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G.R. No. L-24721             November 3, 1925

TOMAS DE GUZMAN, petitioner, vs.

PROVINCIAL BOARD OF CANVASSERS OF LA UNION and JUAN T. LUCERO, respondents. 

VILLAMOR, J.:

          This proceedings is for the purpose of having this court issue a mandamus addressed to the provincial board of canvassers of the Province of La Union, ordering it to meet and reject and annul all the votes adjudicated to the respondent Juan T. Lucero, and after correcting the election return, to proclaim and certify the petitioner elected for the office of provincial governor of La Union in accordance with law.

          As ground of the petition, it is alleged that the respondent provincial board of canvassers met on June 22, 1925, for the purpose of counting the votes cast in the election for provincial officers and certifying the result of the count, and after gathering all the election returns, it found that the petitioner had obtained 7,662 votes and the respondent Juan T. Lucero, 8,771 votes; that the original of the certificate of candidacy of the respondent Juan T. Lucero, a certified copy of which is Exhibit A, was not duly sworn to, as required by law, while the certificate of candidacy of the petitioner Tomas de Guzman, the original of which is Exhibit B, was prepared and filed in accordance with the requirements of the law; that notwithstanding that Juan T. Lucero did not file a certificate of candidacy duly sworn to, as provided in section 404 of the Election Law, the respondent provincial board of canvassers willfully and illegally adjudicated the 8,771 votes to the respondent, and afterwards illegally proclaimed and certified him as governor-elect of the Province of La Union; that in view of these facts the respondent Juan T. Lucero has not, and could not have, been a legal candidate for the office in question, and could not have been certified elected for the office of provincial governor.

          To this complaint the respondent filed a demurrer on the ground: (a) That the court had no jurisdiction over the subject-matter in litigation; (b) that the court had no jurisdiction over the persons of the defendant members of the extinguished provincial board of canvassers of La Union; and (c) that the facts alleged in the complaint did not constitute a cause of action.

          The question to be decided in this proceeding is whether or not the respondent has filed a certificate of candidacy in accordance with the law, and in case he has not, whether the writ applied for should be issued.

          Section 41 of Act No. 3030, amending section 471 of the Election Law, provides that the provincial board of canvassers or the Governor-General, as the case may be, shall certify elected for the offices of senator or member of the House of Representatives and for provincial officers only those who shall have obtained the highest number of votes,

and filed their certificates of candidacy in accordance with the provisions of section 404 of this law. And said section 404, as amended by section 3 of the same Act No. 3030, provides that no person shall be eligible for the office of senator, representative or any provincial office, unless within the time fixed by the law, he shall file a certificate of candidacy duly verified. The meaning of the phrase "a certificate of candidacy duly verified," is explained by this court in Viola vs. Court of First Instance of Camarines Sur and Adolfo, (47 Phil., 849), to the effect that ". . . only when the corresponding receipt has been issued and the certificate filed can it be presumed that it has been duly verified and filed."

          In the instant case, according to the allegations of the petitioner the respondent Juan T. Lucero filed his certificate of candidacy in the office of the secretary of the provincial board of La Union on April 15, 1925, the provincial secretary having issued the proper receipt for the filing of said certificate, together with a statement of the expenses attached thereto (Exhibit 2). It, therefore, seems clear that the respondent filed his certificate in accordance with the Spanish text of section 404 of the Election Law, as amended by section 3 of act No. 3030.

          But the petitioner argues that section 404 of the Election Law, as amended by section 3 of Act No. 3030, is mandatory in its terms, and therefore must be complied with the provincial board, respondent herein. Granting that the English text of the law in this case makes clear the Spanish text "Certificado de candidatura debidamente acreditado" (certificate of candidacy duly verified), it will be seen that said section 3 of Act No. 3030 requires the candidate to file a "certificate of candidacy duly verified," indicating by these two words that the certificate of candidacy must be sworn to. In the case before us the certificate of the respondent Juan T. Lucero was defective, lacking the formality of the oath. This irregularity might have justified the elimination of the name of Juan T. Lucero as a legal candidate for the office of provincial governor, if an objection on the part of the petitioner Tomas de Guzman had been made in due time. Yet we are of the opinion that this irregularity does not invalidate the election for the fundamental reason that after it was proven by the count of the votes that Juan T. Lucero had obtained the majority of the legal votes, the will of the people cannot be frustrated by a technicality consisting in that his certificate of candidacy had not been properly sworn to.

          This court in the case of Gardiner vs. Romulo (26 Phil., 521), following authoritative decisions of the United States, which establish rules of interpretation of election laws, said:

          The provisions of the Election Law declaring that a certain irregularity in an election procedure is fatal to the validity of the ballot or of the returns, or when the purpose and spirit of the law would be plainly defeated by a substantial departure from the prescribed method, are mandatory.

          When the Election Law does not provide that a departure from a prescribed form will be fatal and such departure has been due to an honest mistake or misinterpretation of the Election Law on the part of him who was obligated to observe it, and such departure has not been used as a means for fraudulent practices or for the intimidation of voters, and it is clear that there has been a free and honest expression of the popular will, the law will be held directory and such departure will be considered a harmless irregularity.lawph!1.net

          And in Lino Luna vs. Rodriguez, (39 Phil., 208), this court laid down the following doctrine:

          It has been announced in many decisions that the rules and regulations, for the conduct of elections, are mandatory before the election, but when it is sought to enforce them after the election, they are held to be directory only, if that is possible, especially where, if they are held to be mandatory, innocent voters will be deprived of their votes without any fault on their part. The various and numerous provisions of the Election Law were adopted to assist the voters in their participation in the affairs of the government and not to defeat that object. When the voters have honestly cast their ballots, the same should not be nullified simply because the officers appointed under the law to direct the election and guard the purity of the ballot have not done their duty. The law provides a remedy, by criminal action, against them. They should be prosecuted criminally, and the will of the honest voter, as expressed through his ballot, should be protected and upheld.

          We hold that the legal provision here in question is mandatory and non-compliance therewith before the election would have been fatal to the recognition of the status of Juan T. Lucero as candidate. But after the people have expressed their will honestly, the result of the election cannot be defeated by the fact that the respondent who was certified by the provincial secretary to be a legal candidate for the office of provincial governor, has not sworn to his certificate of candidacy. The situation is somewhat like that of a voter placing his ballot in the box. There are certain requirements of the law, affecting the vote, which have been considered by this court as of a mandatory character until the ballot is placed in the ballot box; but we have held that the validity of the count cannot be questioned, nor the vote stricken out after the ballots had been placed in the ballot boxes, simply for non-compliance with such provisions. After the termination of the election, public interest must be made to prevail over that of the defeated candidate, and we cannot declare that the election of the respondent Juan T. Lucero was illegal, and that he should quit the office for which he was elected, simply by reason of a defect in his certificate of candidacy, which defect could have been corrected before the election, but which cannot be cured after its

termination, and after the result of the election was published by the provincial board of canvassers, respondents herein.

          Of course the conclusion which we have arrived at tends to sustain the third ground of the demurrer of the respondent. We will not enter upon the discussion of the two first grounds of said demurrer, for it may be seen that they are clearly untenable.

          The demurrer of the respondent is therefore sustained upon the third ground, and considering that in view of our ruling upon the only legal question raised in this proceeding, the complaint cannot be amended, this case is definitely adjudicated, and the writ of mandamus applied for is denied with the costs against the petitioner. So ordered.

G.R. No. L-17512           December 29, 1960

CLARO IBASCO, petitioner, vs.HON. MELQUIADES G. ILAO, ET AL., respondents.

BAUTISTA ANGELO, J.:

On December 2, 1959, Jose Pascual filed with the Court of First Instance of Camarines Norte a protest contesting the election of Claro Ibasco as Mayor of Mercedes, Camarines Norte. When summons was serve upon Ibasco, instead of filing an answer, he filed a motion for bill of particulars which was granted on January 5, 1960, the court ordering Pascual "to amend his motion of protest by naming the precincts where the alleged minors voted, the date and the precincts where they were registered, the persons who voted twice and the precincts where they voted, and the precincts where the inspectors allegedly committed irregularities", within five days from receipt of the order.

As protestant failed to file an amended protest, protestee filed a motion to dismiss on January 19, 1960, which was denied by the court. In the meantime, protestee failed to file his answer as required by law; he was not however declared in default, but was deemed to have entered a general denial as provided for in Section 176 (e) of the Revised Election Code.

During the hearing, protestee questioned the validity of the ballots cast in favor of protestant which had been marked by protestee as exhibits during the revision of the ballots before the Committee on Revision in precincts covered by the protest, but the trial court ruled that protestee cannot impugn said ballots because he failed to file an answer with affirmative defenses. Protestee filed a motion for reconsideration contending that, as he has not been declared in default, he has a right to contest the votes cast in favor of protestant provided that they are covered by the protest, but the motion was denied.

Hence, protestee came to this Court by way of certiorari praying that respondent court be ordered to allow him to present such evidence as may be necessary to nullify the questioned ballots cast in favor of protestant in those precincts involved in the protest. Upon his petition, this Court issued a writ of preliminary injunction.

The issue before us resolves around the interpretation to be placed on the terms "general denial" used in Section 176 (e) of the Revised Election Code. This portion of the law provides:

(e) If no answer shall be filed to the protests or to the counter-protest within the time limits respectively fixed, a general denial shall be deemed to have been entered.

The incident that gave rise to this proceeding arose when protestee questioned the validity of the ballots cast in favor of protestant in some of the precincts involved in the protest introducing as evidence the ballots which were marked by him as exhibits before the Committee on Revision, but the trial court did not allow him to do so on the ground that, having failed to file an answer, he is deemed to have entered merely a general denial. The trial court acted upon the theory that as the Rules of Court are suppletory in election contests resort must be had to the meaning of the terms "general denial" within the purview of said rules which in essence implies an admission of the material allegations of the complaint. In synthesis, it is the theory of the trial court that the failure of protestee to file an answer is tantamount to an admission on his part of the material allegations of the protest and, therefore, he is no longer in a position to dispute them.

There seems to be a misapprehension in the application of Rule 132 1 which provides for the extension of the Rules of Court to election cases on matters not specifically covered by the Election Law. While said rule provides that our rules shall apply to election cases "by analogy or in a suppletory character", the application is qualified. It says that the gap shall be filled "whenever practicable and convenient." This phrase connotes a meaning which prevents an unbriddled application of the Rules of Court, as well as of all matters incident thereto, for there is still need to show and analyze if the extension would help attain the objective of the law or would tend to defeat it.2Apparently, this rationale has been overlooked by the trial court when in one brush it adopted the meaning of the term "general denial" as understood in the realm of our procedural law. We believe such to be an error.

It is meet to recall here what we once said of general denial. This is what we said: "No rule is better settled in pleading and practice than that neither party can prove facts which he has not alleged, if objection is properly made. Under a general denial the defendant is permitted to present any evidence which disproves, or tends to disprove, any of the allegations in the complaint. The reason why "prescription" cannot be interposed under a demurrer or a general denial is the fact that the defendant thereby admits the allegations in the complaint, but seeks to avoid their effect by other proof. Evidence which amounts to a confession or an avoidance is not generally admissible under a general denial." (Karagdag vs. Barado, 33 Phil., 529, 532-533; Emphasis supplied) In other words, a general denial puts in issue the material allegations of the complaint, and, consequently, under such denial the protestee may present evidence which may disprove said allegations. But he cannot present evidence to prove any affirmative defense (Francisco, How to Try Election Cases, p. 136). It is in this sense that the

terms "general denial" should be understood in election cases, for to give it a different meaning would render the provisions of Section 176 (e) nugatory and meaningless; that phrase would be purposeless if we were to hold that by "general denial" protestee would be deemed to have admitted all the material allegations of the protest.

There are weighty reasons that support the application of such theory in election cases. One is the cardinal principle that an election case involves public interest and, hence, it imposed upon the court the imperative duty to ascertain by all means within its command who is the real candidate elected by the electorate. That is why the law gives to the court the power, in interest of justice, to order motu proprio that the ballot boxes and other election documents be produced before it so that they may be examined and recounted regardless of whether the party raises any issue in its pleading concerning the validity of the ballots (Section 175, Revised Election Code). On the other hand, it has been postulated as a fundamental principle underlying the trial of election cases that technicalities or procedural barriers should not be allowed to stand if the same would tend to defeat rather than promote the interest of justice. Rather, it is enjoined that the Election Law should be liberally construed to the end that the will of the people may not be defeated.

As my be seen, the Revised Election Code does not provide for any particular procedure for the disposition of an election case once the issues are joined. On the other hand, Rule 132, of our Rules of Court, provides that the rules of court shall not apply to election cases "except by analogy or in a suppletory character and whenever practicable and convenient." It would therefore appear that by legislative fiat the trial of an election case shall be conducted in a summary litigations in order that its result may be determined in the shortest time possible. The reason is obvious: an election case, unlike an ordinary action, involves public interest, time element being of the essence in its disposition so that the uncertainty as to who is the real choice of the people may at once be dispelled. Moreover, it is neither fair no just that we keep in office for an uncertain period once whose right to it is under suspicion. It is imperative that his claim be immediately cleared not only for the benefit of the winner but for the sake of public interest, which can only be achieved by brushing aside technicalities of procedure which protract and delay the trial of an ordinary action. As this Court has aptly said: "The purpose of the legislature in declaring that contest should not be conducted upon pleadings or by action was to free the courts as far as possible from the technicalities incident to ordinary proceeding by action and to enable the court's to administer justice speedily and without complications" (Lucero vs. De Guzman, 45 Phil., 852). (Roforma vs. De Luna, 104 Phil., 278.)lawphil.net

It has been frequently decided, and it may be stated as a general rule recognized by all the courts, that statutes providing for election contest are to be liberally construed, to the end that the will of the people in the choice of public officers may not be defeated by merely technical objections. To that end immaterial defects in pleadings should be disregarded and necessary and proper amendments should be alowed as promptly as possible. (Heyfrom vs. Mahoney, 18 Am. St. Rep., 757, 763; McCrary on Elections, 3d ed., Sec. 396.) (Galang vs. Miranda and De Leon, 35 Phil., 269; 271-272; See also Jalandoni vs. Sarcon, 94 Phil., 266; 50 Off. Gaz., 587.)

In the light of the foregoing, it would appear that the trial court erred in blocking the attempt of protestee to impugn the validity of the ballots questioned by him that were cast in favor of protestant it appearing that they were all involved in the precincts covered by the protest. Such an attempt merely tends to disprove the claim of the protestant that irregularities were committed in the precincts involved, which is within the realm of "general denial" as we have already pointed out.

We are, therefore, persuaded to conclude that the trial court committed an abuse of discretion in issuing the orders subject of the present petition for certiorari. .

Wherefore, petition is granted. The orders of the trial court herein involved are set aside. No costs.

Paras, C. J., Bengzon, Padilla, Concepcion, Reyes J.B.L., Barrera, Gutierrez David, Paredes, and Dizon, JJ., concur.Labrador, J., concurs in the result.

 

Footnotes

1 "These rules shall not apply to land registration, cadastral and election cases, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient."

2 Morente vs. Filamor and Arce Ignacio, 52 Phil., 289.

G.R. No. 94010 December 2, 1991

FELIPE EVARDONE, petitioner, vs.COMMISSION ON ELECTIONS, ALEXANDER APELADO, VICTORINO E. ACLAN and NOEL A. NIVAL,respondents.

G.R. No. 95063 December 2, 1991

ALEXANDER R. APELADO, VICTORINO E. ACLAN and NOEL A. NIVAL, petitioners, vs.COMMISSION ON ELECTIONS and MAYOR FELIPE EVARDONE, respondents.

Zosimo G. Alegre for Felipe Evardone.

Elmer C. Solidon for petitioners in G.R. No. 95063.

 

PADILLA, J.:p

These two (2) consolidated petitions have their origin in en banc Resolution No. 90-0557 issued by the respondent Commission on Elections (COMELEC) dated 20 June 1990 which approved the recommendation of the Election Registrar of Sulat, Eastern Samar to hold and conduct the signing of the petition for recall of the incumbent Mayor of Sulat, Eastern Samar, on 14 July 1990.

G.R. No. 94010 is a petition for prohibition with an urgent prayer for immediate issuance of a restraining order and/or writ of preliminary injunction to restrain the holding of the signing of the petition for recall on 14 July 1990.

G.R. No. 95063 is a petition for review on certiorari which seeks to set aside en banc Resolution No. 90-0660 of the respondent COMELEC nullifying the signing process held on 14 July 1990 in Sulat, Eastern Samar for the recall of Mayor Evardone of said municipality and en banc Resolution No. 90-0777 denying petitioners' motion for reconsideration, on the basis of the temporary restraining order issued by this Court on 12 July 1990 in G.R. No. 94010.

Felipe Evardone (hereinafter referred to as Evardone) is the mayor of the Municipality of Sulat, Eastern Samar, having been elected to the position

during the 1988 local elections. He assumed office immediately after proclamation.

On 14 February 1990, Alexander R. Apelado, Victozino E. Aclan and Noel A. Nival (hereinafter referred to as Apelado, et al.) filed a petition for the recall of Evardone with the Office of the Local Election Registrar, Municipality of Sulat.

In a meeting held on 20 June 1990, the respondent COMELEC issued Resolution No. 90-0557, approving the recommendation of Mr. Vedasto B. Sumbilla, Election Registrar of Sulat, Eastern Samar, to hold on 14 July 1990 the signing of the petition for recall against incumbent Mayor Evardone of the said Municipality.

On 10 July 1990, Evardone filed before this Court a petition for prohibition with urgent prayer for immediate issuance of restraining order and/or writ of preliminary injunction, which was docketed as G.R. No. 94010.

On 12 July 1990, this Court resolved to issue a temporary restraining order (TRO), effective immediately and continuing until further orders from the Court, ordering the respondents to cease and desist from holding the signing of the petition for recall on 14 July 1990, pursuant to respondent COMELEC's Resolution No. 2272 dated 23 May 1990.

On the same day (12 July 1990), the notice of TRO was received by the Central Office of the respondent COMELEC. But it was only on 15 July 1990 that the field agent of the respondent COMELEC received the telegraphic notice of the TRO—a day after the completion of the signing process sought to be temporarily stopped by the TRO.

In an en banc resolution (No. 90-0660) dated 26 July 1990, the respondent COMELEC nullified the signing process held in Sulat, Eastern Samar for being violative of the order (the TRO) of this Court in G.R. No. 94010. Apelado, et al., filed a motion for reconsideration and on 29 August 1990, the respondent COMELEC denied said motion holding that:

. . . The critical date to consider is the service or notice of the Restraining Order on 12 July 1990 upon the principal i.e. the Commission on Election, and not upon its agent in the field. 1

Hence, the present petition for review on certiorari in G.R. No. 95063 which seeks to set aside en banc Resolution No. 90-0660 of respondent COMELEC.

In G.R. No. 94010, Evardone contends that:

I. The COMELEC committed grave abuse of discretion in approving the recommendation of the Election Registrar of Sulat, Eastern Samar to hold the signing of the petition for recall without giving petitioner his day in court.

II. The COMELEC likewise committed grave abuse of discretion amounting to lack or excess of jurisdiction in promulgating Resolution No. 2272 on May 22, 1990 which is null and void for being unconstitutional. 2

In G.R. No. 95063, Apelado, et al., raises the issue of whether or not the signing process of the petition for recall held on 14 July 1990 has been rendered nugatory by the TRO issued by this court in G.R. No. 94010 dated 12 July 1990 but received by the COMELEC field agent only on 15 July 1990.

The principal issue for resolution by the Court is the constitutionality of Resolution No. 2272 promulgated by respondent COMELEC on 23 May 1990 by virtue of its powers under the Constitution and Batas Pambansa Blg. 337 (Local Government Code). The resolution embodies the general rules and regulations on the recall of elective provincial, city and municipal officials.

Evardone maintains that Article X, Section 3 of the 1987 Constitution repealed Batas Pambansa Blg. 337 in favor of one to be enacted by Congress. Said Section 3 provides:

Sec. 3. The Congress shall enact a local government code shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties local officials, and all other matters relating to the organization operation of the local units.

Since there was, during the period material to this case, no local government code enacted by Congressafter the effectivity of the 1987 Constitution nor any law for that matter on the subject of recall of elected government officials, Evardone contends that there is no basis for COMELEC Resolution No. 2272 and that the recall proceedings in the case at bar is premature.

The respondent COMELEC, in its Comment (G.R. No. 94010) avers that:

The constitutional provision does not refer only to a local government code which is in futurum but also in esse. It merely sets forth the guidelines which Congress will consider in amending the provisions of the present Local Government Code. Pending the enactment of the amendatory law, the existing Local Government Code remains operative. The adoption of the 1987 Constitution did not abrogate the provisions of BP No. 337, unless a certain provision thereof is clearly irreconciliable with the provisions of the 1987 Constitution. In this case, Sections 54 to 59 of Batas Pambansa No. 337 are not inconsistent with the provisions of the Constitution. Hence, they are operative. 3

We find the contention of the respondent COMELEC meritorious.

Article XVIII, Section 3 of the 1987 Constitution express provides that all existing laws not inconsistent with the 1987 Constitution shall remain operative, until amended, repealed or revoked. Republic Act No. 7160 providing for the Local Government Code of 1991, approved by the President on 10 October 1991, specifically repeals B.P. Blg. 337 as provided in Sec. 534, Title Four of said Act. But the Local Government Code of 1991 will take effect only on 1 January 1992 and therefore the old Local Government Code (B.P. Blg. 337) is still the law applicable to the present case. Prior to the enactment of the new Local Government Code, the effectiveness of B.P. Blg. 337 was expressly recognized in the proceedings of the 1986 Constitutional Commission. Thus—

MR. NOLLEDO. Besides, pending the enactment of a new Local Government Code under the report of the Committee on Amendments and Transitory Provisions, the former Local Government Code, which is Batas Pambansa Blg. 337 shall continue to be effective until repealed by the Congress of the Philippines. 4

Chapter 3 (Sections 54 to 59) of B.P. Blg. 337 provides for the mechanism for recall of local elective officials. Section 59 expressly authorizes the respondent COMELEC to conduct and supervise the process of and election on recall and in the exercise of such powers, promulgate the necessary rules and regulations.

The Election Code contains no special provisions on the manner of conducting elections for the recall of a local official. Any such election shall be conducted in the manner and under the rules on special elections, unless otherwise provided by law or rule of the COMELEC. 5 Thus, pursuant to the rule-making power vested in respondent COMELEC, it promulgated Resolution No. 2272 on 23 May 1990.

We therefore rule that Resolution No. 2272 promulgated by respondent COMELEC is valid and constitutional. Consequently, the respondent COMELEC had the authority to approve the petition for recall and set the date for the signing of said petition.

The next issue for resolution is whether or not the TRO issued by this Court rendered nugatory the signing process of the petition for recall held pursuant to Resolution No. 2272.

In Governor Zosimo J. Paredes, et al. vs. Executive Secretary to the President of the Philippines, et al., 6 this Court held:

. . . What is sought in this suit is to enjoin respondents particularly respondent Commission from implementing Batas Pambansa Blg. 86, specifically "from conducting, holding and undertaking the plebiscite provided for in said act." The petition was filed on December 5, 1980. There was a plea for a restraining order, but Proclamation No. 2034 fixing the date for such plebiscite on December 6, 1980 had been issued as far as back as November 11, 1980. Due this delay in to this suit, attributable solely to petitioners, there was no time even to consider such a plea. The plebiscite was duly held. The certificate of canvass and proclamation of the result disclosed that out of 2,409 total votes cast in such plebiscite, 2,368 votes were cast in favor of the creation of the new municipality, which, according to the statute, will be named municipality of Aguinaldo. There were only 40 votes cast against. As a result, such municipality was created. There is no turning back the clock. The moot and academic character of this petition is thus apparent.

In the present case, the records show that Evardone knew of the Notice of Recall filed by Apelado, et al. on or about 21 February 1990 as evidenced by the Registry Return Receipt; yet, he was not vigilant in following up and determining the outcome of such notice. Evardone alleges that it was only on or about 3 July 1990 that he came to know about the Resolution of respondent COMELEC setting the signing of the petition for recall on 14 July 1990. But despite his urgent prayer for the issuance of a TRO, Evardone filed the petition for prohibition only on 10 July 1990.

Indeed, this Court issued a TRO on 12 July 1990 but the signing of the petition for recall took place just the same on the scheduled date through no fault of the respondent COMELEC and Apelado, et al. The signing process was undertaken by the constituents of the Municipality of Sulat and its Election Registrar in good faith and without knowledge of the TRO earlier issued by this Court. As attested by Election Registrar Sumbilla, about 2,050 of the 6,090 registered voters of Sulat, Eastern

Samar or about 34% signed the petition for recall. As held in Parades vs.Executive Secretary 7 there is no turning back the clock.

The right to recall is complementary to the right to elect or appoint. It is included in the right of suffrage. It is based on the theory that the electorate must maintain a direct and elastic control over public functionaries. It is also predicated upon the idea that a public office is "burdened" with public interests and that the representatives of the people holding public offices are simply agents or servants of the people with definite powers and specific duties to perform and to follow if they wish to remain in their respective offices. 8

Whether or not the electorate of the Municipality of Sulat has lost confidence in the incumbent mayor is a political question. It belongs to the realm of politics where only the people are the judge. 9 "Loss of confidence is the formal withdrawal by an electorate of their trust in a person's ability to discharge his office previously bestowed on him by the same electorate. 10 The constituents have made a judgment and their will to recall the incumbent mayor (Evardone) has already been ascertained and must be afforded the highest respect. Thus, the signing process held last 14 July 1990 in Sulat, Eastern Samar, for the recall of Mayor Felipe P. Evardone of said municipality is valid and has legal effect.

However, recall at this time is no longer possible because of the limitation provided in Sec. 55 (2) of B.P. Blg, 337, which states:

Sec. 55. Who May Be Recalled; Ground for Recall; When Recall May not be Held.— . . .

(2) No recall shall take place within two years from the date of the official's assumption of office or one year immediately preceding a regular local election.

The Constitution has mandated a synchronized national and local election prior to 30 June 1992, or more specifically, as provided for in Article XVIII, Sec. 5 — on the second Monday of May, 1992. 11 Thus, to hold an election on recall approximately seven (7) months before the regular local election will be violative of the above provisions of the applicable Local Government Code (B.P. Blg. 337)

ACCORDINGLY, both petitions are DISMISSED for having become moot and academic.

SO ORDERED.

G.R. No. 155618            March 26, 2003

EDGAR Y. SANTOS, petitioner, vs.COMMISSION ON ELECTIONS (FIRST DIVISION) and PEDRO Q. PANULAYA, respondents.

YNARES-SANTIAGO, J.:

Petitioner Edgar Y. Santos and respondent Pedro Q. Panulaya were both candidates for Mayor of the Municipality of Balingoan, Misamis Oriental in the May 14, 2001 elections. On May 16, 2001, after the votes were counted and canvassed, the Municipal Board of Canvassers proclaimed respondent Panulaya as the duly elected Mayor.

Petitioner filed an election protest before the Regional Trial Court of Misamis Oriental, Branch 26, which was docketed as SPL Election Protest No. 1-M(2001). After trial and revision of the ballots, the trial court found that petitioner garnered 2,181 votes while respondent received only 2,105. Hence, on April 2, 2002, it rendered judgment as follows:

WHEREFORE, judgment is hereby rendered declaring and proclaiming protestant/petitioner Edgar Y. Santos as the duly elected Municipal Mayor of Balingoan, Misamis Oriental, in the mayoralty elections held on May 14, 2001 with the plurality of Seventy Six (76) votes over and above his protagonist-protestee Pedro Q. Panulaya setting aside as null and void the proclamation of protestee made by the Municipal Board of Canvassers on May 16, 2001, ordering to pay protestant/petitioner the costs and expenses that the latter incurred in this protest in accordance with Section 259 of the Omnibus Election Code of the Philippines (B.P. 881) and Section 7 of the COMELEC Resolution 1566, to wit:

xxx           xxx           xxx.

The Clerk of Court of this Court is hereby directed to furnish copy of the DECISION to the following: Office of the Commission on Elections (COMELEC); Office of the Commission on Audit; Office of the Department of Interior and Local Government; Office of the Sangguniang Panlalawigan of Misamis Oriental, in accordance with Section 15 of the COMELEC Resolution 1566.

SO ORDERED.1

Petitioner thereafter filed a motion for execution pending appeal. Meanwhile, before the trial court could act on petitioner’s motion,

respondent filed on April 22, 2002 with the Commission on Elections (COMELEC) a petition for certiorari, docketed as SPR No. 20-2002, assailing the decision of the trial court.2 Likewise on April 22, 2002, respondent appealed the trial court’s decision to the COMELEC, where it was docketed as EAC No. A-12-2002.

The COMELEC, in SPR No. 20-2002, issued a Writ of Preliminary Injunction, which effectively enjoined the trial court from acting on petitioner’s motion for execution pending appeal. Subsequently, on August 19, 2002, the COMELEC dismissed SPR No. 20-2002 after finding that the trial court did not commit grave abuse of discretion in rendering the assailed judgment. Moreover, the COMELEC held that the remedy from the decision of the court a quo was to file a notice of appeal, which respondent precisely did in EAC No. A-12-2002. Hence, it directed the trial court to dispose of all pending incidents in SPL Election Protest No. 1-M(2001) with dispatch, to wit:

WHEREFORE, premises considered, the Commission (First Division) RESOLVED as it hereby RESOLVES to DISMISS the instant petition for lack of merit.

ACCORDINGLY, the Writ of Preliminary Injunction issued on 16 May 2002, as well as the Order issued on 27 April 2002 by the Commission (First Division), are hereby set aside and lifted, respectively. The Court a quo is hereby directed to dispose with immediate dispatch all pending incidents in SPL Election Case No. 1-M (2001) entitled "Edgar Y. Santos, Petitioner/Protestant versus Pedro Q. Panulaya, Respondent/Protestee."

No pronouncement as to cost.

SO ORDERED. (italics ours)3

Thus, on August 20, 2002, the trial court issued an Order as follows:

WHEREFORE, premises considered, this Court hereby upholds and approves the Motion for Execution Pending Appeal. Further, finding good reasons therefor, the Court hereby directs and orders the immediate execution of the Decision promulgated on April 18, 2002, and as prayed for install protestant/petitioner EDGAR Y. SANTOS as the duly elected Mayor of Balingoan, Misamis Oriental, to take his oath of office and assume the functions and duties of Mayor after he shall have filed a bond of One Hundred Thousand Pesos (P100,000.00).

SO ORDERED.4

After petitioner posted the required bond, the trial court issued the Writ of Execution,5 thereby installing petitioner as Municipal Mayor of Balingoan, Misamis Oriental. Accordingly, petitioner took his oath of office and thereafter assumed the duties and functions of his office.

On August 21, 2002, respondent filed with the COMELEC a motion for reconsideration of the dismissal of his petition in SPR No. 20-2002.6 After five days, or on August 26, 2002, he filed a supplemental petition in SPR No. 20-2002,7 wherein he prayed:

WHEREFORE, foregoing premises considered, petitioner [herein respondent] respectfully prays unto this Honorable Commission that the following Orders of the public respondent:

1. Resolution dated 20 August 2002;

2. Order dated 20 August 2002;

3. Writ of execution dated 21 August 2002;

Be nullified and set aside.

It is further prayed that in the event that the public respondent has carried out its Order of ousting petitioner [herein respondent] from his position as Mayor of Balingoan, Misamis Oriental, that the same be nullified and considered of no legal effect. It is likewise prayed that a STATUS QUO ANTE ORDER be issued by the Honorable Commission in order to reinstate the petitioner to his rightful position as Mayor of Balingoan, Misamis Oriental.

Other reliefs, just and equitable are likewise prayed for.8

Barely two days later, on August 28, 2002, and while his motion for reconsideration and supplemental petition in SPR No. 20-2002 were pending, respondent filed another petition with the COMELEC, docketed as SPR No. 37-2002.9 The petition contained the same prayer as that in the supplemental petition filed in SPR 20-2002, viz:

WHEREFORE, foregoing premises considered, petitioner [herein respondent] respectfully prays unto this Honorable Commission that immediately upon the filing of the herein petition, the following Orders of the public respondent:

1. Resolution dated 20 August 2002;

2. Order dated 20 August 2002;

3. Writ of execution dated 21 August 2002;

Be nullified and set aside.

Pending trial and final judgment, and soon after the issuance, but during the effectivity of the Temporary Restraining Order, a Writ of Preliminary Injunction be issued prohibiting, restraining and/or enjoining the public respondent from further implementing the highly unjust, irregular and oppressive Orders above-quoted;

It is further prayed that in the event that the public respondent has carried out its Order of ousting petitioner [herein respondent] from his position as Mayor of Balingoan, Misamis Oriental, that the same be nullified and considered of no legal effect. It is likewise prayed that a STATUS QUO ANTE ORDER be issued by the Honorable Commission in order to reinstate the petitioner to his rightful position as Mayor of Balingoan, Misamis Oriental.

Upon due notice and hearing, judgment be rendered in favor of the petitioner [herein respondent] and against the respondent [herein petitioner] as follows:

1. Making the Writ of Preliminary Prohibitory Injunction permanent;

2. Declaring Resolution dated 20 August 2002, Order dated 20 August 2002, and Writ of Execution dated 21 August 2002; as null and void for being highly unjust, irregular and oppressively prepared in utter violation of the Constitutional provisions on equal protection of the laws and due process, and for having been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction.

3. A writ of Prohibition be issued specifically commanding public respondent to cease and desist from further implementing the highly unjust, irregular and oppressive Orders above-mentioned are concerned (sic); and

4. Ordering the respondents to pay the costs of suit.

Such other reliefs and remedies, as are just and equitable in the premises, are likewise prayed for.10

On September 3, 2002, the COMELEC issued the assailed Order directing the parties to maintain the status quo ante and enjoining petitioner from assuming the functions of Mayor. Pertinent portion of the Order reads:

In the interest of justice and so as not to render moot and academic the issues raised in the petition, the Commission (First Division) hereby directs the parties to maintain the status quo ante, which is the condition prevailing before the issuance and implementation of the questioned Order of the court a quo dated August 20, 2002 and the Writ of Execution issued pursuant thereto dated August 21, 2002, in SPL. ELECTION CASE NO. 1-M (2001) entitled "EDGAR Y. SANTOS versus PEDRO Q. PANULAYA." Accordingly, effective immediately, private respondent EDGAR Y. SANTOS is hereby ordered to cease and desist from assuming the duties and functions of the office of Mayor of Balingoan, Misamis Oriental until further orders from this Commission.11

Petitioner filed a motion for reconsideration of the above Order. However, the COMELEC First Division did not refer the said motion to the COMELEC En Banc. Hence, petitioner, citing our ruling in Kho v. COMELEC,12 brought the instant special civil action for certiorari with this Court.

Meanwhile, on September 9, 2002, petitioner filed an "Omnibus Motion (1) To Dissolve The Status Quo Order As It Was Based On An Unverified And Dismissed Petition With Pending Motion For Reconsideration; And (2) To Refer This Motion To The Commission En Banc Under Section 2, Rule 3 of the COMELEC Rules of Procedure."13 On October 14, 2002, the COMELEC issued a Resolution in SPR No. 37-2002, the dispositive portion of which states:

WHEREFORE, premises considered, the Petition is hereby GRANTED. Accordingly, the August 20, 2002 Resolution of the respondent judge granting the Motion for Execution Pending Appeal as well as his Order also dated August 20, 2002 directing the issuance of the Writ of Execution and his Writ of Execution dated August 21, 2002 are hereby set aside. Private Respondent Edgar Y. Santos is enjoined from assuming the function of mayor of Balingoan, Misamis Oriental until the final determination of the election appeal case.

This resolution shall be immediately executory.

The Department of Interior and Local Government (DILG) is hereby requested to assist in the peaceful and orderly implementation of this Resolution.

SO ORDERED.14

The petition is impressed with merit.

It is at once apparent from the records, as shown above, that respondent was guilty of forum-shopping when he instituted SPR No. 37-2002 with the COMELEC. Forum-shopping is an act of a party against whom an adverse judgment or order has been rendered in one forum of seeking and possibly getting a favorable opinion in another forum, other than by appeal or special civil action for certiorari. It may also be the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition. For it to exist, there should be (a) identity of parties, or at least such parties as would represent the same interest in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) identity of the two preceding particulars such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration.15

In the case at bar, respondent obtained an adverse decision when his petition in SPR No. 20-2002 was dismissed by the COMELEC. He thereafter filed a motion for reconsideration and a supplemental petition, praying for the nullification of the trial court’s order for the execution of its decision pending appeal. Two days after filing the supplemental petition, and while the same was very much pending before the COMELEC, he filed a wholly separate petition for certiorari, docketed as SPR No. 37-2002, wherein he pleaded the same reliefs prayed for in the supplemental petition. This is plainly evident from the respective prayers in the supplemental petition and the petition for certiorari as reproduced hereinabove. In doing so, respondent, before allowing the COMELEC to fully resolve the incidents in SPR No. 20-2002, both of which were at his own instance, sought to increase his chances of securing a favorable decision in another petition. He filed the second petition on the supposition that the COMELEC might look with favor upon his reliefs.

Forum-shopping is considered a pernicious evil; it adversely affects the efficient administration of justice since it clogs the court dockets, unduly burdens the financial and human resources of the judiciary, and trifles with and mocks judicial processes.16 The most important factor in determining the existence of forum shopping is the vexation caused the courts and parties-litigants by a party who asks different courts to rule on the same or related causes or grant the same or substantially the same reliefs.17

Considering that respondent was indubitably guilty of forum-shopping when he filed SPR No. 37-2002, his petition should have been dismissed outright by the COMELEC.18Willful and deliberate forum-shopping is a ground for summary dismissal of the case, and constitutes direct contempt of court.19

The petition for certiorari in SPR No. 37-2002 assailed the trial court’s orders for the execution of its decision pending appeal. The grant of execution pending appeal was well within the discretionary powers of the

trial court. In order to obtain the annulment of said orders in a petition for certiorari, it must first be proved that the trial court gravely abused its discretion. He should show not merely a reversible error committed by the trial court, but a grave abuse of discretion amounting to lack or excess of jurisdiction. "Grave abuse of discretion" implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility which must be so patent and gross as to amount to an invasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. Mere abuse of discretion is not enough.20

We find that no grave abuse of discretion was committed by the trial court. In its order granting execution pending appeal, it held:

It is of judicial notice that for the public official elected last May 14, 2001 elections only a short period is left. Relative to this Court’s jurisdiction over the instant case, the settled rule that the mere filing of the notice of appeal does not divest the trial court of its jurisdiction over the case and to resolve pending incidents, i.e., motion for execution pending appeal (Asmala vs. COMELEC, 289 SCRA 745) need not be overemphasized.21

However, the COMELEC set aside the aforesaid order, saying that shortness of term alone is not a good reason for execution of a judgment pending appeal. We disagree.

While it was indeed held that shortness of the remaining term of office and posting a bond are not good reasons, we clearly stated in Fermo v. COMELEC22 that:

A valid exercise of the discretion to allow execution pending appeal requires that it should be based "upon good reasons to be stated in a special order." The following constitute "good reasons" and a combination of two or more of them will suffice to grant execution pending appeal: (1.) public interest involved or will of the electorate; (2.) the shortness of the remaining portion of the term of the contested office; and (3.) the length of time that the election contest has been pending (italics supplied).23

The decision of the trial court in Election Protest No. 1-M(2001) was rendered on April 2, 2002, or after almost one year of trial and revision of the questioned ballots. It found petitioner as the candidate with the plurality of votes. Respondent appealed the said decision to the COMELEC. In the meantime, the three-year term of the Office of the Mayor continued to run. The will of the electorate, as determined by the trial court in the election protest, had to be respected and given meaning. The Municipality of Balingoan, Misamis Oriental, needed the services of a mayor even while the election protest was pending, and it

had to be the candidate judicially determined to have been chosen by the people.

Between the determination by the trial court of who of the candidates won the elections and the finding of the Board of Canvassers as to whom to proclaim, it is the court’s decision that should prevail. This was sufficiently explained in the case of Ramas v. COMELEC24 in this wise:

All that was required for a valid exercise of the discretion to allow execution pending appeal was that the immediate execution should be based "upon good reasons to be stated in a special order." The rationale why such execution is allowed in election cases is, as stated in Gahol v. Riodique,25 "to give as much recognition to the worth of a trial judge’s decision as that which is initially ascribed by the law to the proclamation by the board of canvassers." Thus:

Why should the proclamation by the board of canvassers suffice as basis of the right to assume office, subject to future contingencies attendant to a protest, and not the decision of a court of justice? Indeed, when it is considered that the board of canvassers is composed of persons who are less technically prepared to make an accurate appreciation of the ballots, apart from their being more apt to yield to extraneous considerations, and that the board must act summarily, practically racing against time, while, on the other hand, the judge has benefit of all the evidence the parties can offer and of admittedly better technical preparation and background, apart from his being allowed ample time for conscientious study and mature deliberation before rendering judgment, one cannot but perceive the wisdom of allowing the immediate execution of decisions in election cases adverse to the protestees, notwithstanding the perfection and pendency of appeals therefrom, as long as there are, in the sound discretion of the court, good reasons therefor.

To deprive trial courts of their discretion to grant execution pending appeal would, in the words of Tobon Uy v. COMELEC,26

bring back the ghost of the "grab-the-proclamation-prolong the protest" techniques so often resorted to by devious politicians in the past in their efforts to perpetuate their hold to an elective office. This would, as a consequence, lay to waste the will of the electorate.27

Thus, the COMELEC committed grave abuse of discretion in giving due course, instead of dismissing outright, the petition in SPR No. 37-2002

despite the clear showing that respondent was guilty of forum-shopping; and in setting aside the trial court’s order granting execution pending appeal.

WHEREFORE, in view of the foregoing, the instant petition is GRANTED. The Order dated September 3, 2002 and the Resolution dated October 14, 2002 of the Commission on Elections in SPR No. 37-2002 are ANNULLED and SET ASIDE and the said case is ordered DISMISSED on the ground of forum-shopping. The Order dated August 20, 2002 of the Regional Trial Court of Misamis Oriental, Branch 26, granting the execution pending appeal of its decision in Election Protest No. 1-M(2001), and the Writ of Execution dated August 21, 2002, are REINSTATED. The full enforcement of the said Writ must forthwith be made. The court of origin shall transmit immediately to the Commission on Elections the records of SPL Election Case No. 1-M(2001), and the Commission on Elections shall dispose of the appeal in EAC No. A-12-2002 with deliberate dispatch.

This Decision shall be immediately executory.

Costs against private respondent.

SO ORDERED.

G.R. No. 157249 November 28, 2003

HOMER T. SAQUILAYAN,                    Petitioner,-versus-  COMMISSION ON ELECTIONS AND OSCAR JARO,            Respondents.   D E C I S I O N

AZCUNA, J.:

The present Petition for Certiorari under Rule 65 of the Rules of Court, seeks a reversal of the resolution of Commission on Elections (Comelec) en banc, which ordered the Presiding Judge of the Regional Trial Court (RTC) of Imus, Cavite[1] to proceed with the hearing of the election protest filed by Oscar Jaro (Jaro) against Homer T. Saquilayan (Saquilayan).  

The facts are not disputed.

Petitioner Saquilayan and respondent Jaro were candidates for the Office of Municipal Mayor of Imus, Cavite in the May 14, 2001 local elections. After the votes were canvassed, Saquilayan was proclaimed the winner for having received 27,494 votes against Jaro's 26,746 votes. 

On May 28, 2001, Jaro instituted an Election Protest Case (EPC No. 01-02) before the RTC of Imus, Cavite contesting the results in all 453 election precincts in the Municipality of Imus. Saquilayan filed his Answer with Motion to Dismiss contending, among other things, that the election protest failed to state a cause of action. The Motion to Dismiss was denied by the RTC in an Order dated July 31, 2001. 

Saquilayan questioned the denial before the Comelec's Second Division through a petition for certiorari and prohibition, which was docketed as SPR No. 19-2001. On January 22, 2002, the Second Division ruled in favor of Saquilayan and ordered the dismissal of the election protest. 

Jaro sought a reconsideration of the order of dismissal and the case was elevated to the Comelec en banc. On February 26, 2003, the Comelec en banc issued the questioned resolution granting Jaro's Motion for Reconsideration. Saquilayan's petition was thereunder dismissed and EPC No. 01-02 was ordered to proceed. 

Aggrieved, Saquilayan filed the present petition.

The whole the controversy revolves around the following averments contained in Jaro' election protest:

Grounds for the Protest

6. Protestant hereby impugns the correctness of the results reflected in the election returns in ALL the 453 protested precincts of the Municipality of Imus, Cavite on the following grounds: 

7.1. Votes in the ballots lawfully and validly cast in favor of protestant were deliberately misread and/or misappreciated by various chairmen of the different boards of election inspectors; 

7.2. Valid votes of protestant were intentionally or erroneously counted or tallied in the election returns as votes of protestee;

7.3. Valid votes legally cast in favor of protestant were considered stray;

7.4. Ballots containing valid votes for protestant were intentionally and erroneously misappreciated or considered as marked and declared as null and void; 

7.5. Ballots with blank spaces in the line for Mayor were just read and counted in favor of protestee;

7.6. Ballots prepared by persons other then the voters themselves, and fake or unofficial ballots wherein the name of protestee was written, were illegally read and counted in favor of protestee; 

7.7. Groups of ballots prepared by one (1) person and/or individual ballots prepared by two (2) persons were purposely considered as valid ballots and counted in favor of protestee;

7.8. Votes that were void, because the ballots containing them were posted with stickers or because of pattern markings appearing in them or because of other frauds and election anomalies, were unlawfully read and counted in favor of protestee; and 

7.9. Votes reported in some election returns were unlawfully increased in favor of protestee, such that protestee appeared to have obtained more votes than those actually cast in his favor

The Second Division of the Comelec unanimously ruled that the above allegations failed to state a cause of action, citing as a basis the Court's ruling in Peña v. House of Representatives Electoral Tribunal.[2] In said case, petitioner Teodoro Peña, the losing party in the congressional elections, contested 700 out of 742 election precincts without specifying the precincts where the anomalies allegedly occurred. Furthermore, Peña made only general allegations, to wit:[3] 7. The elections in the precincts of the Second District of Palawan were tainted with massive fraud, widespread vote-buying, intimidation and terrorism and other serious irregularities committed before, during and after the voting, and during the counting of votes and the preparation of election returns and certificates of canvass which affected the results of the election. Among the fraudulent acts committed were the massive vote-buying and intimidation of voters, disenfranchisement of petitioner's known supporters through systematic deletion of names from the list of voters, allowing persons to vote in excess of the number of registered voters, misappreciation, misreading and non-reading of protestant's ballots and other irregularities. 

The Court in that case dismissed the election protest, holding that the failure to make specific mention of the precincts where widespread election fraud and irregularities occurred, and the bare allegations of massive fraud, widespread intimidation and terrorism, without specification and substantiation of where and how these occurrences took place, render the protest fatally defective. As explained by the Court: 

The prescription that the petition must be sufficient in form and substance means that the petition must be more than merely rhetorical. If the allegations contained therein are unsupported by even the faintest whisper of authority in fact and law, then there is no other course than to dismiss the petition, otherwise, the assumption of an elected official may, and always [will,] be held up by petitions of this sort by a losing candidate. However, the Comelec en banc, voting 4-3,[4] ruled that what is applicable to the case is the ruling in Miguel v. Comelec.[5] In the Miguel case, therein respondent Eladio Lapuz filed an election case against James Miguel who defeated the former in the mayoralty race in Rizal, Nueva Ecija. Lapuz questioned the results in all the precincts on the following grounds: a) Rampant switching of ballot boxes and stuffing of ballot boxes with fake ballots;

b) Padding of votes in favor of petitioner;

c) Misappreciation of ballots to the prejudice of private respondent;

d) Counting of illegal and/or marked ballots and stray votes in favor of petitioner;

e) Misreading and mis-tallying of ballots or votes;

f) Massive vote-buying;

g) Substitution of votes;

h) Multiple voting by flying voters and harassment of voters;

i) Massive disenfranchisement;

j) Massive threats, coercion and intimidation of voters.

Therein petitioner Miguel argued that the general allegations of fraud and irregularities were not sufficient to order the opening of ballot boxes and counting of ballots. The Court, however, found the allegations embodied in the election protest to be serious enough to necessitate the opening of the ballot boxes to resolve the issue of fraud and irregularities in the election. 

The facts of the present petition are similar to those in Miguel rather than to those in Peña. In Miguel, there was a controversy between two candidates for municipal mayor, while Peña dealt with candidates for a congressional district office. Also, one reason that led to the dismissal of the election protest in Peña was the protestant's failure to specify the

700 out of the 743 precincts where the alleged anomalies occurred. In both Miguel and the present petition, the protestants questioned all the precincts in their respective municipalities

Furthermore, the Miguel case, being the more recent decision, should prevail in case of a conflict, under the well-established doctrine that a later judgment supersedes a prior one in case of an inconsistency.[6]

In closing, the Court reiterates its pronouncement in Carlos v. Angeles:[7]

Election contests involve public interest, and technicalities and procedural barriers should not be allowed to stand if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials. Laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections. In an election case, the court has an imperative duty to ascertain by all means within its command who is the real candidate elected by the electorate. The Supreme Court frowns upon any interpretation of the law or the rules that would hinder in any way not only the free and intelligent casting of the votes in an election but also the correct ascertainment of the results. 

No doubt, allowing the election protest to proceed would be the best way of removing any doubt as to who was the real candidate chosen by the electorate. Barring the proceedings due to technicalities and procedures accomplishes nothing except possibly to suppress the will of the majority. 

WHEREFORE, in view of the foregoing, the petition is hereby DISMISSED and the Resolution of the Comelec en banc in SPR No. 19-2001 is AFFIRMED.

No pronouncement as to costs. SO ORDERED. 

G.R. No. 160130             April 14, 2004

ISIDRO IDULZA and GODOFREDO CABANA, petitioners, vs.COMMISSION ON ELECTIONS and TERESITA A. BOLLOZOS, REY L. MORTIZ, MIGUEL P. PADERANGA, JOJAC Q. ASUNCION and CIFERINO L. GARCIA, JR.,respondents.

RESOLUTION

TINGA, J.:

An election protest was filed by three unsuccessful candidates for seats in the Sangguniang Panglungsod of Gingoog City, directed at three proclaimed candidates. The COMELEC found merit in the protest and ordered the protestees to vacate their posts. In reviewing the COMELEC’s actions, the Court is guided by two principles particular to election cases: the recognition of the COMELEC’s specialized role in the supervision of elections, and the liberal construction of election laws to the end that the will of the people may not be defeated by mere technical objections.

On 17 May 2001, petitioners Isidro Idulza ("Idulza") and Godofredo Cabana ("Cabana") were proclaimed as the seventh (7th) and eighth (8th) winning candidates for the office of members of the Sangguniang Panglungsod of Gingoog City. Private respondents Miguel Paderanga ("Paderanga"), Jojac Asuncion ("Asuncion"), and Ciferino L. Garcia, Jr. ("Garcia"), all losing candidates for the same office, filed an election protest with the COMELEC on 25 May 2001, against the two petitioners therein and Besben Maquiso ("Maquiso"), who had placed ninth (9th) in the canvass results. The election protest was docketed as COMELEC Case No. EPC 2001-3. After conducting the revision of ballots, the COMELEC Second Division ("Second Division") on 16 January 2003 promulgated a Resolution that settled the election protest at that point. It determined that the parties garnered the following number of votes:

PROTESTANTS:Paderanga - 17,260

Asuncion - 16,567Garcia - 16,502PROTESTEES:Idulsa - 16,013Maquiso - 16,266

Cabana - 16,2661

At the same time, the Second Division determined that one Rey Y. Mortiz ("Mortiz"), who was not a party to the election protest, had garnered more votes than the three protestants. Apparently, per the Certificate of Canvass, Mortiz had placed tenth (10th) in the city council election, though he had not been impleaded in the protest as he was a party-mate of the protestants.2

Consequently, the Second Division disposed of the election protest in this wise:

WHEREFORE, the instant protest is hereby GRANTED.

Protestants Paderanga, Asuncion and Garcia are hereby declared winners and councilors-elect of Gingoog City, in the following order:

1. 8th place – Miguel P. Paderanga

2. 9th place – Jojac Q. Asuncion

3. 10th place – Ceferino (sic) L. Garcia, Jr.

As a consequence of the final numerical results of the votes obtained by the winning candidates vis-à-vis the number of those authorized to be elected, Rey Y. Mortiz, who garnered more votes than the three Protestants herein, wins the seventh (7th) rank in the City Council.

Protestees Isidro Idulsa, Besben Maquiso, and Godofredo Cabana are hereby ordered to vacate their positions as Councilors No. 7, 8 and 9 in the City Council, Gingoog City.

SO ORDERED.3

Obviously aggrieved, the protestees, filed a Motion for Reconsideration before the COMELEC En Banc on 21 January 2003. Aside from contesting the Second Division’s appreciation of the contested ballots, the petitioners also specifically questioned the proclamation of Mortiz, who was not a party to the election protest. Petitioners also noted therein that Asuncion and Garcia had filed certificates of candidacy for Punong Barangay and Barangay Kagawad respectively in the 15 July 2002 barangay elections, and Asuncion was elected. As a result, it was argued, Asuncion and Garcia should be deemed to have abandoned their election protest.4

On 17 February 2003, before the COMELEC En Banc had resolved the Motion for Reconsideration, private respondent Teresita A. Bollozos ("Bollozos"), who was not a party to the election protest, filed a Motion for Leave to Intervene in `COMELEC Case No. EPC 2001-3, with her Motion for Intervention appended thereto. She alleged therein that she too was a losing candidate for the Gingoog City Sanggunian, yet her vote total according to the records had surpassed the number of votes ascribed to Asuncion and Garcia.5She therefore asserted that she should have been proclaimed as the ninth (9th) winning candidate in lieu of Asuncion, who should have placed tenth (10th) instead.

On 18 September 2003, the COMELEC En Banc issued a Resolution partially affirming the Second Division’s Resolution. It held that the Second Division committed no reversible error as to the appreciation of the contested ballots, and in declaring Mortiz as the seventh (7th) place councilor. However, the COMELEC also considered Bollozos’ claim as meritorious, as according to it, "[r]ecords reveal that Bollozos garnered a total of seventeen thousand twenty-three (17,023) votes…, clearly outnumbering [Asuncion’s] 16,567 votes and [Garcia’s] 16,502 votes."6 Bollozos’ Motion for Intervention was thus granted, and Bollozos was proclaimed as the ninth (9th) place candidate. At the same time, the COMELEC En Banc also ruled that Asuncion should not be proclaimed, as he has been deemed to have abandoned his protest due to his successful candidacy for Punong Barangay in the 15 July 2002 elections. Accordingly, the tenth (10th) place was declared vacant.

Petitioners now come before this Court on a Petition for Certiorari, assailing the Resolutions of the COMELEC. They assert that the COMELEC committed grave abuse of discretion in proclaiming Mortiz and Bollozos, the former having no participation in the election protest, while the latter having filed her motion for intervention beyond the period provided by law.7 They also question the manner of appreciation by the COMELEC of the contested ballots.8 Finally, they applied for a Temporary Restraining Order, which the Court has not granted.

The appreciation of contested ballots and election documents involves a question of fact best left to the determination of the COMELEC, a specialized agency tasked with the supervision of elections all over the country.9 The findings of fact of the COMELEC when supported by substantial evidence are final and non-reviewable.10 Petitioners want this Court to review the specific appreciation by the Second Division of ballots cast in forty-eight (48) precincts in Gingoog City. The bar for this manner of review is quite high, considering that the Court is not a trier of

facts. Yet before this Court, petitioners merely direct us to examine the contrary conclusions made by Commissioner Florentino Tuason in his dissenting opinion, without particularly explaining why we should substitute the findings of one commissioner in lieu of those of the COMELEC speaking as a collegial body.

An examination of the Tuason dissent reveals that it is predicated not on any broad question of law, but on the specific application of principles of election law vis-à-vis particular ballots. His disagreement with the majority is purely factual in basis, too detailed to the point of being pernickety. On the other hand, the thirty (30)-page majority opinion is just as detailed in providing for the general principles applicable in appreciating the ballots, and in explaining why each particular contested ballot was interpreted in the particular way that it was. Petitioners are unable to point out why the COMELEC committed grave abuse of discretion in the appreciation of the contested ballots. Notwithstanding the dissenting opinion, the Second Division’s factual findings, as affirmed by the COMELEC En Banc, are supported by substantial evidence and thus beyond the ken of review by the Court.

Thus, the Court is bound by the findings of the COMELEC as to how many votes the parties had obtained in the city council election. The COMELEC had also noted that Mortiz, who had originally placed tenth (10th), has become the seventh (7th) placer, considering that his original vote total still surpassed that of the protestants. We are unable

to see how such declaration by the COMELEC could constitute grave abuse of discretion, even if Mortiz had not been a party to the election protest. He was not a losing candidate elevated into victory, as he apparently was already proclaimed a duly elected city councilor in May of 2001.11 The petitioners were dislodged from their respective seats because the private respondents garnered more votes than them. Mortiz’s vote total remained unchanged despite the protest. His elevation to seventh (7th) place is but a necessary consequence of the finding of the COMELEC that the petitioners had actually obtained less number of votes than as reflected in the first canvass results. It would be patently ridiculous for the Court or the COMELEC to hold that he should still be deemed as the tenth (10th) placer when the amended vote totals reveal that he had garnered more votes than the new eighth (8th) placer. Presumptively, the vote totals as amended after the revision more accurately reflect the true will of the voters of Gingoog City, and the elevation of councilor Mortiz from tenth (10th) to seventh (7th) place is in consonance

with the electoral mandate.

Election protests are guided by an extra-ordinary rule of interpretation that statutes providing for election contests are to be liberally construed to the end that the will of the people in the choice of public officers may not be defeated by mere technical objections.12 For that reason, the Court sustains the allowance by the COMELEC of BollozosIntervention. It would have been explicitly anomalous had Bollozos not been seated in the City Council, considering that her uncontested vote total had exceeded that of Asuncion, the ninth (9th) placer according to the Second Division. The people of Gingoog City had chosen Bollozos to serve as their councilor, and it was but proper for the COMELEC to recognize that electoral will and accordingly amend the Second Division’s Resolution.

Besides, in allowing the Bollozos Intervention, the COMELEC did not stretch itself by applying an overarching equitable principle that would have disturbed the judicially sedate. Statutory prescription on the right to intervene in an election protest is provided only by the COMELEC Rules of Procedure, particularly Rule 8, Section 1. The aforementioned rule does state that the motion for intervention be filed before or during the trial of an action or proceeding.13 At the same time, the COMELEC Rules of Procedure are to be construed liberally "in order to promote the effective and efficient implementation of the objectives of ensuring the holding of free, orderly, honest, peaceful and credible elections and to achieve just, expeditious and inexpensive determination and disposition of every action and proceeding" before the COMELEC.14 The allowance of the motion for intervention was clearly geared towards fostering honest, credible elections and a just outcome centered around the proper proclamation of a candidate whom the voters have chosen to serve as their councilor.

Admittedly, the Rules of Court provides that a motion to intervene be filed at any time before rendition of judgment of the trial court.15 However, the suppletory role of the Rules of Court in this case must be dispensed with if its application would frustrate the electoral will. Further, as the Solicitor General points out in his Comment filed in behalf of the COMELEC, the Court has, in exceptional cases, allowed intervention notwithstanding the rendition of judgment by the trial court16, or even after the case had become final and executory.17 The Court is not ordinarily predisposed, on account of broad claims of equity, to disregard infractions of procedural rules. Yet election cases are of such an exceptional character that the supervening State interest is to ensure that the true results of its elections are given efficacy. We

find that the COMELEC’s grant of the BollozosIntervention is in accord with this superior principle which is grounded on the imperative to seek and make the sovereign will of the people prevail.

Finally, none of the parties question the COMELEC En Banc’s declaration of vacancy of the tenth (10th) seat in the Sangguniang Panglungsod of Gingoog City on the premise that the tenth (10th) placer Asuncion’s subsequent active candidacy and election as Punong Barangay should be deemed an abandonment of his protest. In so holding, the COMELEC En Banc cited the Court’s majority opinion in the case of Defensor-Santiago v. Ramos.18 The parties adduced no compelling reason for the Court to disturb this conclusion of the COMELEC. At the same time, the eleventh (11th) placer Garcia cannot be elevated to the tenth (10th) spot, for the simple reason that the electorate of Gingoog City did not elect him as one of the ten (10) city councilors.19

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

G.R. No. 181528               October 2, 2009

HECTOR T. HIPE, Petitioner, vs.COMMISSION ON ELECTIONS and MA. CRISTINA L. VICENCIO, Respondents.

D E C I S I O N

VELASCO, JR., J.:

The Case

Before us is a Petition for Certiorari and Prohibition under Rule 64, in relation to Rule 65, of the Rules of Court seeking to nullify and enjoin the implementation of the January 30, 2008 Resolution1 issued by the Commission on Elections (COMELEC) En Banc, which affirmed the July 11, 2007 Resolution2 issued by its Second Division.

The Facts

Petitioner Hector T. Hipe and respondent Ma. Cristina L. Vicencio were candidates for the mayoralty post in Catubig, Northern Samar in the May 14, 2007 elections. During the canvass proceedings of the Municipal Board of Canvassers of Catubig, Northern Samar (MBOC), Vicencio petitioned for the exclusion of seven election returns of Precinct Nos. 0037B, 0052A, 0053A, 0058A, 0080A, 0081A and 0082A on the grounds that they were prepared under duress, threats, intimidation or coercion; and that the election was marred by massive vote buying, widespread coercion, terrorism, threats, and intimidation, preventing voters from voting, so that the said returns did not reflect the will of the electorate.3 In support of the said petition for exclusion, Vicencio presented affidavits of some of the members of the Board of Election Inspectors, a sample ballot and an ISO Assessment.4

On May 19, 2007, the MBOC ruled in favor of Vicencio and excluded the seven election returns adverted to. On the same day, petitioner Hipe filed a notice of appeal. Thereafter, on May 29, 2007, petitioner Hipe filed his Verified Appeal with the COMELEC, docketed as SPC No. 07-206 entitled "In the Matter of the Petitions to Exclude Election Returns, Hector T. Hipe vs. Ma. Cristina L. Vicencio," arguing that the written petition to exclude the election returns was filed out of time, and that the grounds used to exclude the questioned returns were not proper for a pre-proclamation controversy, were not supported by credible evidence, and were beyond the jurisdiction of the MBOC.5

In a July 11, 2007 Resolution,6 the Second Division of COMELEC dismissed the appeal for being filed out of time. As stated in the dispositive portion of the said Resolution:

WHEREFORE, premises considered, the instant Verified Appeal is hereby dismissed for being filed out of time.

SO ORDERED.7

Subsequently, on July 17, 2007, petitioner Hipe filed a Motion for Reconsideration.8 On even date, respondent Vicencio was proclaimed as the mayor.9 On January 30, 2008, the COMELEC En Banc resolved to deny petitioner Hipe’s Motion for Reconsideration.10

In the challenged Resolution,11 the COMELEC En Banc held that the ruling of the MBOC had already attained finality considering that the filing of the Verified Appeal with the COMELEC was five days late. It stated that the filing of the Verified Appeal should have been made within the inextendible period of five days from the filing of the written and verified notice of appeal with the MBOC, with which petitioner Hipe failed to comply. Further, the COMELEC En Banc held that it was already deprived of proper jurisdiction to entertain the instant case since the case should no longer be considered as a pre-proclamation controversy, but should rather be ventilated in an election protest. In addition, the COMELEC En Banc stated that the ruling of the MBOC was amply supported by the affidavits of the Members of the Board of Election Inspectors, and that the MBOC retained sufficient discretion to avail itself of all available means to ascertain the results of the elections through witnesses, as well as through an examination of the election returns themselves.

The dispositive portion of the January 30, 2008 Resolution reads:

WHEREFORE, premises considered, the Commission (En Banc) RESOLVED as it hereby RESOLVES, to deny the instant Motion for Reconsideration filed by Appellant-Movant Hector Hipe. The questioned Resolution dated July 11, 2007, issued by the Second Division of the Commission on Elections for the exclusion of seven (7) election returns in favor of the appellee, Maria Cristina L. Vicencio, therefore, stands and remains valid.

SO ORDERED.12

Aggrieved, Hipe filed this petition.

The Issue

Whether or not the COMELEC En Banc acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its challenged Resolution dated January 30, 2008, which affirmed the Resolution dated July 11, 2007 issued by its Second Division dismissing petitioner Hipe’s appeal for being filed out of time.

Our Ruling

The petition is partly meritorious.

Appeal Should Be Given Due Course

In its En Banc Resolution, the COMELEC held that the ruling of the MBOC had already become final and executory; and thus, its Second Division had not acquired appellate jurisdiction to act on Hipe’s verified appeal. In support of its ruling, the COMELEC En Banc relied on the Certification issued by Renato I. Madronio, Acting Election Officer II, Catubig, Northern Samar, attesting that hard or printed copies of the MBOC’s ruling to exclude the seven contested election returns were received by Atty. V.B. Desales, counsel for the KAMPI-Liberal Party Coalition, at 10:37 p.m. on May 19, 2007 at the provincial Election Supervisor’s Office.13 On this basis, the COMELEC En Banc opined that when petitioner Hipe filed the Verified Appeal on May 29, 2009, said filing was already five days late and should no longer be entertained.

We disagree. Indeed, there is a disputable presumption that official duty has been regularly performed;14 and that, corollary thereto, it is presumed that in its disposition of the contested election returns, the MBOC has regularly performed its official duty of issuing a written ruling on the prescribed form, authenticated by the signatures of its members as required under Section 20(d) of Republic Act No. 7166.15 In fact, the alleged issuance and service upon the supposed counsel of petitioner Hipe of the written ruling of MBOC was even supported by the aforementioned Certification of the Chairperson of the MBOC.

The records would, however, reveal that Atty. Venerando B. Desales, the counsel who was supposedly furnished the alleged written ruling of the MBOC, has denied under oath that he ever received a copy of the alleged written ruling.16 He even categorically denied in his Affidavit that he was the counsel of petitioner Hipe.17

Notably, nothing in the Status of Canvass Report18 or in the Minutes of the Proceedings of the MBOC on May 19, 200719 showed that a written ruling on the petition for exclusion has been rendered by the MBOC or received by petitioner Hipe.

On the contrary, a perusal of the Minutes of the Proceedings of the MBOC on May 19, 2007 would reveal that Election Officer Madronio even notified the counsels of petitioner Hipe that, as of that time, the Municipal COMELEC Office still did not have the prescribed form of the ruling, and that they would still have to get the prescribed forms in Catarman.20 This militates against Madronio’s statement in his Certification that hard or printed copies of the ruling of the MBOC were furnished to Atty. Desales on that same day.

When a plaintiff’s case depends upon the establishment of a negative fact, and the means of proving the fact are equally within the control of each party, then the burden of proof is upon the party averring the negative fact.21

In the case at bar, petitioner Hipe asserted the negative fact, that is, that no copy of the written ruling of the MBOC was sent to him or his counsel. Thus, petitioner Hipe has the burden of proof to show that he was not furnished with a copy of the written ruling of the MBOC, which he was able to successfully prove in the instant case. Be that as it may, it then becomes incumbent upon respondent Vicencio to prove otherwise. This is because the burden of evidence is shifted if the party upon whom it is lodged was able to adduce preponderant evidence to prove its claim.22

Significantly, other than Madronio’s statement in his Certification that hard or printed copies of the ruling of the MBOC were furnished to Atty. Desales on May 19, 2007, no other evidence was adduced by respondent Vicencio to support her claim. If indeed such written ruling exists and was indeed furnished to petitioner Hipe or his alleged counsel, it would have been very easy for respondent Vicencio to produce a copy of the written ruling with the signature of petitioner Hipe or his counsel, which she failed to do in the instant case.1avvph!1

Furthermore, the COMELEC has the discretion to construe its rules liberally and, at the same time, suspend the rules or any of their portions in the interest of justice.23 As aptly stated by Commissioner Rene V. Sarmiento in his Dissenting Opinion:24

It is well settled that election laws should be reasonably and liberally construed to achieve their purpose – to effectuate and safeguard the will of the electorate in the choice of their representatives. The courts frown upon any interpretation that would hinder in any way not only the free and intelligent casting of votes in any election but also the correct ascertainment of the results thereof.

Disputes in the outcome of elections involve public interest. Technicalities and procedural barriers should not be allowed to stand if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials. Laws governing such disputes must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technicalities. Hence, it is submitted that there is a need to suspend the procedural rules and resolve the merits of the case to promote justice and safeguard the will of the electorate of Catubig, Northern Samar.

Accordingly, the COMELEC should have not dismissed the appeal filed by petitioner Hipe on the ground of belated filing.

The Exclusion of the Seven Election ReturnsWas Amply Supported by Evidence

Nevertheless, even if we entertain petitioner Hipe’s appeal from the decision of the MBOC on the questioned election returns, the Court still rules in favor of respondent Vicencio.

Petitioner Hipe claims that no proof was presented nor was there any showing that the seven election returns in question were defective.25 Such contention is not persuasive.

The COMELEC, after a judicious evaluation of the documents on record, upheld the findings of the MBOC to exclude the subject election returns on the basis of the affidavits of the members of the Board of Election Inspectors. What exactly these documents and evidence are upon which the COMELEC based its resolution, and how they have been appreciated in respect of their sufficiency, are beyond this Court’s scrutiny.26 The rule that factual findings of administrative bodies will not be disturbed by courts of justice except when there is absolutely no evidence or no substantial evidence in support of such findings should be applied with greater force when it concerns the COMELEC, as the framers of the Constitution intended to place the COMELEC—created and explicitly made independent by the Constitution itself—on a level higher than statutory administrative organs.27The factual finding of the COMELEC is, therefore, binding on the Court. As found by the COMELEC En Banc:

Besides, we do not agree that the exclusion of the seven (7) election returns in question were not supported by any iota of evidence. This is amply supported by the affidavits of the Members of the Board of Election Inspectors; they were all made in clear and unequivocal language by public officers who are presumed to have performed such duties in the ordinary and regular execution thereof. A careful re-examination of the evidence on record reveals that there is sufficient justification to uphold the MBOC ruling to exclude the subject election returns. The MBOC retains sufficient discretion to avail itself of all available means to ascertain the results of the elections through

witnesses as well as examination of the election returns themselves. Where there is no abuse of discretion the MBOC is presumed to have acted within its powers and its decision should be treated with some amount of respect.28

This is especially true in the instant case considering that, as noted by the COMELEC En Banc in its questioned Resolution, one of the witnesses petitioner Hipe previously presented later on recanted her testimony and admitted that she had made her previous statement as to the regularity of the conduct of the May 14, 1007 elections only out of fear due to threats upon her person.29 As correctly observed by the COMELEC En Banc:

We also note that even one of the witnesses presented by the appellant, Melanie Robion, Chairman of the BEI for precinct No. 0037B, later on recanted her testimony. This spells doom to the appellant’s cause as it even impacts on the veracity and truthfulness of the other affidavits that the appellant submitted. We are reminded of the legal principle that a falsity in one is a falsity in all, "Falsus in Onum, Falsus in Omnibus" and would now be more inclined to believe the assertions made by the appellee instead of those presented by the appellant, who has now been unmasked to have been less than truthful at one time or another.30

Considering the foregoing discussion, there is ample evidence to support the findings of the COMELEC that the seven election returns in question should be excluded. The contention of petitioner Hipe that said election returns were excluded from the canvass merely on the basis of pure procedural technicalities is, therefore, unfounded.

Respondent Vicencio Substantially Complied with theRequirement that Objections Be Made in Writing

Petitioner Hipe contends that the written petition to exclude the election returns was filed beyond the prescribed time or almost 24 hours after the oral petition to exclude was manifested by the counsels of respondent Vicencio; hence, the latter’s objections were raised out of time.31

This contention is without merit.

While the records reveal that respondent Vicencio manifested her oral objections on May 15, 2007 at around 7:00 p.m.,32 filed the written objections on May 16, 2007 at 6:40 p.m., and submitted the documentary evidence in support of the protest at 2:45 p.m. only on the following day, the Court nevertheless considers the foregoing acts of Vicencio as substantial compliance with the requirement that objections be reduced into writing.

In Marabur v. COMELEC,33 we held that while respondent failed to submit his written objections, respondent’s submission of his formal offer of evidence, including the evidence itself, within the prescribed period constituted substantial compliance with the requirement that objections be reduced into writing.

Notably, the relaxation of the rules becomes all the more necessary in the instant case, considering that respondent Vicencio has even filed his written objections within the prescribed period; and soon thereafter, the documentary evidence in support of the written objections.

Technicalities and procedural barriers should not be allowed to stand in the way if they constitute an obstacle to the determination of the electorate’s true will in the choice of its elective officials.34

It should be borne in mind that the object of the canvass is to determine the result of the elections based on the official election returns. In order that the result of the canvass would reflect the true expression of the people’s will in the choice of their elective officials, the canvass must be based on true, genuine, correct––nay, untampered––election returns.35 It is in these proceedings that the COMELEC exercises its supervisory and administrative power in the enforcement of laws relative to the conduct of elections, by seeing to it that the canvass is based on the election returns as actually certified by the members of the board of inspectors.36

Taking into consideration the findings of the COMELEC En Banc that there was ample evidence to support the exclusion of the seven election returns in question based on the grounds raised by respondent Vicencio, this should suffice in upholding the latter’s proclamation, absent a finding of grave abuse of discretion on the part of the COMELEC En Banc, in order not to frustrate the electorate’s will.

WHEREFORE, the petition is PARTLY GRANTED. The January 30, 2008 COMELEC En Banc Resolution and the July 11, 2007 COMELEC Second Division Resolution are hereby SET ASIDE insofar as they dismissed petitioner Hipe’s appeal. The January 30, 2008 COMELEC En Banc Resolution is, however, AFFIRMED insofar as it declared the exclusion of the seven election returns of Precinct Nos. 0037B, 0052A, 0053A, 0058A, 0080A, 0081A and 0082A to be valid.

SO ORDERED.

G.R. No. 180917               April 23, 2010

ATTY. VICENTE E. SALUMBIDES, JR., and GLENDA ARAÑA, Petitioners, 

vs.OFFICE OF THE OMBUDSMAN, RICARDO AGON, RAMON VILLASANTA, ELMER DIZON, SALVADOR ADUL, and AGNES FABIAN, Respondents,

D E C I S I O N

CARPIO MORALES, J.:

Petitioners Vicente Salumbides, Jr. (Salumbides) and Glenda Araña (Glenda) challenge the October 11, 2007 Decision and the December 13, 2007 Resolution of the Court of Appeals1 in CA-G.R. SP No. 96889 affirming the Office of the Ombudsman's decision finding them guilty of Simple Neglect of Duty.

Salumbides and Glenda were appointed in July 2001 as Municipal Legal Officer/Administrator and Municipal Budget Officer, respectively, of Tagkawayan, Quezon.

Towards the end of 2001, Mayor Vicente Salumbides III (the mayor) saw the urgent need to construct a two-classroom building with fence (the projects) for the Tagkawayan Municipal High School2 (TMHS) since the public school in the poblacion area would no longer admit high school freshmen starting school year 2002-2003. On how to solve the classroom shortage, the mayor consulted Salumbides who suggested that the construction of the two-classroom building be charged to the account of the Maintenance and Other Operating Expenses/ Repair and Maintenance of Facilities (MOOE/RMF) and implemented "by administration," as had been done in a previous classroom building project of the former mayor.

Upon consultation, Glenda advised Salumbides in December 2001, that there were no more available funds that could be taken from the MOOE/RMF, but the savings of the municipal government were adequate to fund the projects. She added, however, that the approval by the Sangguniang Bayan of a proposed supplemental budget must be secured.

The members of the Sangguniang Bayan having already gone on recess for the Christmas holidays, Glenda and Salumbides advised the mayor to source the funds from the P1,000,000 MOOE/RMF allocation in the approved Municipal Annual Budget for 2002.3

The mayor thus ordered on January 8, 2002 Municipal Engineer Jose Aquino (Aquino) to proceed with the construction of the projects based on the program of work and bill of materials he (Aquino) prepared with a total cost estimate of P222,000.

Upon advice of Municipal Planning and Development Officer Hernan Jason (Jason), the mayor included the projects in the list of local government projects scheduled for bidding on January 25, 2002 which, together with the January 31, 2002 public bidding, failed.

The mayor was to admit later his expectation or assumption of risk on reimbursement:

x x x It was my thinking that even if a bidder emerges and gets these 2 projects which were at the time on-going (although it was also my thinking then that no bidder would possibly bid for these 2 projects as these were cost-estimated very low-P150,000 for the 2-room school building P72,000 for the fencing) he (bidder) would be reasonable enough to reimburse what I had so far spen[t] for the project. I said "I" because up to the time of the failed 2 biddings I have shouldered the "vale" of the laborers and I requisitioned some materials on credit on my own personal account, and not a single centavo was at the time disbursed by our municipal treasury until all requirements for negotiated purchase of the materials for the project had been accomplished. As a matter of fact,payments for the expenses on these 2 projects have been made only starting 19 March 2002. x x x4 (underscoring supplied)

The construction of the projects commenced without any approved appropriation and ahead of the public bidding. Salumbides was of the opinion that the projects were regular and legal, based on an earlier project that was "implemented in the same manner, using the same source of fund and for the same reason of urgency" which was allowed "because the building was considered merely temporary as the TMHS is set to be transferred to an 8-hectare lot which the municipal government is presently negotiating to buy."5

Meanwhile, Aquino suggested to the Sangguniang Bayan the adoption of "model guidelines" in the implementation of infrastructure projects to be executed "by administration," while Councilor Coleta Sandro (Coleta) sponsored a Resolution to ratify the projects and to authorize the mayor to enter into a negotiated procurement. Both actions did not merit the approval of the Sangguniang Bayan.

On May 13, 2002, herein respondents Ricardo Agon, Ramon Villasanta, Elmer Dizon, Salvador Adul and Agnes Fabian, all members of the Sangguniang Bayan of Tagkawayan, filed with the Office of the Ombudsman a complaint6 against Salumbides and Glenda (hereafter petitioners), the mayor, Coleta, Jason and Aquino.

The administrative aspect of the case, docketed as Case No. OMB-L-A-02-0276-E, charged petitioners et al. with Dishonesty, Grave Misconduct, Gross Neglect of Duty, Conduct Prejudicial to the Best Interest of the Service, and violation of the Commission on Audit (COA) Rules and the Local Government Code.

By Order of June 14, 2002, the Office of the Ombudsman, denied the prayer to place petitioners et al. under preventive suspension pending investigation. By Order dated February 1, 2005, approved on April 11, 2005, it denied the motion for reconsideration but dropped the mayor and Coleta, both elective officials, as respondents in the administrative case, the 2004 elections having mooted the case. The parties were thereupon directed to submit their respective verified position papers to which petitioners, Jason and Aquino complied by submitting a consolidated position paper on May 19, 2005.

Meanwhile, in response to the subpoena duces tecum issued by the Office of the Ombudsman on February 18, 2005 requiring the regional officer of the COA to submit the post-audit report on the projects, Celerino Alviar, COA State Auditor II claimed by Affidavit of May 23, 2005 that the required documents were among those razed by fire on April 14, 2004 that hit the Office of the Municipal Accountant where they were temporarily stored due to lack of space at the Provincial Auditor's Office.1avvphi1

On October 17, 2005, the Office of the Ombudsman approved the September 9, 2005 Memorandum absolving Jason and Aquino, and finding petitioners guilty of Simple Neglect of Duty, for which they were meted the penalty of suspension from office for a maximum period of six months with a stern warning against a similar repetition. It also approved on November 2, 2006 the March 27, 2006 Order7 denying the motion for reconsideration.

Their recourse to the appellate court having failed, petitioners come before this Court via Rule 45 of the Rules of Court.

For non-compliance with the rule on certification against forum shopping, the petition merits outright dismissal. The verification portion of the petition does not carry a certification against forum shopping.8

The Court has distinguished the effects of non-compliance with the requirement of verification and that of certification against forum shopping. A defective verification shall be treated as an unsigned pleading and thus produces no legal effect, subject to the discretion of the court to allow the deficiency to be remedied, while the failure to certify against forum shopping shall be cause for dismissal without prejudice, unless otherwise provided, and is not curable by amendment of the initiatory pleading.9

Petitioners' disregard of the rules was not the first. Their motion for extension of time to file petition was previously denied by Resolution of January 15, 200810 for non-compliance with the required showing of competent proof of identity in the Affidavit of Service. The Court, by Resolution of March 4, 2008,11 later granted their motion for reconsideration with motion to admit appeal (Motion with Appeal) that

was filed on February 18, 2008 or the last day of filing within the extended period.

Moreover, in their Manifestation/Motion12 filed a day later, petitioners prayed only for the admission of nineadditional copies of the Motion with Appeal "due to honest inadvertence" in earlier filing an insufficient number of copies. Petitioners were less than candid when they surreptitiously submitted a Motion with Appeal which isdifferent from the first set they had submitted. The second set of Appeal includes specific Assignment of Errors13and already contains a certification against forum shopping14 embedded in the Verification. The two different Verifications were notarized by the same notary public and bear the same date and document number.15 The rectified verification with certification, however, was filed beyond the reglementary period.

Its lapses aside, the petition just the same merits denial.

Petitioners urge this Court to expand the settled doctrine of condonation16 to cover coterminous appointive officials who were administratively charged along with the reelected official/appointing authority with infractions allegedly committed during their preceding term.

The Court rejects petitioners' thesis.

More than 60 years ago, the Court in Pascual v. Hon. Provincial Board of Nueva Ecija17 issued the landmark ruling that prohibits the disciplining of an elective official for a wrongful act committed during his immediately preceding term of office. The Court explained that "[t]he underlying theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor."18

The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When the people elect[e]d a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct[,] to practically overrule the will of the people.19 (underscoring supplied)

Lizares v. Hechanova, et al.20 replicated the doctrine. The Court dismissed the petition in that case for being moot, the therein petitioner "having been duly reelected, is no longer amenable to administrative sanctions."21

Ingco v. Sanchez, et al.22 clarified that the condonation doctrine does not apply to a criminal case.23 Luciano v. The Provincial Governor, et al.,24 Olivarez v. Judge Villaluz,25 and Aguinaldo v. Santos26 echoed the qualified rule that reelection of a public official does not bar prosecution for crimes committed by him prior thereto.

Consistently, the Court has reiterated the doctrine in a string of recent jurisprudence including two cases involving a Senator and a Member of the House of Representatives.27

Salalima v. Guingona, Jr.28 and Mayor Garcia v. Hon. Mojica29 reinforced the doctrine. The condonation rule was applied even if the administrative complaint was not filed before the reelection of the public official, and even if the alleged misconduct occurred four days before the elections, respectively. Salalima did not distinguish as to the date of filing of the administrative complaint, as long as the alleged misconduct was committed during the prior term, the precise timing or period of which Garcia did not further distinguish, as long as the wrongdoing that gave rise to the public official's culpability was committed prior to the date of reelection.

Petitioners' theory is not novel.

A parallel question was involved in Civil Service Commission v. Sojor30 where the Court found no basis to broaden the scope of the doctrine of condonation:

Lastly, We do not agree with respondent's contention that his appointment to the position of president of NORSU, despite the pending administrative cases against him, served as a condonation by the BOR of the alleged acts imputed to him. The doctrine this Court laid down in Salalima v. Guingona, Jr. and Aguinaldo v. Santos are inapplicable to the present circumstances. Respondents in the mentioned cases are elective officials, unlike respondent here who is an appointed official. Indeed, election expresses the sovereign will of the people. Under the principle of vox populi est suprema lex,   the re-election of a public official may, indeed, supersede a pending administrative case. The same cannot be said of a re-appointment to a non-career position.There is no sovereign will of the people to speak of when the BOR re-appointed respondent Sojor to the post of university president.31 (emphasis and underscoring supplied)lawph!l

Contrary to petitioners' asseveration, the non-application of the condonation doctrine to appointive officials does not violate the right to equal protection of the law.

In the recent case of Quinto v. Commission on Elections,32 the Court applied the four-fold test in an equal protection challenge33 against the resign-to-run provision, wherein it discussed the material and

substantive distinctions between elective and appointive officials that could well apply to the doctrine of condonation:

The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.

Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.

x x x x

An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people. It involves the choice or selection of candidates to public office by popular vote. Considering that elected officials are put in office by their constituents for a definite term, x x x complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned. (emphasis and underscoring supplied)

The electorate's condonation of the previous administrative infractions of the reelected official cannot be extended to that of the reappointed coterminous employees, the underlying basis of the rule being to uphold the will of the people expressed through the ballot. In other words, there is neither subversion of the sovereign will nor disenfranchisement of the electorate to speak of, in the case of reappointed coterminous employees.

It is the will of the populace, not the whim of one person who happens to be the appointing authority, that could extinguish an administrative liability. Since petitioners hold appointive positions, they cannot claim the mandate of the electorate. The people cannot be charged with the presumption of full knowledge of the life and character of each and every

probable appointee of the elective official ahead of the latter's actual reelection.

Moreover, the unwarranted expansion of the Pascual doctrine would set a dangerous precedent as it would, as respondents posit, provide civil servants, particularly local government employees, with blanket immunity from administrative liability that would spawn and breed abuse in the bureaucracy.

Asserting want of conspiracy, petitioners implore this Court to sift through the evidence and re-assess the factual findings. This the Court cannot do, for being improper and immaterial.

Under Rule 45 of the Rules of Court, only questions of law may be raised, since the Court is not a trier of facts.34As a rule, the Court is not to review evidence on record and assess the probative weight thereof. In the present case, the appellate court affirmed the factual findings of the Office of the Ombudsman, which rendered the factual questions beyond the province of the Court.

Moreover, as correctly observed by respondents, the lack of conspiracy cannot be appreciated in favor of petitioners who were found guilty of simple neglect of duty, for if they conspired to act negligently, their infraction becomes intentional.35 There can hardly be conspiracy to commit negligence.36

Simple neglect of duty is defined as the failure to give proper attention to a task expected from an employee resulting from either carelessness or indifference.37 In the present case, petitioners fell short of the reasonable diligence required of them, for failing to exercise due care and prudence in ascertaining the legal requirements and fiscal soundness of the projects before stamping their imprimatur and giving their advice to their superior.

The appellate court correctly ruled that as municipal legal officer, petitioner Salumbides "failed to uphold the law and provide a sound legal assistance and support to the mayor in carrying out the delivery of basic services and provisions of adequate facilities when he advised [the mayor] to proceed with the construction of the subject projects without prior competitive bidding."38 As pointed out by the Office of the Solicitor General, to absolve Salumbides is tantamount to allowing with impunity the giving of erroneous or illegal advice, when by law he is precisely tasked to advise the mayor on "matters related to upholding the rule of law."39 Indeed, a legal officer who renders a legal opinion on a course of action without any legal basis becomes no different from a lay person who may approve the same because it appears justified.

As regards petitioner Glenda, the appellate court held that the improper use of government funds upon the direction of the mayor and prior

advice by the municipal legal officer did not relieve her of liability for willingly cooperating rather than registering her written objection40 as municipal budget officer.

Aside from the lack of competitive bidding, the appellate court, pointing to the improper itemization of the expense, held that the funding for the projects should have been taken from the "capital outlays" that refer to the appropriations for the purchase of goods and services, the benefits of which extend beyond the fiscal year and which add to the assets of the local government unit. It added that current operating expenditures like MOOE/RMF refer to appropriations for the purchase of goods and services for the conduct of normal local government operations within the fiscal year.41

In Office of the Ombudsman v. Tongson,42 the Court reminded the therein respondents, who were guilty of simple neglect of duty, that government funds must be disbursed only upon compliance with the requirements provided by law and pertinent rules.

Simple neglect of duty is classified as a less grave offense punishable by suspension without pay for one month and one day to six months. Finding no alleged or established circumstance to warrant the imposition of the maximum penalty of six months, the Court finds the imposition of suspension without pay for three months justified.

When a public officer takes an oath of office, he or she binds himself or herself to faithfully perform the duties of the office and use reasonable skill and diligence, and to act primarily for the benefit of the public. Thus, in the discharge of duties, a public officer is to use that prudence, caution, and attention which careful persons use in the management of their affairs.43

Public service requires integrity and discipline. For this reason, public servants must exhibit at all times the highest sense of honesty and dedication to duty. By the very nature of their duties and responsibilities, public officers and employees must faithfully adhere to hold sacred and render inviolate the constitutional principle that a public office is a public trust; and must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency.44

WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 96889 areAFFIRMED with MODIFICATION, in that petitioners, Vicente Salumbides, Jr. and Glenda Araña, are suspended from office for three (3) months without pay.

SO ORDERED.