure to elect. (Underscoring supplied)In Tan v. COMELEC,7 we held that the above provisions lay down three instances where a failure of election may be declared, namely: (1) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous causes; (2) the election in any polling place has been suspended before the hour fixed by law for the closing of the voting on account of any of such causes; or (3) after the voting and during the preparation, transmission, custody or canvass of the election returns, the election results in a failure to elect on account of any of said aforementioned causes. In all instances, there must have been a failure to elect. This is obvious in the first two scenarios, where the election was not held and where the election was suspended. As to the third scenario, the circumstances attending the preparation, transmission, custody or canvass of the election returns cause a failure to elect. The term failure to elect means "nobody emerges as a winner."8

The established rule is that the nature of an action and the jurisdiction of the tribunal are determined by the law and the allegations in the petition regardless of whether or not the petitioner is entitled to the relief sought.9 Here, it is not disputed that all the 39 precincts in Lumba-Bayabao functioned in the May 12, 2004 special elections. And as correctly observed by respondent COMELEC En Banc, petitioner himself failed to allege in his petition that no election was conducted; and that the use of fake ballots is not a ground to declare a failure of elections.In Mitmug v. Commission on Elections,10 we further held that before the COMELEC can act on a verified petition seeking to declare a failure of election, two conditions must concur: first, no voting has taken place in the precinct or precincts on the date fixed by law or, even if there was voting, the election nevertheless results in a failure to elect; and, second, the votes cast would affect the result of the election. In the case at bar, both conditions are not present.Petitioner himself admits in his petition that during the special election, voting took place in the questioned precincts. He also failed to show that the votes cast would affect the results of the election.Petitioner also questions the COMELEC’s nullification of his proclamation on May 20, 2004 by the Municipal Board of Canvassers. We sustain the COMELEC En Banc’s action. As shown by the records, petitioner was proclaimed as mayor on the basis of the results of "the elections held on May 10, 2004."11 As stated earlier, no election was held on that day.In fine, the COMELEC, in issuing the assailed Resolution, did not act with grave abuse of discretion.WHEREFORE, the petition is DISMISSED. Costs against petitioner.SO ORDERED.

G.R. No. 134340 November 25, 1999LININDING PANGANDAMAN, petitioner, vs.COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF LANAO DEL SUR, MAHED MUTILAN, ALEEM, AMERRODIN SARANGANI and NARRA ABDUL JABBAR JIALIL, respondents. YNARES-SANTIAGO, J.:Recently, this Court emphatically stated that "[U]pholding the sovereignty of the people is what democracy is all about. When the sovereignty of the people expressed thru the ballot is at stake, it is not enough for this Court to make a statement but it should do everything to have that sovereignty obeyed by all. Well done is always better than well said." 1 Corollarily, laws and statutes governing election contests especially the appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities. 2 These standards will be the legal matrix within which this controversy will be adjudged.

Challenged in this petition for certiorari and prohibition with prayer for temporary restraining order and preliminary injunction is the Omnibus Order of the Commission on Elections (COMELEC) en banc dated July 14, 1998, 3 the dispositive portion of which reads as follows:WHEREFORE, premises considered, special elections for the municipalities, namelyButig LumbayabagueKapatagan Sultan DumalondongMaguing Sultan GumanderMasiu Marawi CityLumbabayabaoshall be held on 18 July 1998.Special elections shall also be held on July 25, 1998 for the municipalities ofGanassi LumbatanMalabang PagayawanMarantao TubaranThere shall be machine counting and consolidation of votes for all municipalities except Maguing and those precincts where ballots for manual count will be used.The Education and Information Department, the Acting PES of Lanao del Sur and the Election Officers in these municipalities are hereby directed to cause the immediate publication of this Omnibus Order in their respective municipality (sic).Schedule for special elections in the municipalities of Madalum and Tugaya is temporarily withheldpending unresolved issues before the Commission.Let the Executive Director for Operation[s] of the Commission execute this order with dispatch.SO ORDERED.The COMELEC's challenged Omnibus Order summarizes the relevant facts of the controversy thus:The instant cases were filed by petitioners praying that the Commission declare [a] failure of elections in their respective municipalities and to hold special elections thereafter. The petitions were reinforced by reports received by the Commission from its field officers and deputies. A pre-trial for all cases in Lanao del Sur involving failure of elections was set and parties, their counsels, and the election officers of concerned municipalities appeared.During the pre-trial of the above cases, it was shown and admitted by the parties that total failure of election[s] took place in the following municipalities:1. Butig 7. Maguing2. Kapatagan 8. Masiu3. Lumbatan 9. Sultan Dumalondong4. Lumba Bayabao 10. Sultan Gumander5. Lumbayanague 11. Tubaran6. Madalum 12. TugayaNo precinct in the above towns was able to function on election day.It was also shown and admitted by the parties that in the following municipalities, partial failure of election[s] took place as follows:1. Ganassi2. Malabang3. Marantao4. Pagayawan5. Marawi CityTOTAL FAILURE OF ELECTIONSIt was found that the cause of failure of election[s] in the twelve municipalities where there was total failure of election[s] as follows:

1. BUTIG — armed confrontation of opposing political groups and vehement disagreement on the clustering of precincts.+ Acting election officer reported that all election paraphernalia are available except for 200 ballots for precinct 5A.2. KAPATAGAN — allegedly, Camad Benito, husband of mayoralty candidate Bailo Benito, terrorized the Acting Municipal Treasurer Okuo Macaumbas thus preventing the distribution of ballots and other election paraphernalia to the members of the Board of Election Inspectors (BEIs for brevity). Similarly, there were only twenty two (22) public school teachers who were available as BEIs and eighteen (18) of them were disqualified to act due to relationship to candidates within the prohibited degree.In Election Case No. 571, the Municipal Circuit Trial Court of Kapatagan, Lanao del Sur issued an order dated April 30, 1998 ordering the Election Officer of Kapatagan, Lanao del Sur to delete, erase, and cancel all Voters Registration Records with serial numbers 3676001 to 3676500 after finding that said VRRs were received only on December 15, 1998 by EA Camal Calandada from Atty. Muslemin Tahir. And yet, said VRRs appeared to be filled up, used and dated 14 December 1997. A copy of said order was received on 10 May 1998 by the Election Officer. The court having found by implication that said VRRs were irregularly/unlawfully issued, and its order having become final, this Commission in compliance with said court order hereby orders the Election Officer of Kapatagan to delete from the records said VRRs with serial nos. from 36767001 to 3676500.Pursuant to said order, the Law Department is directed to conduct a joint investigation — administrative and preliminary investigation for election offenses — against Camal Calandada and Muslemin Tahir to determine their criminal and administrative liability and to submit to the Commission its findings and recommendation within sixty (60) days from receipt of this Order.The PNP, thru the Criminal Investigation Group in Region XII is similarly directed to initiate an investigation on the conduct of Camad Benito in contributing to the failure of election[s] in Kapatagan.+ All election paraphernalia are available.3. LUMBATAN — all the members of the different Board of Inspectors are disqualified to act as such by reason of relationship either by consanguinity or affinity, within the prohibited degree.+ All election paraphernalia for 39 precincts are intact and available.4. LUMBABAYABAO — candidates could not agree on the venue of the distribution of the election supplies and there was vehement disagreement on the clustering of precincts.+ All election paraphernalia for fifty nine (59) precincts are available.5. LUMBAYANAGUE — there was non-completion of the composition of the BEIs in all precincts because almost all appointed members of [the] BEI are disqualified by reason of relationship either by affinity or consanguinity, within the prohibitive degree.+ All election paraphernalia for the 35 precincts are available.6. MADALUM — the twenty (20) appointed teachers to act as members of the different BEIs did not arrive on election day.The issue on the existence of alleged ghost barangays/precincts is not yet resolved by the Commission considering that the alleged ghost precincts are being investigated and an ocular inspection is being made by an investigating team. The issue being factual and the findings determinative of a clean, honest and credible elections, it is the desire of the Commission that the issue on ghost precincts be resolved first before a special election in Madalum shall be scheduled.+ All election paraphernalia are available.7. MAGUING — no members of the different Boards of Election Inspectors arrived in all precincts.+ There is a need to print new ballots for all forty-nine (49) precincts and other election forms due to the inadvertent non inclusion of a candidate's name in the original ballots.8. MASIU — the Municipal Treasurer did not get the election paraphernalia from the Provincial Treasurer. Neither could the Municipal Treasurer be located on election day. Hence, there was nothing to distribute to the BEIs on election day. Similarly, the Acting Election Officer, EA Cayansalam Benaning, on her admission during the pre-trial hearing on June 25, 1998, arrived only at 7:00 A.M. of election day thus preventing the distribution of election

paraphernalia from her office. Some parties claim in fact that she was only seen at noontime of election day while she was in the house of the incumbent mayor of Masiu.+ All election paraphernalia for eighty (80) precincts are available.9. SULTAN DUMALONDONG — Municipal Treasurer did not appear on May 10 & 11, 1998 at the office of the Provincial Treasurer to receive the ballots and other election paraphernalia for distribution to the BEIs so there was no election supplies for distribution on election day.+ All election paraphernalia for 16 precincts are available.10. SULTAN GUMANDER — no BEIs appeared on election day because most of them are disqualified by law to act as such; the remaining 12 who are not disqualified also did not appear; there was also disagreement on the venue of distribution of election supplies.+ All election paraphernalia for 51 precincts are available.11. TUBARAN — non-appearance of all the members of the different BEIs due to intense rivalry among the opposing candidates.+ All election supplies are intact and available.12. TUGAYA — widespread terrorism causing intimidation of the electorate to cast their vote. The order of inclusion by the Municipal Court of Tugaya, covering 4,075 voters, will be the subject of a petition to declare its nullity to be filed by the Law Department of the Commission before the Regional Trial Court in Marawi City. It is the desire of the Commission to put to rest the issue on the controversy surrounding the 4,075 voters to allow honest election in this municipality. After the controversy is put to rest, then the special election shall be scheduled.PARTIAL FAILURE OF ELECTIONIn the following municipalities and City of Marawi, there was partial failure of election in the specified precincts due to the following reasons:1. GANASSI — members of the BEIs for nine precincts as herein below enumerated did not appear thus election supplies were not distributed on election day for the following precincts:Barangay Name Precinct No.1. Poblacion 1A21A3/1A42. Baya 8A3. Linuk 14A14A114A24. Macaguiling 18A18A118A2There was also failure of election in precinct 1A1 and 17A1 due to ballot box snatching. The ballot box containing official ballots and other election paraphernalia for precinct 17A1, Brgy. Macabao whose polling place was at Ganassi Central Elementary School was snatched allegedly by the incumbent mayor of Ganassi, Maning Diangka and his armed escorts.In precinct 2A in Brgy. Bagoingud, failure of election is declared and special election shall be held considering that the ballot box, official ballots and other election paraphernalia were illegally brought to a private dwelling in said barangay and voting irregularly took place therein despite the fact that the designated polling place was Gadungan Elementary School at Gadungan. This could not take place unless the BEIs assigned in Precinct 2A cooperated in these acts.The acts complained of against Ex-Mayor Maning Diangka shall be referred to the Provincial Prosecutor of Lanao del Sur for possible prosecution. Similarly, the Election Officer of Ganassi is directed to inform the Commission of the identity of the BEIs for precinct 2A for possible prosecution.Considering the charge of Maimona Diangka in SPA 98-404 that Baguio Macapodi, candidate for Vice Mayor of the Ompia Party and his cohort Bai Sa Ganassi terrorized registered voters in Precincts 32, 32A, 32A1, and 32A2 in

Barangay Taliogan, Ganassi and that they were allegedly aided by the Barangay Chairman therein, said acts shall be referred immediately to the office of the Provincial Prosecutor of Lanao del Sur for investigation.During the special election, the members of the Municipal Board of Canvassers of Ganassi are hereby directed to suspend the proclamation of Baguio Macapodi for vice mayor, if winning, until further orders from this Commission.+ All election paraphemalia for the nine (9) precincts where there was non-appearance of BEIs are available. The Commission shall cause the printing of ballots and other election forms for precincts 1A1 (Poblacion), 17A1 (Brgy. Macabao), and 2A (Brgy. Bagoingud) for use in the special election since the snatched ballot box were not recovered.2. MALABANG — twenty three (23) precincts failed to function due to shooting incidents. Ballot boxes containing election paraphernalia for five precincts out of these 23 precincts were snatched and never recovered. The following are the precincts that failed to function on election day or whose ballot boxes were snatched:Barangay Name Precinct No.1. Banday 4A22. Betayan 5A/5A13. BPS Billage 7A2/7A34. Bunkhouse < 8A15. Calumbog 11A/11A16. Campo Muslim < 12A27. Chinatown 13A8. -do- 13A49. Curahab 14A10. Diamaru 15A11. -do- 15A112. Matampay < 26A13. Pasir < 29A14. -do- 29A115. -do- 29A216. Sumbagarogong 33A17. -do- 33A118. Tacub < 34A19. Tiongcop 36A20. -do- 36A1/36A221. Tubok 37A222. -do- 37A523. -do- 37A6< ballot box snatched+ All election paraphernalia for eighteen precincts are intact and available. The Commission will cause the printing of 1,000 ballots and other election forms for five precincts (8A1, 12A2, 26A, 34A).3. MARANTAO — thirty-five (35) precincts failed to function due to terrorism in the area. Out of these 35, eight (8) precincts lost to armed groups their ballot boxes, ballots and other election paraphernalia. These eight are:Name of Barangay Precinct No.1. Daana Ingud Proper 3A2. -do- 3A1/3A23. Tuca Kialdan 7A4. -do- 7A15. Banga Pantar 22A/22A-16. Inudaran Campong 29A7. -do- 29A-2

8. Mapantao Goo 34A-2Ballots are to be printed for these precincts by the Commission. Canvassing forms and other paraphernalia shall also be provided. In Precincts No. 12A, 24A and 24A-1, ballots were cast but were not yet counted due to complaints that their integrity had been violated. There being no proof that the integrity of the ballots had been violated in these precincts, the members of the Municipal Board of Canvassers of Marantao are directed to include the same in the canvass.4. PAGAYAWAN — casting of votes was aborted due to widespread terrorism. Fifteen (15) precincts failed to function.+ All election paraphernalia are available. However, in precinct 5A/5A1, some commotion took place. Eleven voters out of two hundred and sixty-eight (268) have already cast their votes at the time but only one ballot was found inside the ballot box after the commotion. The Commission deems it proper that the casting of votes by the eleven voters be annulled and a special election shall be conducted therein.5. Marawi City — there was partial failure of election in sixteen precincts (16), namely —Name of Barangay Precinct No.1. Brgy. Banggolo 6A22. -do- 6A33. Brgy. Lilod Madaya 42A-44. Brgy. South Madaya 85A5. Brgy. Sangkai Dansalan 83A-36. Brgy. Raya Madaya I 74A-67. Brgy. Bacolod Chico 3A8. -do- 3A-19. -do- 3A-210. Brgy. Raya Saduc 76A11. Brgy. Guimba 38A12. -do- 38A-1/38A-213. Brgy. Lolod Saduc 73A-514. Brgy. Bangco 5A-5A-115. Brgy. Timbangalan 88A16. -do- 88A-1/88A-2due to non-appearance of the BEIs. All election paraphernalia are in order and available except for one ballot box intended for Precinct 5A/5A-1 in Brgy. Banco which is missing or undelivered or without ballots contained therein.The petition for declaration of failure of election in the municipality of Calanogas, Lanao del Sur will be covered by a different resolution.To avoid the risk of another failure of elections and to encourage public trust in the process and results of the special elections, the following changes shall be undertaken:a. Only elements of the Armed Forces of the Philippines and the Philippine National Police who are assigned to the affected areas shall serve as members of the Board of Election Inspectors (BEIs). The Acting Provincial Election Supervisor (PES) of Lanao del Sur, Atty. Suharto Ambolodto, shall ensure that said BEIs are given adequate briefing for this task;Considering that under-aged persons succeeded in registering voters, a complaint that is common in many areas in Lanao del Sur, the BEIs are given explicit authority to prevent from voting all those registered voters who are visibly under-aged and shall reflect their names and VRR numbers in the Minutes of Voting for future prosecution.For this purpose, all poll watchers are encouraged to provide themselves with camera and provide indubitable proof of under-aged voters.b. Election officers from areas outside of Lanao del Sur shall be tapped to act as Election Officers, while the regular election officers in Lanao del Sur shall perform such duties as directed by the Acting PES;

c. The special election in the municipality of Madalum shall be scheduled only after the Investigating Team aforementioned has finished its investigation of alleged ghost precincts therein and the Commission has acted on their findings of facts and recommendation(s);d. The special election in the municipality of Tugaya shall be scheduled after the controversy on the four thousand and seventy-five (4,075) voters shall have been settled;e. Considering the complaints received by the Commission against certain actuations of the Provincial Board of Canvassers, the same shall be replaced with a new Provincial Board of Canvassers whose members shall be designated by the Commission;f. The PNP, thru the Criminal Investigation Group in Region XII and the Prosecution Offices in Lanao del Sur shall actively help in the filing of criminal complaint for election offenses committed during the election period.Petitioner asserts that the COMELEC acted with grave abuse of discretion amounting to lack of jurisdiction in issuing the assailed Omnibus Order —1.] By insisting on holding special elections on July 18 and 25, 1998 more than thirty (30) days after the failure to elect, in certain municipalities, in contravention of the clear and explicit provisions of Section 6 of the Omnibus Election Code;2.] By failing to declare a total failure of elections in the entire province of Lanao del Sur and to certify the same to the President of the Philippines and Congress so that the necessary legislation may be enacted for the holding of a special election;3.] By ordering only elements of the Armed Forces of the Philippines and the Philippine National Police who are not assigned to the affected areas as members of the Board of Election Inspectors, in contravention of Sections 166, 170, 175 and 176 of the Omnibus Election Code;4.] By insisting on machine counting despite the proven unreliability and undependability of the counting of votes with use of computer machines.In support of his cause, petitioner insists on a strict compliance with the holding of special elections not later than thirty (30) days after failure to elect pursuant to Section 6 of the Omnibus Election Code which provides that:Sec. 6. Failure of elections. — If, on account of force majeure, violence, terrorism, fraud or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect.Petitioner argues that the above-quoted provision is mandatory because of the word "shall". He further asserts that the prescribed time frame actually "delimits" COMELEC's authority to call for a special election and that instead, the power to call for a special election after the 30th day now resides in Congress.The provision invoked can not be construed in the manner as argued by petitioner for it would defeat the purpose and spirit for which the law was enacted.It is a basic precept in statutory construction that a statute should be interpreted in harmony with the Constitution and that the spirit, rather than the letter of the law determines its construction; for that reason, a statute must be read according to its spirit and intent. 4 Thus, a too literal interpretation of the law that would lead to absurdity prompted this Court to —. . . [a]dmonish against a too-literal reading of the law as this is apt to constrict rather than fulfill its purpose and defeat the intention of its authors. That intention is usually found not in "the letter that killeth but in the spirit that vivifieth" . . . 5

Sec. 2 (1) of Article IX (C) of the Constitution gives the COMELEC the broad power to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite initiative, referendum and recall." There can hardly be any doubt that the text and intent of this constitutional provision is to give COMELEC all the necessary

and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful and credible elections.Pursuant to this intent, this Court has been liberal in defining the parameters of the COMELEC's powers in conducting elections. As stated in the old but nevertheless still very much applicable case of Sumulong v.COMELEC: 6

Politics is a practical matter, and political questions must be dealt with realistically — not from the standpoint of pure theory. The Commission on Elections, because of its fact-finding facilities, its contacts with political strategists, and its knowledge derived from actual experience in dealing with political controversies, is in a peculiarly advantageous position to decide complex political questions . . . . There are no ready made formulas for solving public problems. Time and experience are necessary to evolve patterns that will serve the ends of good government. In the matter of the administration of laws relative to the conduct of election . . . we must not by any excessive zeal take away from the Commission on Elections that initiative which by constitutional and legal mandates properly belongs to it.More pointedly, this Court recently stated in Tupay Loong v. COMELEC, et al., 7 that "[O]ur elections are not conducted under laboratory conditions. In running for public offices, candidates do not follow the rules of Emily Post. Too often, COMELEC has to make snap judgments to meet unforeseen circumstances that threaten to subvert the will of our voters. In the process, the actions of COMELEC may not be impeccable, indeed, may even be debatable. We cannot, however, engage in a swivel chair criticism of these actions often taken under very difficult circumstances."The purpose of the governing statutes on the conduct of elections —. . . [i]s to protect the integrity of elections to suppress all evils that may violate its purity and defeat the will of the voters. The purity of the elections is one of the most fundamental requisites of popular government. The Commission on Elections, by constitutional mandate, must do everything in its power to secure a fair and honest canvass of the votes cast in the elections. In the performance of its duties, the Commission must be given a considerable latitude in adopting means and methods that will insure the accomplishment of the great objective for which it was created — to promote free, orderly, and honest elections. The choice of means taken by the Commission on Elections, unless they are clearly illegal or constitute grave abuse of discretion, should not be interfered with. 8

Guided by the above-quoted pronouncement, the legal compass from which the COMELEC should take its bearings in acting upon election controversies is the principle that "clean elections control the appropriateness of the remedy." 9

In fixing the date for special elections the COMELEC should see to it that: 1.] it should not be later than thirty (30) days after the cessation of the cause of the postponement or suspension of the election or the failure to elect; and, 2.] it should be reasonably close to the date of the election not held, suspended or which resulted in the failure to elect. The first involves a question of fact. The second must be determined in the light of the peculiar circumstances of a case. 10 Thus, the holding of elections within the next few months from the cessation of the cause of the postponement, suspension or failure to elect may still be considered "reasonably close to the date of the election not held." 11

In this case, the COMELEC can hardly be faulted for tardiness. The dates set for the special elections were actually the nearest dates from the time total/partial failure of elections was determined, which date fell on July 14, 1998, the date of promulgation of the challenged Omnibus Order. Needless to state, July 18 and 25, the dates chosen by the COMELEC for the holding of special elections were only a few days away from the time a total/partial failure of elections was declared and, thus, these were "dates reasonably close" thereto, given the prevailing facts herein. Furthermore, it bears stressing that in the exercise of the plenitude of its powers to protect the integrity of elections, the COMELEC should not and must not be straitjacketed by procedural rules in the exercise of its discretion to resolve election disputes. 12

Petitioner's argument that respondent COMELEC gravely abused its discretion by failing to declare a total failure of elections in the entire province of Lanao del Sur and to certify the same to the President and Congress so that the necessary legislation may be enacted for the holding of a special election, likewise fails to persuade.

No less than petitioner himself concedes that there was total failure of elections in twelve (12) municipalities and partial failure in eleven (11). Yet he now insists a total failure of elections should have been declared in the entire province of Lanao del Sur. Suffice it to state that the propriety of declaring whether or not there has been a total failure of elections in the entire province of Lanao del Sur is a factual issue which this Court will not delve into considering that the COMELEC, through its deputized officials in the field, is in the best position to assess the actual conditions prevailing in that area. Absent any showing of grave abuse of discretion, the findings of fact of the COMELEC or any administrative agency exercising particular expertise in its field of endeavor, are binding on the Court. 13 There is no cogent reason to depart from the general rule in this case.The insistence of petitioner that the COMELEC violated Sections 166, 170, 175 and 176 of the Omnibus Election Code when it ordered elements of the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) who are not assigned to the affected areas as members of the Board of Election Inspectors (BEIs) is likewise unconvincing vis-à-vis the underlying reason of the public respondent to have an effective and impartial military presence "to avoid the risk of another failure of election."So too must fall the argument that machine counting being allegedly "undependable and unreliable" should not be resorted to as the reasoning of petitioner, by itself, invokes the answer. If the COMELEC saw it fit to order a machine counting of votes in the municipalities enumerated, it could only mean that the decree of R.A. No. 8436 could be implemented without the interference of the claimed "unreliability, inaccuracy and undependability" of the computer sets. The absence of any satisfactory proof to support petitioner's allegations to the contrary reduces them to mere self-serving claims.Be that as it may, we agree with the Solicitor General that the petition has been rendered moot by supervening events. For one, it seeks to enjoin the holding of special elections scheduled for July 18 and 25, 1998. However, petitioner himself admits that special elections were "conducted on a staggered basis" on July 4, 18 and 25, 1998.14 For another, the petition questions the membership of the Board of Election Inspectors for being composed of elements of the Armed Forces of the Philippines and the Philippine National Police as well as the machine counting of the votes when these events have been superseded by the recent issuance of the Certificates Of Canvass Of Votes And Proclamation Of The Winning Candidates For Provincial Offices dated August 7, 1998. 15 In face of these supervening events, the arguments proffered by the petitioner to seek the annulment of the challenged Omnibus Order rings hollow. Verily —At balance, the question really boils down to a choice of philosophy and perception of how to interpret and apply laws relating to elections; literal or liberal; the letter or the spirit; the naked provision or its ultimate purpose; legal syllogism or substantial justice; in isolation or in the context of social conditions; harshly against or gently in favor of the voter's obvious choice. In applying election laws, it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms. 16

Indeed, to embark upon the costly electoral exercise insisted upon by petitioner in terms of time and taxpayer's money is an unwarranted imposition on the people of the affected areas and is an unacceptable option to the judicial conscience.WHEREFORE, in view of all the foregoing, the petition is DISMISSED for lack of merit.SO ORDERED.