COMELEC Until Initiative

8/10/2019 COMELEC Until Initiative

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RENATO L. CAYETANO,petitioner,vs .CHRISTIAN MONSOD

We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issuesare involved, the Court's decision in this case would indubitably have a profound effect on the politicalaspect of our national existence.

The 1987 Constitution provides in Section 1(1), Article IX-C:

"There shall be a Commission on Elections composed of a Chairman and sixCommissioners who shall be natural-born citizens of the Philippines and, at the time of theirappointment, at least thirty-five years of age, holders of a college degree, and must nothave been candidates for any elective position in the immediately preceding elections.However, a majority thereof, including the Chairman, shall be members of the Philippine Barwho have been engaged in the practice of law for at least ten years."(Emphasis supplied)

The aforequoted provision is patterned after Section 1(1), Article XII-C of the 1973 Constitutionwhichsimilarly provides:

"There shall be an independent Commission on Elections composed of aChairman and eight Commissioners who shall be natural-born citizens of thePhilippines and, at the time of their appointment, at least thirty-five years ofage and holders of a college degree. However, a majority thereof, includingthe Chairman, shall be members of the Philippine Bar who have beenengaged in the practice of law for al least ten years."(Emphasis supplied)

Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as alegal qualification to an appointive office.cdphil

Black defines "practice of law" as:

"The rendition of services requiring the knowledge and the application of legalprinciples and technique to serve the interest of another with his consent. It isnot limited to appearing in court, or advising and assisting in the conduct oflitigation, but embraces the preparation of pleadings, and other papersincident to actions and special proceedings, conveyancing, the preparation oflegal instruments of all kinds, and the giving of all legal advice to clients. Itembraces all advice to clients and all actions taken for them in mattersconnected with the law. An attorney engages in the practice of law bymaintaining an office where he is held out to be an attorney, using a letterheaddescribing himself as an attorney, counseling clients in legal matters,

negotiating with opposing counsel about pending litigation, and fixing andcollecting fees for services rendered by his associate." (Black's LawDictionary,3rd ed.).

The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co. v.Dworken,129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the practice of law whenhe:

". . . for valuable consideration engages in the business of advising person,firms, associations or corporations as to their rights under t he law, or appearsin a representative capacity as an advocate in proceedings pending orprospective, before any court, commissioner, referee, board, body, committee,or commission constituted by law or authorized to settle controversies andthere, in such representative capacity performs any act or acts for the purposeof obtaining or defending the rights of their clients under the law. Otherwisestated, one who, in a representative capacity, engages in the business of

advising clients as to their rights under the law, or while so engaged performsany act or acts either in court or outside of court for that purpose, is engaged

in the practice of law." (State ex. rel. Mckittrick v. C.S. Dudley and Co.,102S.W. 2d 895, 340 Mo. 852).

This Court in the case of Philippine Lawyers Association v. Agrava,(105 Phil. 173, 176-177) stated:

"The practice of lawis not limited to the conduct of cases or litigation in court;it embraces the preparation of pleadings and other papers incident to actionsand special proceedings, the management of such actions and proceedingson behalf of clients before judges and courts, and in addition, conveying. Ingeneral, all advice to clients,and all action taken for them inmatters connected with the lawincorporation services, assessment and

condemnation services contemplating an appearance before a judicial body,the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcyand insolvency proceedings, and conducting proceedings in attachment, andin matters of estate and guardianship have been held to constitute lawpractice, as do the preparation and drafting of legal instruments, where thework done involves the determination by the trained legal mind of the legaleffect of facts and conditions." (5 Am. Jr. p. 262, 263). (Emphasis supplied)

"Practice of lawunder modern conditions consists in no small part of workperformed outside of any court and having no immediate relation toproceedings in court. It embraces conveyancing, the giving of legal advice ona large variety of subjects, and the preparation and execution of legalinstruments covering an extensive field of business and trust relations andother affairs.Although these transactions may have no direct connection withcourt proceedings, they are always subject to become involved in litigation .They require in many aspects a high degree of legal skill,a wide experiencewith men and affairs, and great capacity for adaptation to difficult and complexsituations. These customary functions of an attorney or counselor at law bearan intimate relation to the administration of justice by the courts. No validdistinction, so far as concerns the question set forth in the order, can be drawnbetween that part of the work of the lawyer which involves appearance in courtand that part which involves advice and drafting of instruments in his office. Itis of importance to the welfare of the public that these manifold customaryfunctions be performed by persons possessed of adequate learning and skill,of sound moral character, and acting at all times under the heavy trustobligations to clients which rests upon all attorneys." (Moran, Comments onthe Rules of Court,Vol. 3 [1953 ed.], p. 665-666, citing In re Opinion of theJustices[Mass.], 194 N.E. 313, quoted in Rhode Is.Bar Assoc.v.AutomobileService Assoc. [R.I.] 179 A. 139, 144). (Emphasis ours).

The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-1975) listed the dimensions of the practice of law in even broader terms as advocacy, counseling andpublic service.

"One may be a practicing attorney in following any line of employment in theprofession. If what he does exacts knowledge of the law and is of a kind usualfor attorneys engaging in the active practice of their profession, and he followssome one or more lines of employment such as this he is a practicing attorneyat law within the meaning of the statute." (Barr D. Cardell, 155 NW 312).

Practice of law means any activity, in or out of court, which requires the application of law, legalprocedure, knowledge, training and experience. "To engage in the practice of law is to perform thoseacts which are characteristics of the profession. Generally, to practice law is to give notice or renderany kind of service, which device or service requires the use in any degree of legal knowledge or skill."(111 ALR 23).

The following records of the 1986 Constitutional Commission show that it has adopted a liberalinterpretation of the term "practice of law."cdrep


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trends, the necessity of estimating the consequences of given courses ofaction, and the need for fast decision and response in situations of acutedanger have prompted the use of sophisticated concepts of information flowtheory, operational analysis, automatic data processing, and electroniccomputing equipment. Understandably, an improved decisional structure muststress the predictive component of the policy-making process, wherein amodel", of the decisional context or a segment thereof is developed to testprojected alternative courses of action in terms of futuristic effects flowingtherefrom.

Although members of the legal profession are regularly engaged in predicting and projecting

the trends of the law, the subject of corporate finance law has received relatively littleorganized and formalized attention in the philosophy of advancing corporate legaleducation. Nonetheless, a cross-disciplinary approach to legal research has become a vitalnecessity.

Certainly, the general orientation for productive contributions by those trained primarily inthe law can be improved through an early introduction to multi-variable decisional contextsand the various approaches for handling such problems. Lawyers, particularly with either amaster's or doctorate degree in business administration or management, functioning at thelegal policy level of decision-making now have some appreciation for the concepts andanalytical techniques of other professions which are currently engaged in similar types ofcomplex decision-making.

Truth to tell, many situations involving corporate finance problems would require theservices of an astute attorney because of the complex legal implications that arise fromeach and every necessary step in securing and maintaining the business issue raised.(Business Star,"Corporate Finance Law," Jan. 11, 1989, p. 4).

In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogadode campanilla." He is the "big-time" lawyer, earning big money and with a clientelecomposed of the tycoons and magnates of business and industry.

Despite the growing number of corporate lawyers, many people could not explain what it isthat a corporate lawyer does. For one, the number of attorneys employed by a singlecorporation will vary with the size and type of the corporation. Many smaller and some largecorporations farm out all their legal problems to private law firms. Many others have in-house counsel only for certain matters. Other corporation have a staff large enough tohandle most legal problems in-house.

A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs ofa corporation. His areas of concern or jurisdiction may include, inter alia: corporate legalresearch, tax laws research, acting out as corporate secretary (in board meetings),appearances in both courts and other adjudicatory agencies (including the Securities and

Exchange Commission), and in other capacities which require an ability to deal with thelaw.LLjur

At any rate, a corporate lawyer may assume responsibilities other than the legal affairs ofthe business of the corporation he is representing. These include such matters asdetermining policy and becoming involved in management. (Emphasis supplied.)

In a big company, for example, one may have a feeling of being isolated from the action, ornot understanding how one's work actually fits into the work of the organization. This can befrustrating to someone who needs to see the results of his work first hand. In short, acorporate lawyer is sometimes offered this fortune to be more closely involved in the runningof the business.

Moreover, a corporate lawyer's services may sometimes be engaged by a multinational

corporation (MNC). Some large MNCs provide one of the few opportunities available tocorporate lawyers to enter the international law field. After all, international law is practiced

in a relatively small number of companies and law firms. Because working in a foreigncountry is perceived by many as glamorous, this is an area coveted by corporate lawyers. Inmost cases, however, the overseas jobs go to experienced attorneys while the youngerattorneys do their "international practice" in law libraries. (Business Star,"Corporate LawPractice," May 25, 1990, p. 4).

This brings us to the inevitable, i.e., the role of the lawyer in the realm offinance. To borrow the lines of Harvard-educated lawyer Bruce Wassertein, towit: "A bad lawyer is one who fails to spot problems, a good lawyer is one whoperceives the difficulties, and the excellent lawyer is one who surmountsthem." (Business Star,"Corporate Finance Law," Jan. 11, 1989, p. 4).

Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. Nolonger are we talking of the traditional law teaching method of confining the subject study tothe Corporation Code and the Securities Code but an incursion as well into the intertwiningmodern management issues.

Such corporate legal management issues deal primarily with three (3) types of learning: (1)acquisition of insights into current advances which are of particular significance to thecorporate counsel; (2) an introduction to usable disciplinary skills applicable to a corporatecounsel's management responsibilities; and (3) a devotion to the organization andmanagement of the legal function itself.

These three subject areas may be thought of as intersecting circles, with a shared arealinking them. Otherwise known as "intersecting managerial jurisprudence," it forms aunifying theme for the corporate counsel's total learning.

Some current advances in behavior and policy sciences affect the counsel's role. For thatmatter, the corporate lawyer reviews the globalization process, including the resultingstrategic repositioning that the firms he provides counsel for are required to make, and theneed to think about a corporation's strategy at multiple levels. The salience of the nation-state is being reduced as firms deal both with global multinational entities andsimultaneously with sub-national governmental units. Firms increasingly collaborate not onlywith public entities but with each other often with those who are competitors in otherarenas.

Also, the nature of the lawyer's participation in decision-making within the corporation israpidly changing.The modern corporate lawyer has gained a new role as a stockholder in some cases participating in the organization and operations of governance throughparticipation on boards and other decision-making roles. Often these new patterns developalongside existing legal institutions and laws are perceived as barriers. These trends arecomplicated as corporations organize for global operations. (Emphasis supplied).

The practising lawyer of today is familiar as well with governmental policies toward the

promotion and management of technology. New collaborative arrangements for promotingspecific technologies or competitiveness more generally require approaches from industrythat differ from older, more adversarial relationships and traditional forms of seeking toinfluence governmental policies. And there are lessons to be learned from other countries.In Europe, Esprit, Eureka and Race are examples of collaborative efforts betweengovernmental and business Japan's MITI is world famous. (Emphasis supplied)

Following the concept of boundary spanning, the office of the Corporate Counsel comprisesa distinct group within the managerial structure of all kinds of organizations. Effectiveness ofboth long-term and temporary groups within organizations has been found to be related toidentifiable factors in the group-context interaction such as the groups actively revising theirknowledge of the environment, coordinating work with outsiders, promoting teamachievements within the organization. In general, such external activities are betterpredictors of team performance than internal group processes.

In a crisis situation, the legal managerial capabilities of the corporate lawyer

vis-a-vis the managerial mettle of corporations are challenged. Currentresearch is seeking ways both to anticipate effective managerial procedures


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and to understand relationships of financial liability and insuranceconsiderations. (emphasis supplied)

Regarding the skills to apply by the corporate counsel, three factorsare apropos:

First System Dynamics. The field of systems dynamics has been found an effective tool fornew managerial thinking regarding both planning and pressing immediate problems. Anunderstanding of the role of feedback loops, inventory levels, and rates of flow, enableusers to simulate all sorts of systematic problemsphysical, economic, managerial, social,and psychological. New programming techniques now make the systems dynamicsprinciples more accessible to managers including corporate counsels. (Emphasissupplied).

Second Decision Analysis. This enables users to make better decisions involving complexityand uncertainty. In the context of a law department, it can be used to appraise thesettlement value of litigation, aid in negotiation settlement, and minimize the cost and riskinvolved in managing a portfolio of cases. (Emphasis supplied)

Third Modeling for Negotiation Management. Computer-based models can be used directlyby parties and mediators in all kinds of negotiations. All integrated set of such tools providecoherent and effective negotiation support, including hands-on on instruction in thesetechniques. A simulation case of an international joint venture may be used to illustrate thepoint.

[Be this as it may,] the organization and management of the legal function, concern threepointed areas of consideration, thus:

Preventive Lawyering. Planning by lawyers requires special skills that comprise a major partof the general counsel's responsibilities. They differ from those of remedial law. Preventivelawyering is concerned with minimizing the risks of legal trouble and maximizing legal rightsfor such legal entities at that time when transactional or similar facts are being consideredand made.llcd

Managerial Jurisprudence. This is the framework within which are undertaken thoseactivities of the firm to which legal consequences attach. It needs to be directly supportive ofthis nation's evolving economic and organizational fabric as firms change to staycompetitive in a global, interdependent environment. The practice and theory of "law" is notadequate today to facilitate the relationships needed in trying to make a global economywork.

Organization and Functioning of the Corporate Counsel's Office . The general counsel hasemerged in the last decade as one of the most vibrant subsets of the legal profession. Thecorporate counsel hear responsibility for key aspects of the firm's strategic issues, including

structuring its global operations, managing improved relationships with an increasinglydiversified body of employees, managing expanded liability exposure, creating new andvaried interactions with public decision-makers, coping internally with more complex makeor by decisions.

This whole exercise drives home the thesis that knowing corporate law is not enough tomake one a good general corporate counsel nor to give him a full sense of how the legalsystem shapes corporate activities. And even if the corporate lawyer's aim is not tounderstand all of the law's effects on corporate activities, he must, at the very least, alsogain a working knowledge of the management issues if only to be able to grasp not only thebasic legal "constitution" or make-up of the modern corporation. "Business Star,TheCorporate Counsel," April 10, 1991, p. 4).

The challenge for lawyers (both of the bar and the bench) is to have more thana passing knowledge of financial law affecting each aspect of their work. Yet,many would admit to ignorance of vast tracts of the financial law territory.

What transpires next is a dilemma of professional security: Will the lawyer

admit ignorance and risk opprobrium?; or will he feign understanding and riskexposure? (Business Star,"Corporate Finance law," Jar. 11, 1989, p. 4).LLpr

Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position ofChairman of the COMELEC in a letter received by the Secretariat of the Commission on Appointmentson April 25, 1991. Petitioner opposed the nomination because allegedly Monsoddoes not possess therequired qualification of having been engaged in the practice of law for at least ten years.

On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairmanof the COMELEC. On June 18, 1991, he took his oath of office. On the same day, he assumed officeas Chairman of the COMELEC.

Challenging the validity of the confirmation by the Commission on Appointments of Monsod'snomination, petitioner as a citizen and taxpayer, filed the instant petition for Certiorari and Prohibitionpraying that said confirmation and the consequent appointment of Monsod as Chairman of theCommission on Elections be declared null and void.

Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960with a grade of 86.55%. He has been a dues paying member of the Integrated Bar of the Philippinessince its inception in 1972-73. He has also been paying his professional license fees as lawyer formore than ten years. (p. 124, Rollo).

After graduating from the College of Law (U.P.) and having hurdled the bar,Atty.Monsod worked inthe law office of his father.During his stint in the World Bank Group (1963-1970), Monsodworked as anoperations officer for about two years in Costa Rica and Panama, which involved getting acquaintedwith the laws of member-countries, negotiating loans and coordinating legal, economic, and projectwork of the Bank. Upon returning to the Philippines in 1970, he worked with the Meralco Group, servedas chief executive officer of an investment bank and subsequently of a business conglomerate, andsince 1986, has rendered services to various companies as a legal and economic consultant or chiefexecutive officer. As former Secretary-General (1986) and National Chairman (1987) ofNAMFREL. Monsod's work involved being knowledgeable in election law. He appeared for NAMFRELin its accreditation hearings before the Comelec. In the field of advocacy, Monsod, in his personalcapacity and as former Co-Chairman of the Bishops Businessmen's Conference for HumanDevelopment, has worked with the under privileged sectors, such as the farmer and urban poorgroups, in initiating, lobbying for and engaging in affirmative action for the agrarian reform law andlately the urban land reform bill.Monsod also made use of his legal knowledge as a member of theDavide Commission, a quasi-judicial body, which conducted numerous hearings (1990) and as amember of the Constitutional Commission (1986-1987), and Chairman of its Committee onAccountability of Public Officers, for which he was cited by the President of the Commission, JusticeCecilia Muoz-Palma for "innumerable amendments to reconcile government functions with individualfreedoms and public accountability and the party-list system for the House of Representative ."(pp.128-129 Rollo) (Emphasis supplied)

Just a word about the work of a negotiating teamof which Atty. Monsod used to be a member.

In a loan agreement, for instance, a negotiating panel acts as a team, and which isadequately constituted to meet the various contingencies that arise during a negotiation.Besides top officials of the Borrower concerned, there are the legal officer (such as the legalcounsel), the finance manager, and an operations officer (such as an official involved innegotiating the contracts) who comprise the members of the team. (Guillermo V. Soliven,"Loan Negotiating Strategies for Developing Country Borrowers," Staff Paper No. 2, CentralBank of the Philippines, Manila, 1982, p. 11). (Emphasis supplied)

After a fashion, the loan agreement is like a country's Constitution; it lays down the law asfar as the loan transaction is concerned. Thus, the meat of any Loan Agreement can becompartmentalized into five (5) fundamental parts: (1) business terms; (2) borrower'srepresentation; (3) conditions of closing; (4) covenants; and (5) events of default. (Ibid.,p.13)


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In the same vein, lawyers play an important role in any debt restructuringprogram. For aside from performing the tasks of legislative drafting and legaladvising, they score national development policies as key factors inmaintaining their countries' sovereignty. (Condensed from the work paper,entitled "Wanted: Development Lawyers for Developing Nations," submitted byL. Michael Hager, regional legal adviser of the United States Agency forInternational Development, during the Session on Law for the Development ofNations at the Abidjan World Conference in Ivory Coast, sponsored by theWorld Peace Through Law Center on August 26-31, 1973). (Emphasissupplied).

Loan concessions and compromises, perhaps even more so than purely re negotiationpolicies, demand expertise in the law of contracts, in legislation and agreement drafting andin re negotiation. Necessarily, a sovereign lawyer may work with an international businessspecialist or an economist in the formulation of a model loan agreement. Debt restructuringcontract agreements contain such a mixture of technical language that they should becarefully drafted and signed only with the advise of competent counsel in conjunction withthe guidance of adequate technical support personnel. (See International Law Aspects ofthe Philippine External Debts, an unpublished dissertation, U.S.T. Graduate School of Law,1987, p. 321). (Emphasis supplied).

A critical aspect of sovereign debt restructuring/contract construction is the set of terms andconditions which determines the contractual remedies for a failure to perform one or moreelements of the contract. A good agreement must not only define the responsibilities of bothparties, but must also state the recourse open to either party when the other fails todischarge an obligation. For a complete debt restructuring represents a devotion to thatprinciple which in the ultimate analysis is sine qua nonfor foreign loan agreements anadherence to the rule of law in domestic and international affairs of whose kind U.S.Supreme Court Justice Oliver Wendell Holmes, Jr. once said: 'They carry no banners, theybeat no drums; but where they are, men learn that bustle and bush are not the equal ofquiet genius and serene mastery.' (See Ricardo J. Romulo, "The Role of Lawyers in ForeignInvestments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and 4, Third andFourth Quarters, 1977, p. 265).

Interpreted in the light of the various definitions of the term "practice of law", particularly the modernconcept of law practice, and taking into consideration the liberal construction intended by the framersof the Constitution, Atty. Monsod s past work experiences as a lawyer-economist, a lawyer-manager, alawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both therich and the poor verily more than satisfy the constitutional requirement that he has beenengaged in the practice of law for at least ten years.

Besides in the leading case of Luego v. Civil Service Commission,143 SCRA 327, the Court said:prcd

"Appointment is an essentially discretionary powerand must be performed by

the officer in which it is vested according to his best lights, the only conditionbeing that the appointee should possess the qualifications required by law. Ifhe does, then the appointment cannot be faulted on the ground that there areothers better qualified who should have been preferred. This is a politicalquestion involving considerations of wisdom which only the appointingauthority can decide." (emphasis supplied).

No less emphatic was the Court in the case of Central Bank v. Civil Service Commission,171SCRA 744) where it stated:

"It is well-settled that when the appointee is qualified, as in this case, and allthe other legal requirements are satisfied, the Commission has no alternativebut to attest to the appointment in accordance with the Civil Service Law. TheCommission has no authority to revoke an appointment on the ground thatanother person is more qualified for a particular position. It also has noauthority to direct the appointment of a substitute of its choice. To do so would

be an encroachment on the discretion vested upon the appointing authority.An appointment is essentially within the discretionary power of whomsoever it

is vested, subject to the only condition that the appointee should possess thequalifications required by law."(Emphasis supplied).

The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1)nomination; (2) confirmation by the Commission on Appointments; (3) issuance of a commission (in thePhilippines, upon submission by the Commission on Appointments of its certificate of confirmation, thePresident issues the permanent appointment; and (4) acceptance e.g., oath-taking, posting of bond,etc. . . . (Lacson v. Romero,No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200)

The power of the Commission on Appointments to give its consent to the nomination of MonsodasChairman of the Commission on Elections is mandated by Section 1(2) Sub-Article C, Article IX of theConstitution which provides:

"The Chairman and the Commissioners shall be appointed by the Presidentwith the consent of the Commission on Appointments for a term of sevenyears without re appointment. Of those first appointed, three Members shallhold office for seven years, two Members for five years, and the last Membersfor three years, without re appointment. Appointment to any vacancy shall beonly for the unexpired term of the predecessor. In no case shall any Memberbe appointed or designated in a temporary or acting capacity."

Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the practice oflaw is the traditional or stereotyped notion of law practice, as distinguished from the modern concept ofthe practice of law, which modern connotation is exactly what was intended by the eminent framers ofthe 1987 Constitution.Moreover, Justice Padilla's definition would require generally a habitual lawpractice, perhaps practiced two or three times a week and would outlawsay, law practice once or twicea year for ten consecutive years. Clearly, this is far from the constitutional intent.

Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, Imade use of a definition of law practice which really means nothing because the definition says thatlaw practice " . . . is what people ordinarily mean by the practice of law." True I cited the definition butonly by way of sarcasm as evident from my statement that the definition of law practice by "traditionalareas of law practice is essentially tautologous" or defining a phrase by means of the phrase itself thatis being defined.

Justice Cruz goes on to say in substance that since the law covers almost all situations, mostindividuals, in making use of the law, or in advising others on what the law means, are actuallypracticing law. In that sense, perhaps, but we should not lose sight of the fact that Mr. Monsod isalawyer, a member of the Philippine Bar, who has been practicing law for over ten years. This isdifferent from the acts of persons practicing law, without first becoming lawyers.

Justice Cruz also says that the Supreme Court can even disqualify an elected President of the

Philippines, say, on the ground that he lacks one or more qualifications. This matter, I greatly doubt.For one thing, how can an action or petition be brought against the President? And even assuming thathe is indeed disqualified, how can the action be entertained since he is the incumbent President?

We now proceed:

The Commission on the basis of evidence submitted during the public hearings on Monsod'sconfirmation, implicitly determined that he possessed the necessary qualifications as required by law.The judgment rendered by the Commission in the exercise of such an acknowledged power is beyondjudicial interference except only upon a clear showing of a grave abuse of discretion amounting to lackor excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse ofdiscretion is clearly shown shall the Court interfere with the Commission's judgment. In the instantcase, there is no occasion for the exercise of the Court's corrective power, since no abuse, much lessa grave abuse of discretion, that would amount to lack or excess of jurisdiction and would warrant theissuance of the writs prayed, for has been clearly shown.llcd

Additionally, consider the following:


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(1) If the Commission on Appointments rejectsa nominee by the President, may the SupremeCourt reversethe Commission, and thus in effect confirm the appointment? Clearly, the answer is inthe negative.

(2) In the same vein, may the Court reject the nominee, whom the Commission hasconfirmed?Theanswer is likewise clear.

(3) If the United States Senate (which is the confirming body in the U.S. Congress) decides toconfirmaPresidential nominee, it would be incredible that the U.S. Supreme Court would still reverse the U.S.Senate.

Finally, one significant legal maxim is:

"We must interpret not by the letter that killeth, but by the spirit that giveth life."

Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah (whowas Samson's beloved) for help in capturing Samson. Delilah agreed on condition that

"No blade shall touch his skin;

No blood shall flow from his veins."

When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rodburning white-hot two or three inches away from in front of Samson's eyes. This blinded the man.Upon hearing of what had happened to her beloved, Delilah was beside herself with anger, andfuming with righteous fury, accused the procurator of reneging on his word. The procurator calmlyreplied: "Did any blade touch his skin? Did any blood flow from his veins?" The procurator wasclearly relying on the letter, not the spirit of the agreement.

In view of the foregoing, this petition is hereby DISMISSED. SO ORDERED.


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SIXTO S. BRILLANTES, JR.,petitioner,vs .HAYDEE B. YORAC, in her capacity asACTING CHAIRPERSON of the COMMISSION ON ELECTIONS,respondent.

The petitioner is challenging the designation by the President of the Philippines of AssociateCommissioner Haydee B. Yorac as Acting Chairman of the Commission on Elections, in place ofChairman Hilario B. Davide, who had been named chairman of the fact-finding commission toinvestigate the December 1989 coup d' etatattempt.

The qualifications of the respondent are conceded by the petitioner and are not in issue in this case.What is the power of the President of the Philippines to make the challenged designation in view of the

status of the Commission on Elections as an independent constitutional body and the specific provisionof Article IX-C, Section 1(2) of the Constitution that "(I)n no case shall any Member (of the Commissionon Elections) be appointed or designated in a temporary or acting capacity."

The petitioner invokes the case of Nacionalista Party v. Bautista, 85 Phil. 101, where President ElpidioQuirino designated the Solicitor General as acting member of the Commission on Elections and theCourt revoked the designation as contrary to the Constitution. It is also alleged that the respondent isnot even the senior member of the Commission on Elections, being outranked by AssociateCommissioner Alfredo E. Abueg, Jr.cdphil

The petitioner contends that the choice of the Acting Chairman of the Commission on Elections is aninternal matter that should be resolved by the members themselves and that the intrusion of thePresident of the Philippines violates their independence. He cites the practice in this Court, where thesenior Associate Justice serves as Acting Chief Justice in the absence of the Chief Justice. Nodesignation from the President of the Philippines is necessary.

In his Comment, the Solicitor General argues that no such designation is necessary in the case of theSupreme Court because the temporary succession cited is provided for in Section 12 of the JudiciaryAct of 1948. A similar rule is f ound in Section 5 of BP 129 for the Court of Appeals. There is no sucharrangement, however, in the case of the Commission on Elections. The designation made by thePresident of the Philippines should therefore be sustained for reasons of "administrative expediency,"to prevent disruption of the functions of the COMELEC.

Expediency is a dubious justification. It may also be an overstatement to suggest that the operations ofthe Commission on Elections would have been disturbed or stalemated if the President of thePhilippines had not stepped in and designated an Acting Chairman. There did not seem to be any suchproblem. In any event, even assuming that difficulty, we do not agree that "only the President (could)act to fill t he hiatus," as the Solicitor General maintains.

Article IX-A, Section 1, of the Constitution expressly describes all the Constitutional Commissions as"independent." Although essentially executive in nature, they are not under the control of the Presidentof the Philippines in the discharge of their respective functions. Each of these Commissions conducts

its own proceedings under the applicable laws and its own rules and in the exercise of its owndiscretion. Its decisions, orders and rulings are subject only to review oncertiorariby this Court asprovided by the Constitution in Article IX-A, Section 7.

The choice of a temporary chairman in the absence of the regular chairman comes under thatdiscretion. That discretion cannot be exercised for it, even with its consent, by the President of thePhilippines.

A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable atwill. No cause need be established to justify its revocation. Assuming its validity, the designation of therespondent as Acting Chairman of the Commission on Elections may be withdrawn by the President ofthe Philippines at any time and for whatever reason she sees fit. It is doubtful if the respondent, havingaccepted such designation, will not be estopped from challenging its withdrawal.LibLex

It is true, as the Solicitor General points out, that the respondent cannot be removed at will from herpermanent position as Associate Commissioner. It is no less true, however, that she can be replaced

as Acting Chairman, with or without cause, and thus deprived of the powers and perquisites of thattemporary position.

The lack of a statutory rule covering the situation at bar is no justification for the President of thePhilippines to fill the void by extending the temporary designation in favor of the respondent. This is stilla government of laws and not of men. The problem allegedly sought to be corrected, if it existed at all,did not call for presidential action. The situation could have been handled by the members of theCommission on Elections themselves without the participation of the President, however well-meaning.

In the choice of the Acting Chairman, the members of the Commission on Elections would most likelyhave been guided by the seniority rule as they themselves would have appreciated it. In any event, thatchoice and the basis thereof were for them and not the President to make.

The Court has not the slightest doubt that the President of the Philippines was moved only by the bestof motives when she issued the challenged designation. But while conceding her goodwill, we cannotsustain her act because it conflicts with the Constitution. Hence, even as this Court revoked thedesignation in the Bautista case, so too must it annul the designation in the case at bar.

The Constitution provides for many safeguards to the independence of the Commission on Elections,foremost among which is the security of tenure of its members. That guaranty is not available to therespondent as Acting Chairman of the Commission on Elections by designation of the President of thePhilippines.

WHEREFORE, the designation by the President of the Philippines of respondent Haydee B. YoracasActing Chairman of the Commission on Elections is declared UNCONSTITUTIONAL, and therespondent is hereby ordered to desist from serving as such. This is without prejudice to the incumbentAssociate Commissioners of the Commission on Elections restoring her to the same position if they sodesire, or choosing another member in her place, pending the appointment of a permanent Chairmanby the President of the Philippines with the consent of the Commission on Appointments.cdrep


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TUPAY T. LOONG,petitioner, vs. COMMISSION ON ELECTIONS andABDUSAKUR TAN,respondents.

SYNOPSISIn the May 11, 1998 elections held in the Autonomous Region in Muslim Mindanao (ARMM), theautomated election system was implemented pursuant to R.A. No. 8436. However when theautomated machines failed to read correctly the ballots in the municipality of Pata, a manual count wasordered by the COMELEC. The problem in Pata was traced by the technical experts of COMELEC andthe suppliers of the automated machines to an error in the printing of the ballots caused by themisalignment of the ovals opposite the names of candidates and while the local ballots in the othernearby five municipalities contained the wrong sequence code. The ballot boxes were then transportedto Manila. After a manual count, respondent Tan was proclaimed governor-elect. Petitioner Loong wasthird in the count and Intervenor Jakiri placed second. The latter two questioned the resolutions of theCOMELEC ordering a manual count of the votes cast in Sulu claiming denial of due process andillegality of manual count in light of R.A. No. 8436. cdasiaPetitioner Loong and respondent Tan who were given every opportunity to oppose the manual countwere not denied due process. They were orally heard and submitted written position papers and theirrepresentatives escorted the transfer of ballots to Manila and watched the manual count from thebeginning to the end.

Congress obviously failed to provide a remedy where the error in counting is not machine-related.However, COMELEC is given the broad power to "enforce and administer all laws and regulationsrelative to the conduct of an election, plebiscite, initiative, referendum and recall". This provision givesCOMELEC all the necessary powers for it to achieve the objective of holding free, orderly, honest,peaceful and credible elections. Embraced therein is the power to order a manual count whereautomated counting fails. Furthermore, R.A. No. 8436 did not prohibit the manual counting whenmachine count does not work.

SYLLABUS

1. COMMISSION ON ELECTIONS; HAS THE DUTY TO COMPLY WITH THE MANDATE OFCONGRESS. Although not expressly sanctioned by law, such parallel manual count may arguablybe regarded as falling within the residual regulatory authority of the Comelec. Unfortunately andinexplicably, however, only a manual count was done; the Resolution ordering an automated countwas simply ignored without the Comelec giving any reason therefor. To repeat, there was no reason atall to completely abandon the automated count. The Comelec had a duty to comply with the mandateof Congress. Yet, for unstated and, unexplainable reasons, it simply substituted the will of Congresswith its own arbitrary action. Clearly, the Comelec acted without or in excess of its jurisdiction. EaScHT

2. ID.; COURTS; JURISDICTION; COURTS HAVE NO JURISDICTION TO MAKE LEGISLATIVEPRONOUNCEMENTS. Courts have no jurisdiction to make legislative pronouncements. They haveno power to fill a vacuum in the law. Thus, the Court, should not give its imprimatur to the Comelec'sresort to the manual method of determining election results, where Congress has categoricallyprescribed the automated system. Only Congress, the legislative arm of the government, can prescribe

a precise remedy that will address the flaws identified in this case. For the courts or the Comelec to doso (like a resort to manual count) would be tantamount to j udicial or administrative legislation, a coursediametrical to the constitutional principle of separation of powers. HEDSI

DECISION

In a bid to improve our elections, Congress enacted R.A. No. 8436 on December 22,1997 prescribing the adoption of an automated election system. The new system was used inthe May 11, 1998 regular elections held in the Autonomous Region in Muslim Mindanao (ARMM)which includes the Province of Sulu. Atty. Jose Tolentino, Jr. headed the COMELEC Task Forceto have administrative oversight of the elections in Sulu. cdasia

The voting in Sulu was relatively peaceful and orderly. 1 The problem started duringthe automated counting of votes for the local officials of Sulu at the Sulu State College. At about6 a.m. of May 12, 1998, some election inspectors and watchers informed Atty. Tolentino, Jr. ofdiscrepancies between the election returns and the votes cast for the mayoralty candidates in

the municipality of Pata. Some ballots picked at random by Atty. Tolentino, Jr. confirmed thatvotes in favor of a mayoralty candidate were not reflected in the printed election returns. Hesuspended the automated counting of ballots in Pata and immediately communicated the problem

to the technical experts of COMELEC and the suppliers of the automated machine. Afterconsultations, the experts told him that the problem was caused by the misalignment ofthe ovals opposite the names of candidates in the local ballots. They found nothing wrongwith the automated machines. The error was in the printing of the local ballots, as aconsequence of which, the automated machines failed to read them correctly.2

At 12:30 p.m. of the same day, Atty. Tolentino, Jr. called for an emergency meetingof the local candidates and the military-police officials overseeing the Sulu elections. Those whoattended were the various candidates for governor, namely, petitioner Tupay Loong, privaterespondent Abdusakur Tan, intervenor Yusop Jikiri and Kimar Tulawie. Also in attendance wereBrig. Gen. Edgardo Espinosa, AFP, Marine Forces, Southern Philippines, Brig. Gen. PercivalSubala, AFP, 3rd Marine Brigade, Supt. Charlemagne Alejandrino, Provincial Director, Sulu, PNP

Command and congressional candidate Bensandi Tulawie.3

The meeting discussed how the ballots in Pata should be counted in light of themisaligned ovals. There was lack of agreement. Those who recommended a shift to manualcount were Brig. Generals Espinosa and Subala, PNP Director Alejandrino, gubernatorialcandidates Tan and Tulawie and congressional candidate Bensandi Tulawie. Those who insistedon an automated count were gubernatorial candidates Loong and Jikiri. In view of theirdifferences in opinion, Atty. Tolentino, Jr. requested the parties to submit their written positionpapers. 4

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

Private respondent Tan and Atty. Tolentino, Jr. sent separate communications to the

COMELEC en bancin Manila. Still, on May 12, 1998, Tan requested for the suspension of theautomated counting of ballots throughout the Sulu province.6On the same day, COMELECissued Minute Resolution No. 98-1747 ordering a manual count but only in the municipality ofPata. The resolution reads: 7

"xxx xxx xxx

"In the matter of the Petition dated May 12, 1998 of Abdusakur Tan, Governor, Sulu, tosuspend or stop counting of ballots through automation (sic) machines for the followinggrounds, quoted to wit:

'1. The Election Returns for the Municipality of Pata, Province of Sulu-District II do notreflect or reveal the mandate of the voters:

'DISCUSSIONS

'That the watchers called the attention of our political leaders and candidates regarding their

discovery that the election returns generated after the last ballots for a precinct is scannedrevealed that some candidates obtained zero votes, among others the Provincial BoardMembers, Mayor, Vice-Mayor, and the councilors for the LAKAS-NUCD-UMDP;

'That the top ballot, however, reveals that the ballots contained votes for AntonBurahan, candidate for Municipal Mayor while the Election Return shows zero vote ;

'That further review of the Election Return reveals that John Masillam, candidate forMayor under the LAKAS-NUCD-UMDP-MNLF obtains (sic) 100% votes of the totalnumber of voters who actually voted;

'The foregoing discrepancies were likewise noted and confirmed by the chairmen, poll clerksand members of the Board of Election Inspectors (BEI) such as Rena Jawan, MatankaHajirul, Dulba Kadil, Teddy Mirajuli, Rainer Talcon, Mike Jupakal, Armina Akmad, RomuloRoldan and Lerma Marawali to mention some;

'The Pata incident can be confirmed by no less than Atty. Jose Tolentino, Head, Task ForceSulu, whose attention was called regarding the discrepancies;
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'The foregoing is a clear evidence that the automated machine (scanner) cannot be reliedupon as to truly reflect the contents of the ballots. If such happened in the Municipality ofPata, it is very possible that the same is happening in the counting of votes in the othermunicipalities of this province. If this will not be suspended or stopped, the use ofautomated machines will serve as a vehicle to frustrate the will of the sovereign people ofSulu;

'Wherefore, the foregoing premises considered and in the interest of an honest and orderlyelection, it is respectfully prayed of this Honorable Commission that an Order be issuedimmediately suspending or stopping the use of the automated machine (scanner) in thecounting of votes for all the eighteen (18) municipalities in the Province of Sulu and in lieuthereof, to avoid delay, counting be done through the usual way and known and tested byus.'

"While the commission does not agree with the conclusions stated in the petition,and the failure of the machine to read the votes may have been occasioned by otherfactors, a matter that requires immediate investigation, but in the public interest, theCommission,

'RESOLVED to grant the Petition dated May 12, 1998 and to Order that the counting ofvotes shall be done manually in the Municipality of PATA, the only place in Suluwhere the automated machine failed to read the ballots, subject to notice to all partiesconcerned."' LLjur

Before midnight of May 12, 1998, Atty. Tolentino, Jr. was able to send to the COMELEC enbanchis report and recommendation, urging the use of the manual count in the entire Province ofSulu, viz:8

"The undersigned stopped the counting in the municipality of Patasince he discovered that votes for a candidate for mayor was credited in favorof the other candidate. Verification with the Sulu Technical Staff, including PatSquires of ES & S, reveals that the cause of the error is the way the ballot wasprinted. Aside from misalignment of the ovals and use of codes assigned toanother municipality (which caused the rejection of all local ballots in oneprecinct in Talipao), error messages appeared on the screen although theactual condition of the ballots would have shown a different message.Because of these, the undersigned directed that counting for all ballots in Sulube stopped to enable the Commission to determine the problem and rectify thesame. It is submitted that stopping the counting is more in consonance withthe Commission's mandate than proceeding with an automated but inaccuratecount.

"In view of the error discovered in Pata and the undersigned's order to suspend thecounting, the following documents were submitted to him.

"1. Unsigned letter dated May 12, 1998 submitted by Congressman Tulawie for manualcounting and canvassing;"2. Petition of Governor Sakur Tan for manual counting;"3. Position paper of Tupay Loong, Benjamin Loong, and Asani Tamang for automatedcount;"4. MNLF Position for automated count; and"5. Recommendation of General E. V. Espinosa, General PM Subala, and PD CSAlejandrino for manual count;

"Additional marines have been deployed at the SSC. The undersigned is not sure if it ismerely intended to tame a disorderly crowd, inside and outside SSC, or a show of force."It is submitted that since an error was discovered in a machine which is supposed tohave an error rate of 1:1,000,000, not a few people would believe that this error inPata would extend to the other municipalities. Whether or not this is true, it would bemore prudent to stay away from a lifeless thing that has sown tension and anxietyamong and between the voters of Sulu.

Respectfully submitted:

12 May 1998

(SGD.) JOSE M. TOLENTINO, JR."

The next day, May 13, 1998, COMELEC issued Resolution No. 98-1750 approving Atty.Tolentino, Jr.'s recommendation and the manner of its implementation as suggested by ExecutiveDirector Resurreccion Z. Borra. The Resolution reads:9

"In the matter of the Memorandum dated 13 May 1998 of ExecutiveDirector Resurreccion Z. Borra, pertinent portion of which is quoted as follows:

"In connection with Min. Res. No. 98-1747 promulgated May 12,

1998 which resolved to order that the counting of votes shall be done manuallyin the municipality of Pata, the only place in Sulu where the automatedcounting machine failed to read the ballots, subject to notice to all partiesconcerned, please find the following:

"1. Handwritten Memo of Director Jose M. Tolentino, Jr., Task Force Head, Sulu, addressedto the Executive Director on the subject counting and canvassing in the municipality of Patadue to the errors of the counting of votes by the machine brought about by the error in theprinting of the ballot, causing misalignment of ovals and use of codes assigned to anothermunicipality.

He recommended to revert to the manual counting of votes in the whole of Sulu. Heattached the stand of Congressman Tulawie, Governor Sakur Tan and recommendation ofBrigadier General Edgardo Espinosa, General Percival Subala, P/Supt. CharlemagneAlejandrino for manual counting. The position paper of former Governor Tupay Loong, Mr.Benjamin Loong and Mr. Asani S. Tamang, who are candidates for Governor and

Congressman of 1st and 2nd Districts respectively, who wanted the continuation of theautomated counting.

"While the forces of AFP are ready to provide arm (sic) security to our Comelecofficials, BEIs and other deputies, the political tensions and imminent violence andbloodshed may not be prevented, as per report received, the MNLF forces arereadying their forces to surround the venue for automated counting and canvassingin Sulu in order that the automation process will continue. LLphil

"Director Borra recommends, that while he supports Minute Resolution No. 98-1747,implementation thereof shall be done as follows:

"1. That all the counting machines from Jolo, Sulu be transported back by C130 toManila and be located at the available space at PICC for purposes of both automatedand manual operations. This approach will keep the COMELEC officials away fromviolence and bloodshed between the two camps who are determined to slug each

other as above mentioned in Jolo, Sulu. Only authorized political party and candidatewatchers will be allowed in PICC with proper security, both inside and outside theperimeters of the venue at PICC.

"2. With this process, there will be an objective analysis and supervision of theautomated and manual operations by both the MIS and Technical Expert of the ES &S away from the thundering mortars and the sounds of sophisticated heavy weaponsfrom both sides of the warring factions.

"3. Lastly, it will be directly under the close supervision and control of Commission onElections En Banc.

"RESOLVED:

"1. To transport all counting machines from Jolo, Sulu by C130 to Manila forpurposes of both automated and manual operations, with notice to all parties

concerned;
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"2. To authorize the official travel of the board of canvassers concerned for theconduct of the automated and manual operations of the counting of votes at PICCunder the close supervision and control of the Commission En Banc. For thispurpose, to make available a designated space at the PICC ;

"3. To authorize the presence of only the duly authorized representative of thepolitical parties concerned and the candidates watchers both outside and inside theperimeters of the venue at PICC."

Atty. Tolentino, Jr. furnished the parties with copies of Minute Resolution No.98-1750 and called for another meeting the next day, May 14, 1998, to discuss theimplementation of the resolution.10 The meeting was attended by the parties, by Lt. Gen.Joselin Nazareno, then the Chief of the AFP Southern Command, the NAMFREL, media, and thepublic. Especially discussed was the manner of transporting the ballots and the countingmachines to the PICC in Manila. They agreed to allow each political party to have at least one (1)escort/watcher for every municipality to accompany the flight. Two C130s were used for thepurpose.11

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

"In the matter of the Memorandum dated 15 May 1998 of Executive Director ResurreccionZ. Borra, quoted to wit:

'In the implementation of COMELEC Min. Resolution No. 98-1750 promulgated 13 May1998 in the manual counting of votes of Pata, Sulu, and in view of the arrival of the countingmachines, ballot boxes, documents and other election paraphernalia for the whole provinceof Sulu now stored in PICC, as well as the arrival of the Municipal Board of Canvassers ofsaid Municipality in Sulu, and after conference with some members of the Senior Staff andTechnical Committee of this Commission, the following are hereby respectfullyrecommended:

'1. Manual counting of the local ballots of the automated election system in Pata, Sulu;

'2. Automated counting of the national ballots considering that there are no questions raisedon the National Elective Officials as pre-printed in the mark-sensed ballots;

'3. The creation of the following Special Boards of Inspectors under the supervision of Atty.Jose M. Tolentino, Jr., Task Force Head, Sulu, namely:

'4. Additional Special Board of Inspectors may be created when necessary.

5. The Provincial Board of Canvassers which by standing Resolution is headed by the TaskForce Sulu Head shall consolidate the manual and automated results as submitted by theMunicipal Boards of Canvassers of the whole province with two members composed of

Directors Estrella P. de Mesa and Ester L. Villaflor-Roxas;

'6. The political parties and the candidates in Sulu as well as the Party-List Candidates areauthorized to appoint their own watchers upon approval of the Commission',

RESOLVED to approve the foregoing recommendations in the implementation of Min.Resolution No. 98-1750 promulgated on 13 May 1998 providing for the manual counting ofvotes in the municipality of Pata, Sulu.'RESOLVED, moreover, considering therecommendation of Comm. Manolo B. Gorospe, Commissioner-In-Charge, ARMM, toconduct a parallel manual counting on all 18 municipalities of Sulu as a final guidance of thereliability of the counting machine which will serve as basis for the proclamation of thewinning candidates and for future reference on the use of the automated countingmachine."'

On May 18, 1998, petitioner filed his objection to Minute Resolution No. 98-1796, viz:13

"1. The minute resolution under agenda No. 98-1796 violates the provisions ofRepublic ActNo. 8436 providing for an automated counting of the ballots in the Autonomous Region inMuslim Mindanao. The automated counting is mandatory and could not be substituted by amanual counting. Where the machines are allegedly defective, the only remedy provided forby law is to replace the machine. Manual counting is prohibited by law;

"2. There are strong indications that in the municipality of Pata the ballots of the saidmunicipality were rejected by the counting machine because the ballots were tamperedand/or the texture of the ballots fed to the counting machine are not the official ballots of theComelec;

"3. The automated counting machines of the Comelec have been designed in such a waythat only genuine official ballots could be read and counted by the machine;

"4. The counting machines in the other municipalities are in order. In fact, the automatedcounting has already started. The automated counting in the municipalities of Lugus andPanglima Tahil has been completed. There is no legal basis for the 'parallel manualcounting' ordained in the disputed minute resolution."

Nonetheless, COMELEC started the manual count on the same date, May 18,1998. cda

On May 25, 1998, petitioner filed with this Court a petition for certiorariand prohibitionunder Rule 65 of the Rules of Court. He contended that: (a) COMELEC issued Minute ResolutionNos. 98-1747, 98-1750, and 98-1798 without prior notice and hearing to him; (b) the order formanual counting violated R.A. No. 8436; (c) manual counting gave "opportunity to the followingelection cheating," namely.

"(a) The counting by human hands of the tampered, fake and counterfeit ballots which thecounting machines have been programmed to reject (Section 7, 8 & 9 of Rep. Act 8436).

"(b) The opportunity to substitute the ballots all stored at the PICC. In fact, no less than thehead of the COMELEC Task Force of Sulu, Atty. Jose M. Tolentino, Jr. who recommendedto the COMELEC the anomalous manual counting, had approached the watchers ofpetitioners to allow the retrieval of the ballots, saying "tayo, tayo lang mga watchers, pag-usapan natin," clearly indicating overtures of possible bribery of the watchers of petitioner(ANNEX E).

"(c) With the creation by the COMELEC of only 22 Boards of Election Inspectors tomanually count the 1,194 precincts, the manipulators are given sufficient time to changeand tamper the ballots to be manually counted.

"(d) There is the opportunity of delaying the proclamation of the winning candidates throughthe usually dilatory moves in a pre-proclamation controversy because the returns andcertificates of canvass are already human (sic) made. In the automated counting there is no

room for any dilatory pre-proclamation controversy because the returns and the MBC andPBC certificates of canvass are machine made and immediate proclamation is ordainedthereafter."

Petitioner then prayed:

"WHEREFORE, it is most especially prayed of the Honorable Courtthat:

"1. upon filing of this petition, a temporary restraining order be issued enjoining theCOMELEC from conducting a manual counting of the ballots of the 1,194 precincts of the 18municipalities of the Province of Sulu but instead proceed with the automated counting ofthe ballots, preparation of the election returns and MBC, PBC certificates of canvass andproclaim the winning candidates on the basis of the automated counting and consolidationof results;

"2. this petition be given due course and the respondents be required to answer;
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"3. after due hearing, the questioned COMELEC En Banc Minute Resolutions of May 12,13, 15, and 17, 1998 be all declared null and void ab initiofor having been issued withoutjurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction and forbeing in violation of due process of law;

"4. the winning candidates of the Province of Sulu be proclaimed on the basis of the resultsof the automated counting, automated election returns, automated MBC and PBCcertificates of canvass;

"xxx xxx xxx."

On June 8, 1998, private respondent Tan was proclaimed governor-elect of Suluon the basis of the manual count.14 Private respondent garnered 43,573 votes. Petitionerwas third with 35,452 votes or a difference of 8,121 votes.

On June 23, 1998, this Court required the respondents to file their Comment to thepetition and directed the parties "to maintain the status quo prevailing at the time of the filing ofthe petition."15 The vice-governor elect was allowed to temporarily discharge the powers andfunctions of governor.

On August 20, 1998, Yusop Jikiri, the LAKAS-NUCD-UMDP-MNLF candidate forgovernor filed a motion for intervention and a Memorandum in Intervention.16The result of themanual count showed he received 38,993 votes and placed second. Similarly, he alleged denialof due process, lack of factual basis of the COMELEC resolutions and illegality of manual count inlight of R.A. No. 8436. The Court noted his intervention.17A similar petition for intervention filedby Abdulwahid Sahidulla, a candidate for vice-governor, on October 7, 1998 was denied as it wasfiled too late.

In due time, the parties filed their respective Comments. On September 25, 1998, the

Court heard the parties in oral argument18 which was followed by the submission of their writtenmemoranda. cdlex

The issues for resolutionare the following:

1. Whether or not a petition for certiorariand prohibition under Rule 65 of theRules of Court is the appropriate remedy to invalidate the disputedCOMELEC resolutions.

2. Assuming the appropriateness of the remedy, whether or not COMELECcommitted grave abuse of discretion amounting to lack ofjurisdiction in ordering a manual count.

2.a. Is there a legal basis for the manual count?

2.b. Are its factual bases reasonable?

2.c. Were the petitioner and the intervenor denied due process bythe COMELEC when it ordered a manual count?

3. Assuming the manual count is illegal and that its result is unreliable,whether or not it is proper to call for a special election for theposition of governor of Sulu.

We shall resolve the issues in seriatim.

First. We hold that certiorariis the proper remedy of the petitioner. Section 7, ArticleIX (A) of the 1987 Constitution states that "unless provided by this Constitution or by law, anydecision, order or ruling of each Commission may be brought to the Supreme Courtoncertiorariby the aggrieved party within thirty days from receipt of a copy thereof." We haveinterpreted this provision to mean final orders, rulings and decisions of the COMELEC renderedin the exercise of its adjudicatory or quasi-judicial powers. 19Contrariwise, administrative ordersof the COMELEC are not, as a general rule, fit subjects of a petition forcertiorari. The main issuein the case at bar is whether the COMELEC gravely abused its discretion when it ordered amanual count of the 1998 Sulu local elections. A resolution of the issue will involve aninterpretation of R.A. No. 8436 on automated election in relation to the broad power of the

COMELEC under Section 2(1), Article IX(C) of the Constitution "to enforce and administer alllaws and regulations relative to the conduct of an election . . ." The issue is not only legal but oneof first impression and undoubtedly suffused with significance to the entire nation. It isadjudicatory of the right of the petitioner, the private respondent and the intervenor to the positionof governor of Sulu. These are enough considerations to call for an exercise ofthe certiorarijurisdiction of this Court.

Second. The big issue, one of first impression, is whether the COMELEC committedgrave abuse of discretion amounting to lack of jurisdiction when it ordered a manual count in lightofR.A. No. 8436. The post election realities on ground will show that the order for a manual countcannot be characterized as arbitrary, capricious or whimsical.

a. It is well established that the automated machines failed to read correctly the ballots inthe municipality of Pata. A mayoralty candidate, Mr. Anton Burahan, obtained zero votesdespite the representations of the Chairman of the Board of Election Inspectors and othersthat they voted for him. Another candidate garnered 100% of the votes.

b. It is likewise conceded that the automated machines rejected and would not count thelocal ballots in the municipalities of Talipao, Siasi, Indanan, Tapal and Jolo.

c. These flaws in the automated counting of local ballots in the municipalities of Pata,Talipao, Siasi, Indanan, Tapal and Jolo were carefully analyzed by the Technical experts ofCOMELEC and the supplier of the automated machines. All of them found nothing wrongwith the automated machines. They traced the problem to the printing of local ballots by theNational Printing Office. In the case of the municipality of Pata, it was discovered that theovals of the local ballots were misaligned and could not be read correctly by the automatedmachines. In the case of the municipalities of Talipao, Siasi, Indanan, Tapal and Jolo, itturned out that the local ballots contained the wrong sequence code. Each municipality wasassigned a sequence code as a security measure. Ballots with the wrong sequence codewere programmed to be rejected by the automated machines.

It is plain that to continue with the automated count in these five (5) municipalitieswould result in a grossly erroneous count. It cannot also be gainsaid that the count in these five(5) municipalities will affect the local elections in Sulu. There was no need for more sampling oflocal ballots in these municipalities as they suffered from the same defects. All local ballots inPata with misaligned ovals will be erroneously read by the automated machines. Similarly, alllocal ballots in Talipao, Siasi, Indanan, Tapal and Jolo with wrong sequence codes are certain tobe rejected by the automated machines. There is no showing in t he records that the local ballotsin these five (5) municipalities are dissimilar which could justify the call for their greater sampling.

Third. These failures of automated counting created post election tension in Sulu, aprovince with a history of violent elections. COMELEC had to act decisively in view of the fastdeteriorating peace and order situation caused by the delay in the counting of votes. Theevidence of this fragile peace and order cannot be downgraded. In his handwritten report to theCOMELEC dated May 12, 1998, Atty. Tolentino, Jr. stated:

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COMELEC Until Initiative

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