REGINA ONGSIAKO REYES, Petitioner, v. COMMISSION ON ELECTIONS AND JOSEPH SOCORRO B. TAN, Respondents.G.R. No. 207264, June 25, 2013

Facts:

The petitioners assail through a Petition for Certiorari with prayer for Temporary Restraining Order and/or Preliminary Injunction resolution of the Commission on Election ordering the cancellation of the Certificate of Candidacy of petitioner for the position of the Representative of the lone district of Marinduque.

On October 31. 2012, Joseph Socorro Tan filed with the Comelec an Amended Petition to Deny Due Course or to Cancel the Certificate of Candidacy of Regina Ongsiako Reyes, the petitioner, on the ground that it contained material representations.On March 27, 2013, the COMELEC cancelled the certificate of candidacy of the petitioner. She filed an MR on April 8, 2013. On May 14, 2013, COMELEC en banc denied her MR.

However, on May 18, 2013, she was proclaimed winner of the May 13, 2013 Elections. On June 5, 2013, COMELEC declared the May 14, 2013 Resolution final and Executory. On the same day, petitioner took her oath of office before Feliciano Belmonte, the Speaker of the House of Representatives. She has yet to assume office at that time, as her term officially starts at noon of June 30, 2013.According to petitioner, the COMELEC was ousted of its jurisdiction when she was duly proclaimed20 because pursuant to Section 17, Article VI of the 1987 Constitution, the HRET has the exclusive jurisdiction to be the “sole judge of all contests relating to the election, returns and qualifications” of the Members of the House of Representatives.

Issue:

Whether or not COMELEC has jurisdiction over the petitioner who is proclaimed as winner and who has already taken her oath of office for the position of member of the House of Representative of Marinduque.

Held:

Yes, COMELEC retains jurisdiction because the jurisdiction of the HRET begins only after the candidate is considered a Member of the House of Representatives, as stated in Section 17, Article VI of the 1987 Constitution. For one to be considered a Member of the House of Representatives, there must be a concurrence of these requisites: (1) valid proclamation; (2) proper oath, and (3) assumption of office.

Thus the petitioner cannot be considered a member of the HR yet as she has not assumed office yet. Also, the 2nd requirement was not validly complied with as a valid oath must be made (1) before the Speaker of the House of Representatives, and (2) in open session.  Here, although she made the oath before Speaker Belmonte, there is no indication that it was made during plenary or in open session and, thus, it remains unclear whether the required oath of office was indeed complied.

Furthermore, petition for certiorari will prosper only if grave abuse of discretion is alleged and proved to exist. For an act to be struck down as having been done with grave abuse of discretion, the abuse of discretion must be patent and gross. Here, this Court finds that petitioner failed to adequately and substantially show that grave abuse of discretion exists.

Case Digest: Arroyo vs. DOJ

G.R. No. 199082 : September 18, 2012

JOSE MIGUEL T. ARROYO, Petitioner, v. DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA DE LIMA, in her capacity as Secretary of the Department of Justice; HON. SIXTO BRILLANTES, JR., in his capacity as Chairperson of the Commission on Elections; and the JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE and FACT-FINDING TEAM, Respondents.

FACTS:

The Comelec issued Resolution No. 9266 approving the creation of a joint committee with the Department of Justice (DOJ), which shall conduct preliminary investigation on the alleged election offenses and anomalies committed during the 2004 and 2007 elections.

The Comelec and the DOJ issued Joint Order No. 001-2011 creating and constituting a Joint Committee and Fact-Finding Team on the 2004 and 2007 National Elections electoral fraud and manipulation cases composed of officials from the DOJ and the Comelec. In its initial report, the Fact-Finding Team concluded that manipulation of the results in the May 14, 2007 senatorial elections in the provinces of North and South Cotabato and Maguindanao were indeed perpetrated. The Fact-Finding Team recommended that herein petitioners Gloria Macapagal-Arroyo (GMA), et al. to be subjected to preliminary investigation for electoral sabotage.

After the preliminary investigation, the COMELEC en banc adopted a resolution ordering that information/s for the crime of electoral sabotage be filed against GMA, et al. while that the charges against Jose Miguel Arroyo, among others, should be dismissed for insufficiency of evidence.

Consequently, GMA, et al. assail the validity of the creation of COMELEC-DOJ Joint Panel and of Joint Order No. 001-2011 before the Supreme Court.

ISSUES:

I. Whether or not the creation of COMELEC-DOJ Joint Panel is valid?

HELD: Petitions are DISMISSED.

FIRST ISSUE: The creation of COMELEC-DOJ Joint Panel is valid.

POLITICAL LAW: powers of COMELEC

Section 2, Article IX-C of the 1987 Constitution enumerates the powers and functions of the Comelec. The grant to the Comelec of the power to investigate and prosecute election offenses as an adjunct to the enforcement and administration of all election laws is intended to enable the Comelec to effectively insure to the people the free, orderly, and honest conduct of elections. The constitutional grant of prosecutorial power in the Comelec was reflected in Section 265 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code.

Under the above provision of law, the power to conduct preliminary investigation is vested exclusively with the Comelec. The latter, however, was given by the same provision of law the authority to avail itself of the assistance of other prosecuting arms of the government. Thus, under the Omnibus Election Code, while the exclusive jurisdiction to conduct preliminary investigation had been lodged with the Comelec, the prosecutors had been conducting preliminary investigations pursuant to the continuing delegated authority given by the Comelec.

Thus, Comelec Resolution No. 9266, approving the creation of the Joint Committee and Fact-Finding Team, should be viewed not as an abdication of the constitutional bodys independence but as a means to fulfill its duty of ensuring the prompt investigation and prosecution of election offenses as an adjunct of its mandate of ensuring a free, orderly, honest, peaceful and credible elections.

DOES THE COMELEC HAS EXCLUSIVE POWER TO INVESTIGATE ELECTION CASES?

YES, UNDER BP 881 OR THE COMELEC ELECTION CODE. BUT NOT ANYMORE UNDER SECTION 43 OF RA 9369.

“…… While recognizing the Comelec’s exclusive power to investigate and prosecute cases under Batas Pambansa Bilang 881 or the Omnibus Election Code, the Court pointed out that the framers of the 1987 Constitution did not have such intention. This exclusivity is thus a legislative enactment that can very well be amended by Section 43 of RA 9369. Therefore, under the present law, the Comelec and other prosecuting arms of the government, such as the DOJ, now exercise concurrent jurisdiction in the investigation and prosecution of election offenses.”

CASAN MACODE MAQUILING vs Comelec

Rommel Arnado is a natural born Filipino citizen. However, as a consequence of his subsequent naturalization as a citizen of the United States of America, he lost his Filipino citizenship. Arnado applied for repatriation under Republic Act (R.A.) No. 9225 before the Consulate General of the Philippines in San Franciso, USA and took the Oath of Allegiance to the Republic of the Philippines on 10 July 2008. On the same day an Order of Approval of his Citizenship Retention and Re-acquisition was issued in his favor. On 3 April 2009 Arnado again took his Oath of Allegiance to the Republic and executed an Affidavit of Renunciation of his foreign citizenship.

On 28 April 2010, respondent Linog C. Balua (Balua), another mayoralty candidate, filed a petition to disqualify Arnado and/or to cancel his certificate of candidacy for municipal mayor of Kauswagan, Lanao del Norte in connection with the 10 May 2010 local and national elections. Respondent Balua contended that Arnado is not a resident of Kauswagan, Lanao del Norte and that he is a foreigner, attaching thereto a certification issued by the Bureau of Immigration dated 23 April 2010 indicating the nationality of Arnado as “USA-American.” The COMELEC First Division ruled that the petition for disqualification be granted because he is still using his US passport after his renunciation of his US citizenship which negates his Affidavit of Renunciation. Arnado filed a Motion for Reconsideration before the COMELEC En Banc. Petitioner Casan Macode Maquiling (Maquiling), another candidate for mayor of Kauswagan, and who garnered the second highest number of votes in the 2010 elections, intervened in the case and filed before the COMELEC En Banc a Motion for Reconsideration together with an Opposition to Arnado’s Amended Motion for Reconsideration.

The COMELEC En Banc granted the Motion for Reconsideration of Arnado on the ground that the use of a US passport……. does not operate to revert back his status as a dual citizen prior to his renunciation as there is no law saying such. More succinctly, the use of a US passport does not operate to “unrenounce” what he has earlier on renounced. Maquiling files a petition before the Supreme Court to assail the decision of the COMELEC En Banc.

ISSUE: Whether or not the use of a foreign passport after renouncing foreign citizenship affects one’s qualifications to run for public office.

RULING: Between 03 April 2009, the date he renounced his foreign citizenship, and 30 November 2009, the date he filed his COC, he used his US passport four times, actions that run counter to the affidavit of renunciation he had earlier executed. By using his foreign passport, Arnado positively and voluntarily represented himself as an American, in effect declaring before immigration authorities of both countries that he is an American citizen, with all attendant rights and privileges granted by the United States of America. The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time, only to be violated the next day. It requires an absolute and perpetual renunciation of the foreign citizenship and a full divestment of all civil and political rights granted by the foreign country which granted the citizenship. While the act of using a foreign passport is not one of the acts enumerated in Commonwealth Act No. 63 constituting renunciation and loss of Philippine citizenship, it is nevertheless an act which repudiates the very oath of renunciation required for a former Filipino citizen who is also a citizen of another country to be qualified to run for a local elective position.

We agree with the COMELEC En Banc that such act of using a foreign passport does not divest Arnado of his Filipino citizenship, which he acquired by repatriation. However, by representing himself as an American citizen, Arnado voluntarily and effectively reverted to his earlier status as a dual citizen. Such reversion was not retroactive; it took place the instant Arnado represented himself as an American citizen by using his US passport. This act of using a foreign passport after renouncing one’s foreign citizenship is fatal to Arnado’s bid for public office, as it effectively imposed on him a disqualification to run for an elective local position. The citizenship requirement for elective public office is a continuing one. It must be possessed not just at the time of the renunciation of the foreign citizenship but continuously. Any act which violates the oath of renunciation opens the citizenship issue to attack.

We therefore hold that Arnado, by using his US passport after renouncing his American citizenship, has recanted the same Oath of Renunciation he took. Section 40(d) of the Local Government Code applies to his situation. He is

disqualified not only from holding the public office but even from becoming a candidate in the May 2010 elections.

A candidate for the House of Representatives who was disqualified for failure to comply with the residence requirement under the Section 6, Art, VI of the Constitution could not be validly substituted. Distinctions between disqualification under Sec. 68 of the OEC and Section 78.

SILVERIO TAGOLINO VS. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL & LUCY TORRES-GOMEZ, G.R. No. 202202, March 19, 2013

Actor Richard Gomez (Richard) filed his Certificate of Candidacy seeking the congressional office of the House of Representatives for the 4 th

District of Leyte. He indicated his residence as 910 Carlota Hills, Ormoc City. The same was questioned before the COMELEC by Buenaventura Juntilla, one of the candidates for the said position claiming that Richard is a resident of Colgate St., East Greenhills, San Juan City, MM. The COMELEC disqualified Richard based on Section 78 of the Omnibus Election Code for lack of residence. On May 5, 2010, Lucy Torres-Gomez (Lucy) filed her Certificate of Candidacy as SUBSTITUTE of Richard. Despite the vigorous objection of Juntilla, the COMELEC allowed the substitution and Lucy was elected as Representative of the 4th District of Leyte in the May 10, 2010 elections.

A case was filed before the HRET questinoning the election of Lucy on the ground that the “substitution” is not valid but the HRET sustained the validity of the said substitution

Issue:

Was there a valid substitution? Was Lucy Torres Gomez validly elected as representative of the 4th District of Leyte?

Held:

A valid Certificate of Candidacy is a condition sine qua non for a valid candidate substitution.Since Richard’s COC was not valid for material representation as to his residence, then there was no valid substitution. In short, since Richard is not considered a “candidate” or there was no candidate to speak of, there would be no candidate to be substituted.

Unlike disqualification under Section 68 where he can be substituted because the candidate therein has all the qualifications but disqualified because of prohibited acts like election offences or because he is a permanent resident of a foreign country, a candidate disqualified under Section 78 could not be validly substituted.

ROMMEL APOLINARIO JALOSJOS, vsTHE COMMISSION ON ELECTIONSand DAN ERASMO, SR.,   Respondents.                G.R. No. 191970 April 24, 2012               

FACTS:

Rommel Jalosjos was born in Quezon City on October 26, 1973. He migrated to Australia in 1981 when he was eight years old and there acquired Australian citizenship. On November 22, 2008, at age 35, he decided to return to the Philippines and lived with his brother in Ipil, Zamboanga Sibugay. Four days upon his return, he took an oath of allegiance to the Republic of the Philippines, hence, he was issued a Certificate of Reacquisition of Philippine Citizenship by the Bureau of Immigration. On September 1, 2009 he renounced his Australian citizenship, executing a sworn renunciation of the same in compliance with Republic Act (R.A.) 9225. From the time of his return, Jalosjos acquired a residential property in the same village where he lived and maintained a fish pond.

He applied for registration as a voter in the Municipality of Ipil but respondent Erasmo, the Barangay Captain, opposed the said act. Election Registration Board approved it and included Jalosjos’ name in the COMELEC voters list. Erasmo filed before the MTC a petition for the exclusion of Jalosjos’ name from the official voters list. The MTC denied Erasmo’s petition. He appealed to RTC but RTC upheld the MTC decision. On November 28, 2009 Jalosjos filed his Certificate of Candidacy (COC) for Governor of Zamboanga Sibugay Province for the May 10, 2010 elections. Erasmo filed a petition to deny due course or to cancel Jalosjos’ COC on the ground that Jalosjos made material misrepresentation in the same since he failed to comply with (1) the requirements of R.A. 9225 and (2) the one-year residency requirement of the Local Government Code. COMELEC ruled against Jalosjos, because he failed to comply with the 1-year residency ruequirement. Subsequently, Jalosjos won the elections

ISSUE: Whether or not Jalosjos failed to comply with the 1-year residency requirement

HELD:

Jalosjos complied with the 1-year requirement. It is true that his domicial was Quezon City, his domicile of origin, the place of his birth. However, his domicile was changed from Quezon City to Australia when he migrated there at the age of eight, acquired Australian citizenship, and lived in that country for 26 years. Australia became his domicile by operation of law and by choice.

When he came to the Philippines in November 2008 to live with his brother in Zamboanga Sibugay, it is evident that Jalosjos did so with intent to change his domicile for good. In addition, he reacquired his old citizenship by taking an oath of allegiance to the Republic of the Philippines, resulting in his being issued a Certificate of Reacquisition of Philippine Citizenship by the Bureau of Immigration. By his acts, Jalosjos forfeited his legal right to live in Australia, clearly proving that he gave up his domicile there.He has since lived nowhere else except in Ipil, Zamboanga Sibugay.

As to the issue that he cannot claim Ipil as his domicile as he was living in his brother’s house, the court said that a candidate need to have a house in a community to establish residence. It is sufficient that he rents a house or in the house of a friend or relative. Only 2 important things must be proved: actual physical presence and an intention of making it his domicile. Jaloslos was able to prove the two requirements. Hence, he is qualified.

Regio v. COMELEC

G.R. No. 204828 : December 3, 2013

JAIME C. REGIO, Petitioner, v. COMMISSION ON ELECTIONS and RONNIE C. CO,Respondents.

VELASCO, JR.,J.:FACTS:

Petitioner Regio and private respondent Co, among other candidates, ran in the October 25, 2010 barangay elections in District III of the City of Manila for the position of punong barangay. Immediately following the counting and canvassing of the votes, from 7 clustered precincts in the adverted barangay, Regio, who garnered highest votes was proclaimed winner for the contested post.

On November 4, 2010, Co filed an election protest before the MeTC. He claimed, among other things, that the Board of Election Tellers (BET) did not

follow COMELEC Resolution No. 9030, as it ignored the rules on appreciation of ballots, resulting in misreading, miscounting, and misappreciation of ballots.

Of the seven clustered precincts (CPs) initially protested, Co would later exclude CP Nos. 1304A and 1305A from the protest. During the preliminary conference, the trial court allowed the revision of ballots. During his turn to present evidence, Co limited his offer to the revision committee report, showing that he garnered the highest number of votes. Regio, on the other hand, denied that the elections were tainted with irregularities. He claimed that the results of the revision are products of post-elections operations, as the ballots were tampered with, switched, and altered drastically to change the results of the elections.

The trial court dismissed Cos protest and declared Regio as the duly-elected punong barangay.

According to the trial court, before it can accord credence to the results of the revision, it should first be ascertained that the ballots found in the box during the revision are the same ballots deposited by the voters. In fine, the court "should first be convinced that the ballots counted during the revision have not been tampered with before it can declare the ballots a) as superior evidence of how the electorate voted, and b) as sufficient evidence to set aside the election returns. For the ballots to be considered the best evidence of how the voters voted, their integrity should be satisfactorily established."Invoking Rosal v. COMELEC, G.R. Nos. 168253 & 172741, March 16, 2007the trial court ruled that Co failed to sufficiently show that the integrity of the contested ballots had been preserved. It then cited the presumption that election returns are genuine, and that the data and information supplied by the board of election inspectors are true and correct.

The trial court said that the misreading, miscounting, and misappreciation of ballots should be proven by other independent evidence. Without any evidence, the allegation of misreading, miscounting, and misappreciation of ballots remains a mere allegation without any probative value.

Aggrieved, Co filed an appeal before the COMELEC,

The COMELEC First Divisiondismissed the appeal, noting, as the MeTC did, that Co failed to show that the integrity of the ballots in question was in fact preserved.

Co then filed a Motion for Reconsideration. The COMELEC En Banc reconsidered the Resolution of the First Division, and accordingly declared Co as the duly elected punong barangay.

Thus, the present recourse, on the argument that the COMELEC En Banc committed grave abuse of discretion amounting to lack or excess of jurisdiction when it arbitrarily set aside the Decision of the MeTC and the Resolution of the COMELEC First Division. Petitioner further argues that the COMELEC gravely abused its discretion when it demanded from protestee direct proof of actual tampering of ballots to justify consideration of the use of the election returns in determining the winning candidate in the elections. In fine, petitioner questions the ruling of the COMELEC giving precedence to the results of the revision over the official canvassing results.

ISSUE: Whether or not the COMELEC En Banc committed grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that Co had successfully discharged the burden of proving the integrity of the ballots subjected to revision.

HELD: The decision of the COMELEC Division is reinstated.

POLITICAL LAW moot and academic

At the outset, it must be noted that the protest case is dismissible for being moot and academic. A case becomes moot when there is no more actual controversy between the parties or no useful purpose can be served in passing upon the merits. Generally, courts will not determine a moot question in a case in which no practical relief can be granted. Baldo v. COMELEC, G.R. No. 176135, June 16, 2009

In Malaluan v. COMELEC, 324 Phil. 676, (1996),this Court settled the matter on when an election protest case becomes moot and academic: When the appeal from a decision in an election case has already become moot, the case being an election protest involving the office of mayor the term of which had expired, the appeal is dismissible on that ground, unless the rendering of a decision on the merits would be of practical value.

In the case at bar, the position involved is that of a punong barangay. The governing law, therefore, is Republic Act No. (RA) 9164, as amended by RA 9340. Sec. 4 of the law states that xxx the term of office of the barangay and sangguniang kabataan officials elected in the October 2007 election and subsequent elections shall commence at noon of November 30 next following their election.

In fine, with the election of a new punong barangay during the October 28, 2013 elections, the issue of who the rightful winner of the 2010 barangay elections has already been rendered moot and academic.

COMELEC En Banc, committed grave abuse of discretion by the specifically ignoring the rules on evidence, merits consideration. Still in line with the

Courts decision in Malaluanto the effect that the Court can decide on the merits a moot protest if there is practical value in so doing, We find that the nullification of the COMELEC En Bancs Resolution is in order, due to its gross contravention of established rules on evidence in election protest cases.

POLITICAL LAW election protest

The doctrine in Rosal v. COMELEC and considering the results of the revision vis-vis the results reflected in the official canvassing In Rosal, this Court summarized the standards to be observed in an election contest predicated on the theory that the election returns do not accurately reflect the will of the voters due to alleged irregularities in the appreciation and counting of ballots.

The Rosal ruling does not involve issues merely related to the appreciation or calibration of evidence; its critical ruling is on the propriety of relying on the revision of ballot results instead of the election returns in the proclamation of a winning candidate.

The Rosal doctrine ensures that in election protest cases, the supreme mandate of the people is ultimately determined. In laying down the rules in appreciating the conflicting results of the canvassing and the results of a revision later made, the Court has no other intention but to determine the will of the electorate. The Rosal doctrine is also supplemented by A.M. No. 07-4-15-SC establishing the following disputable presumptions.

Private respondent Co has not proved that the integrity of the ballots has been preserved applying Rosal, viewed in conjunction with A.M. No. 07-4-15-SC, this Court rules that the COMELEC En Banc committed grave abuse of discretion in ruling that private respondent had successfully discharged the burden of proving that the ballots counted during the revision proceedings are the same ballots cast and counted during the day of the elections.

What the protestant should endeavor to prove, however, in presenting evidence of preservation, is not that the ballots themselves are genuine or official, but that they are the very same ones cast by the electorate. The Report, therefore, cannot be considered as evidence of the preservation, as required by Rosal.

The fact of preservation is not, as respondent Co claims, "incontrovertible." In fact, there is total absence of evidence to that effect. The incontrovertible fact is that private respondent, during the proceedings before the trial court, did not present any independent evidence to prove his claim. Without any independent evidence, the trial court, the COMELEC, as well as this Court, is constrained to affirm as a fact the disputable presumption that the ballots were properly counted during the counting and canvassing of votes.

In sum, We find that the COMELEC gravely abused its discretion in ruling that private respondent had discharged the burden of proving the integrity of the ballots.

Petitioner need not prove actual tampering of the ballots Corollarily, the COMELEC En Banc had ruled that petitioner, as protestee, failed to adduce evidence that the ballots found inside the ballot boxes were compromised and tampered. This strikes us as baseless and a clear departure from the teachings of Rosal.

The duty of the protestee in an election contest to provide evidence of actual tampering or any likelihood arises only when the protestant has first successfully discharge the burden or providing that the ballots have been secured to prevent tampering or susceptibility of charge, abstraction or substitution. Such need to present proof of tampering did not arise since protestant himself failed to provide evidence of the integrity of the ballots.

Case Digest: Abang-Lingkod v. COMELEC

G.R. No. 206952 : OCTOBER 22, 2013

ABANG LINGKOD PARTY-LIST (ABANG LINGKOD), Petitioner, v. COMMISSION ON ELECTIONS, Respondents.

REYES, J.:

FACTS:

ABANG LINGKOD is a sectoral organization that represents the interests of peasant farmers and fisherfolks, and was registered under the party-list system on December 22, 2009. It failed to obtain the number of votes needed in the May 2010 elections for a seat in the House of Representatives.

On August 16, 2012, ABANG LINGKOD, in compliance with the COMELEC August 9, 2012 resolution, filed with the COMELEC pertinent documents to prove its continuing compliance with the requirements under R.A. No. 7941.

In a Resolution dated November 7, 2012, the COMELEC En Banc cancelled ABANG LINGKOD registration as a party-list group. It pointed out that ABANG LINGKOD failed to establish its track record in uplifting the cause of the

marginalized and underrepresented; that it merely offered photographs of some alleged activities it conducted after the May 2010 elections.

ABANG LINGKOD field a petitioner for certiorari alleging that the COMELEC gravely abused its discretion in cancelling its registration under the party-list system. The said petition was consolidated with the separate petitions filed by 51 other party-list groups whose registration were cancelled or who were denied registration under the party-list system. The said party-list groups, including ABANG LINGKOD, were able to obtain status quo ante orders from the court.

The Court remanded to the COMELEC the cases of previously registered party-list groups, including that of ABANG LINGKOD, to determine whether they are qualified under the party-list system pursuant to the new parameters laid down by the Court and, in the affirmative, be allowed to participate in the May 2013 party-list elections.

On May 10, 2013, the COMELEC issued the herein assailed Resolution, which, inter alia, affirmed the cancellation of ABANG LINGKOD's registration under the party-list system. The COMELEC issued the Resolution dated May 10, 2013 sans any summary evidentiary hearing, citing the proximity of the May 13, 2013 elections as the reason therefor.

On May 12, 2013, ABANG LINGKOD sought a reconsideration of the COMELEC's Resolution dated May 10, 2013. However, on May 15, 2013, ABANG LINGKOD withdrew the motion for reconsideration it filed with the COMELEC and, instead, instituted the instant petition with this Court, alleging that there may not be enough time for the COMELEC to pass upon the merits of its motion for reconsideration considering that the election returns were already being canvassed and consolidated by the COMELEC.

ISSUE: hether or not ABANG LINGKOD was denied due process?

HELD: BANG LINGKOD was not denied of due process.

POLITICAL LAW: administrative due process

The essence of due process is simply an opportunity to be heard or as applied to administrative or quasi-judicial proceedings, an opportunity to explain one's side or an opportunity to seek reconsideration of the action or ruling complained of. A formal or trial type hearing is not at all times and in all instances essential. The requirements are satisfied when the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. What is frowned upon is the absolute lack of notice or hearing.

In the instant case, while the petitioner laments that it was denied due process, the Court finds that the COMELEC had afforded ABANG LINGKOD sufficient opportunity to present evidence establishing its qualification as a party-list group. It was notified through Resolution No. 9513 that its registration was to be reviewed by the COMELEC. That ABANG LINGKOD was able to file its Manifestation of Intent and other pertinent documents to prove its continuing compliance with the requirements under R.A. No. 7941, which the COMELEC set for summary hearing on three separate dates, belies its claim that it was denied due process.

There was no necessity for the COMELEC to conduct further summary evidentiary hearing to assess the qualification of ABANG LINGKOD pursuant to Atong Paglaum. ABANG LINGKOD's Manifestation of Intent and all the evidence adduced by it to establish its qualification as a party-list group are already in the possession of the COMELEC. Thus, conducting further summary evidentiary hearing for the sole purpose of determining ABANG LINGKOD's qualification under the party-list system pursuant to Atong Paglaumwould just be a superfluity.

Contrary to ABANG LINGKOD's claim, the Court, in Atong Paglaum, did not categorically require the COMELEC to conduct a summary evidentiary hearing for the purpose of determining the qualifications of the petitioners therein pursuant to the new parameters for screening party-list groups.

POLITICAL LAW: cancellation of party-list registration

Court finds that the COMELEC gravely abused its discretion in cancelling the registration of ABANG LINGKOD under the party-list system. The COMELEC affirmed the cancellation of ABANG LINGKOD's registration on the ground that it declared untruthful statement in its bid for accreditation as a party-list group in the May 2013 elections, pointing out that it deliberately submitted digitally altered photographs of activities to make it appear that it had a track record in representing the marginalized and underrepresented. Essentially, ABANG LINGKOD's registration was cancelled on the ground that it failed to adduce evidence showing its track record in representing the marginalized and underrepresented.

R.A. No. 7941 did not require groups intending to register under the party-list system to submit proof of their track record as a group. The track record requirement was only imposed in Ang Bagong Bayani where the Court held that national, regional, and sectoral parties or organizations seeking registration under the party-list system must prove through their, inter alia, track record that they truly represent the marginalized and underrepresented.

In Atong Paglaum, the Court has modified to a great extent the

jurisprudential doctrines on who may register under the party-list system and the representation of the marginalized and underrepresented. For purposes of registration under the party-list system, national or regional parties or organizations need not represent any marginalized and underrepresented sector; that representation of the marginalized and underrepresented is only required of sectoral organizations that represent the sectors stated under Section 5 of R.A. No. 7941 that are, by their nature, economically marginalized and underrepresented.

Contrary to the COMELEC's claim, sectoral parties or organizations, such as ABANG LINGKOD, are no longer required to adduce evidence showing their track record, i.e. proof of activities that they have undertaken to further the cause of the sector they represent. Indeed, it is enough that their principal advocacy pertains to the special interest and concerns of their sector. Otherwise stated, it is sufficient that the ideals represented by the sectoral organizations are geared towards the cause of the sector/s, which they represent.

Dissenting, Mr. Justice Leonen, however, maintains that parties or organizations intending to register under the party-list system are still required to present a track record notwithstanding the Court's pronouncement in Atong Paglaum; that the track record that would have to be presented would only differ as to the nature of their group/organization. He opines that sectoral organizations must prove their links with the marginalized and underrepresented while national or regional parties or organizations must show that they have been existing as a bona fide organization.

Case Digest: Araro Party-List vs. COMELEC

G.R. No. 192803: December 10, 2013

ALLIANCE FOR RURAL AND AGRARIAN RECONSTRUCTION, INC., ALSO KNOWN AS ARARO PARTY-LIST, Petitioner, v. COMMISSION ON ELECTIONS, Respondent.

LEONEN, J.:FACTS:

The COMELEC En Banc sitting as the National Board of Canvassers in the May 10, 2010 elections initially proclaimed (28) party-list organizations as winners involving a total of (35) seats guaranteed and additional seats. Petitioner, Alliance for Rural and Agrarian Reconstruction, Inc., (ARARO) was a duly accredited party-list under Republic Act No. 7941 ranked fiftieth

(50th).

Petitioner then filed an election protest before the House of Representatives Electoral Tribunal (HRET) questioning the Resolution of the COMELEC that proclaimed the 28 party-list groups.

Petitioner asks that this Court to modify the COMELEC's interpretation of the formula stated in BANAT v. COMELEC by making the divisor for the computation of the percentage votes, from total number of votes cast minus the votes for the disqualified party-list candidates, to the total number of votes cast regardless whether party-list groups are disqualified; and enjoin the public COMELEC from proclaiming the remaining winning party-list candidates until it modifies the interpretation of the formula used in BANAT v. COMELEC to the formula proposed by the petitioner.

The Court did not issue any TRO, the National Board of Canvassers proclaimed the winning party-list groups.

The petitioner suggests that the formula used by the COMELEC is flawed because votes that were spoiled or that were not made for any party-lists were not counted.

The National Board of Canvassers Resolution No. 10-009 applies the formula used in BANAT v. COMELEC, G.R. No. 179271 and G.R. No. 179295, April 21, 2009to arrive at the winning party-list groups and their guaranteed seats, where:

Number of votes of party-list over Proportion or Percentage of votes garnered by party-list equals the Total number of votes for party-list candidates

The Proportion or Percentage of votes garnered by party-list should be greater than or equal to 2% or 0.02 to entitle a party-list candidate to one (1) seat in the first round. There will be a second round if the total number of guaranteed seats awarded in the first round is less than the total number of party-list seats available. Thus:

Total number of party-list seats available - Number of seats allocated in first round x Proportion or Percentage of votes garnered by party-list = Additional seats awarded

If the total seats available for party-lists are not yet awarded after the second round (this is computed by getting the sum of the seats awarded in the first round and the additional seats awarded in the second round), the next in the party-list ranking will be given one (1) seat each until all seats are fully distributed. A three-seat cap per party-list, however, is imposed on

winning groups. Fractional seats are not rounded off and are disregarded.

The petitioner argues that the Commission on Elections interpretation of the formula used in BANAT v. COMELEC is flawed because it is not in accordance with the law.The petitioner distinguishes the phrases,valid votes cast for party-list candidates on the one hand as against votes cast for the party-list system on the other.

The petitioner argues that the correct interpretation of the provisions of Republic Act No. 7941 or the Party-list Law does not distinguish between valid and invalid votes.

The COMELEC argues that this will contradict CIBAC v. COMELEC, 549 Phil. 767 (2007) and BANAT v. COMELEC, G.R. No. 179271 and G.R. No. 179295, April 21, 2009. It asserts that neither can the phrase be construed to include the number of voters who did not even vote for any qualified party-list candidate, as these voters cannot be considered to have cast any vote "for the party-list system."

ISSUES:

Whether the case is already moot and academic

Whether petitioners have legal standing

Whether the COMELEC committed grave abuse of discretion in its interpretation of the formula used in BANAT v. COMELEC to determine the party-list groups that would be proclaimed in the 2010 elections.

HELD: The petition is moot and academic

POLITICAL LAW - moot and academic case

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical value. As a rule, courts decline jurisdiction over such case, or dismiss it on ground of mootness. Mendoza v. Villas, G.R. No. 187256, February 23, 2011

Several supervening events have already rendered this case moot and academic. First, the Commission on Elections En Banc already proclaimed other winning party-list groups.Second, the term of office of the winning party-list groups in the May 2010 national elections ended on June 30, 2013. Finally, the conduct of the May 13, 2013 elections resulted in a new set of party-list groups.

We held that the expiration of the challenged term of office renders the corresponding Petition moot and academic.

However, the following exceptions to the rule of declining jurisdiction over moot and academic cases are allowed: (1) there was a grave violation of the Constitution; (2) the case involved a situation of exceptional character and was of paramount public interest; (3) the issues raised required the formulation of controlling principles to guide the Bench, the Bar and the public; and (4) the case was capable of repetition yet evading review. Funa v. Acting Secretary of Justice Agra,G.R. No. 191644, February 19, 2013

On the importance of the assailed formula, this Court will discuss the issues raised by the petitioner as these are capable of repetition yet evading review and for the guidance of the bench, bar, and public.

POLITICAL LAW - real party in interest

"A real party in interest is the party who stands to be benefited or injured by the judgement in the suit, or the party entitled to the avails of the suit." The party's interest must be direct, substantial, and material.

However despite any new computation, ARAROs proposed divisor of total votes cast for the party-list system whether valid or invalid still fails to secure one seat for ARARO. Petitioner does not suffer a direct, substantial or material injury from the application of the formula interpreted and used in BANAT in proclaiming the winning party-lists in the assailed National Board of Canvassers Resolution. The computation proposed by petitioner ARARO even lowers its chances to meet the 2% threshold required by law for a guaranteed seat. Its arguments will neither benefit nor injure the party. Thus, it has no legal standing to raise the argument in this Court.

POLITICAL LAW formula used for determination of winning party list candidates

In applying and interpreting the provisions of Section 6 of Republic Act No. 6646, we said inCayat v. Commission on Elections, G.R. No. 163776. April 24, 2007that votes cast in favor of a candidate "disqualified with finality" should be considered stray and not be counted. To be consistent, the party-list group in the ballot that has been disqualified with finality and whose final disqualification was made known to the electorate by the Commission on Elections should also not be included in the divisor. This is to accord weight to the disqualification as well as accord respect to the inherent right of suffrage of the voters.

Thus, the formula to determine the proportion garnered by the party-list

group would now henceforth be:

Number of votes of party-list over the Total number of valid votes for party-list candidates equals the Proportion or Percentage of votes garnered by party-list

The total votes cast for the party-list system include those votes made for party-list groups indicated in the ballot regardless of the pendency of their motions for reconsideration or petitions before any tribunal in relation to their cancellation or disqualification cases. However, votes made for those party-list groups whose disqualification attained finality prior to the elections should be excluded if the electorate is notified of the finality of their disqualification by the Commission on Elections. The divisor also shall not include invalid votes.

Hence, modifying the formula used in BANAT v. COMELEC. The refined formula shall apply prospectively to succeeding party-list elections from the date of the finality of the case.

ATONG PAGLAUM, INC VS. COMELEC, G.R. No. 203766, and companion cases, February 26, 2013

The two issues raised before the Supreme Court are:

first, whether the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in disqualifying petitioners from participating in the 13 May 2013 party-list elections, either by denial of their new petitions for registration under the party-list system, or by cancellation of their existing registration and accreditation as party-list organizations using the criteria laid down by the Supreme Court in Ang Bagong Bayani and Barangay Association for National Advancement and Transparency v. Commission on Elections (BANAT) ; and

second , whether the criteria for participating in the party-list system laid down in Ang Bagong Bayani and Barangay Association for National Advancement and Transparency v. Commission on Elections (BANAT) should be applied by the COMELEC in the coming 13 May 2013 party-list elections.

The COMELEC did not commit grave abuse of discretion in following

prevailing decisions of the Supreme Court in disqualifying petitioners from participating in the coming 13 May 2013 party-list elections. However, since

the Supreme Court adopts in this Decision new parameters in the qualification of national, regional, and sectoral parties under the party-list system, thereby abandoning the rulings in the decisions applied by the COMELEC in disqualifying petitioners, all the present petitions are remanded for the COMELEC to determine who are qualified to register under the partylist system, and to participate in the coming 13 May 2013 party-list elections, under the new parameters prescribed in this Decision.

The 1987 Constitution provides the basis for the party-list system of representation. Simply put, the party-list system is intended to democratize political power by giving political parties that cannot win in legislative district elections a chance to win seats in the House of Representatives. The 1987 Constitution provides:

Section 5, Article VI

(1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.

(2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.

In short, the party-list system is composed of three different groups: (1) national parties or organizations; (2) regional parties or organizations; and (3) sectoral parties or organizations. National and regional parties or organizations are different from sectoral parties or organizations. National and regional parties or organizations need not be organized along sectoral lines and need not represent any particular sector.

The ruling of the Supreme Court in ANG BAGONG BAYANI and BANAT that major and national parties are not allowed to join the party-list is abandoned.

In determining who may participate in the coming 13 May 2013 and subsequent party-list elections, the COMELEC shall adhere to the following parameters:

Three different groups may participate in the party-list system: (1) national parties or organizations, (2) regional parties or organizations, and (3) sectoral parties or organizations.

National parties or organizations and regional parties or organizations do not need to organize along sectoral lines and do not need to represent any “marginalized and underrepresented” sector.

Political parties can participate in party-list elections provided they register under the party-list system and do not field candidates in legislative district elections. A political party, whether major or not, that fields candidates in legislative district elections can participate in partylist elections only through its sectoral wing that can separately register under the party-list system. The sectoral wing is by itself an independent sectoral party, and is linked to a political party through a coalition.

Sectoral parties or organizations may either be “marginalized and underrepresented” or lacking in “well-defined political constituencies.” It is enough that their principal advocacy pertains to the special interest and concerns of their sector. The sectors that are “marginalized and underrepresented” include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, and overseas workers. The sectors that lack “well-defined political constituencies” include professionals, the elderly, women, and the youth.

A majority of the members of sectoral parties or organizations that represent the “marginalized and underrepresented” must belong to the “marginalized and underrepresented” sector they represent. Similarly, a majority of the members of sectoral parties or organizations that lack “well-defined political constituencies” must belong to the sector they represent. The nominees of sectoral parties or organizations that represent the “marginalized and underrepresented,” or that represent those who lack “well-defined political constituencies,” [A] either must belong to their respective sectors, or [B] must have a track record of advocacy for their respective sectors. The nominees of national and regional parties or organizations must be bona-fide members of such parties or organizations.

National, regional, and sectoral parties or organizations shall not be disqualified if some of their nominees are disqualified, provided that they have at least one nominee who remains qualified.

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ROBERTO L. DIZON vs. COMMISSION ON ELECTIONS and MARINO P. MORALES

CARPIO, J.:

Facts:

Roberto L. Dizon, a resident of Mabalacat, Pampanga filed a case with the COMELEC to disqualify Marino P. Morales, the incumbent mayor of Mabalacat because under Section 43 of the Local Government Code, no local elective official is allowed to serve for more than three (3) consecutive terms for the same position. Dizon alleged that Morales was municipal mayor in 1995, 1998, 2001 and 2004. Thus, Morales should not have been allowed to have filed his Certificate of Candidacy on March 2007 for the same position and same municipality.

Morales, on the other hand, asserts that he is still eligible and qualified to run as mayor of Mabalacat because he was not elected for the said position in the 1998 elections. He avers that the COMELEC en banc affirmed the decision of the Regional Trial Court declaring Anthony D. Dee as the duly elected Mayor of Mabalacat in the 1998 elections. Morales also alleges that his term should be reckoned from 2001 or when he was proclaimed as Mayor of Mabalacat. Respondent further asserts that his election in 2004 is only for his second term. Hence, the three term rule provided under the Local Government Code is not applicable to him.

According to COMELEC’s second division, Respondent was elected mayor of Mabalacat in 1995,1998, and 2001. When he ran in 2004, the Supreme Court ruled in May 2007 (3 years later) that respondent has violated the three-term limit and thus was not considered a candidate in the 2004 elections. The vice-mayor assumed office as mayor from May 2007-June 2007. Hence, his failure to qualify for the 2004 elections is a gap and allows him to run again for the same position in the 2007 elections.

Issue: WON Morales, in running for mayor in the 2007 elections, has violated the three-term limit rule

Held: No. The petition has no merit.

Dizon claims that the 2007-2010 term is Morales’ fifth term in office. However, according to the SC, it unseated Morales in its May 2007 decision

by canceling his Certificate of Candidacy dated 30 December 2003. This cancellation disqualified Morales from being a candidate in the May 2004 elections.

We concede that Morales occupied the position of mayor of Mabalacat for the following periods: 1 July 1995 to 30 June 1998; 1 July 1998 to 30 June 2001; 1 July 2001 to 30 June 2004; and 1 July 2004 to 16 May 2007.

Both Article X, Section 8 of the Constitution and Section 43(b) of the Local Government Code state that the term of office of elective local officials, except barangay officials, shall be three years, and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

There should be a concurrence of two conditions for the application of the disqualification: (1) that the official concerned has been elected for three consecutive terms in the same local government post and (2) that he has fully served three consecutive terms.

However, because of his disqualification, Morales was not the duly elected mayor for the 2004-2007 term and did not hold the position of mayor of Mabalacat for the full term. Morales cannot be deemed to have served the full term of 2004-2007 because he was ordered to vacate his post before the expiration of the term. Thus, the period from 17 May 2007 to 30 June 2007 served as a gap. As a result, the present 1 July 2007 to 30 June 2010 term is effectively Morales’ first term for purposes of the three-term limit rule.

The respondents harp on the delay in resolving the election protest between petitioner and his then opponent Alvez which took roughly about three year. The SC notes that such delay cannot be imputed to the petitioner. There is no specific allegation or proof that the delay was due to any political maneuvering.

Aldovino vs Comelec

FACTS:Lucena City councilor Wilfredo F. Asilo was elected to the said office for three consecutive terms: 1998-2001, 2001-2004, and 2004-2007. In September 2005, during his third term of office, the Sandiganbayan issued an order of 90-day preventive suspension against him in relation to a criminal case. The

said suspension order was subsequently lifted by the Court, and Asilo resumed the performance of the functions of his office.Asilo then filed his certificate of candidacy for the same position in 2007. His disqualification was sought by herein petitioners on the ground that he had been elected and had served for three consecutive terms, in violation of the three-term Constitutional limit.ISSUE:WON the suspensive condition interrupts the three-term limitation rule of COMELEC?

RULING:NO. The preventive suspension of public officials does not interrupt their term for purposes of the three-term limit rule under the Constitution and the Local Government Code (RA 7160).

The candidacy of Lucena City Councilor Wilfredo F. Asilo for a fourth term in the 2007 elections was in contravention of the three-term limit rule of Art. X, sec. 8 of the Constitution since his 2004-2007 term was not interrupted by the preventive suspension imposed on him, the SC granted the petition of Simon B. Aldovino, Danilo B. Faller, and Ferdinand N. Talabong seeking Asilo’s disqualification.“Preventive suspension, by its nature, does not involve an effective interruption of service within a term and should therefore not be a reason to avoid the three-term limitation,” held the Court. It noted that preventive suspension can pose as a threat “more potent” than the voluntary renunciation that the Constitution itself disallows to evade the three-term limit as it is easier to undertake and merely requires an easily fabricated administrative charge that can be dismissed soon after a preventive suspension has been imposed.

Maruhom vs COMELEC

Maruhom challenges in her Petition the jurisdiction of the COMELEC in declaring her registration in Marantao void. She asserts that Section 2, Article IX(c) of the Constitution prohibits the COMELEC from assuming jurisdiction or deciding issues involving the right to vote. Section 33 of Republic Act No. 8189, or the Voter’s Registration Act of 1996 (VRA), confers upon the MTCs and MeTCs original and exclusive jurisdiction over all cases of inclusion and exclusion of voters in their respective cities or municipalities.

ISSUE: Is the challenge on Maruhom’s registration, an issue on the “right to vote” and thus, beyond COMELEC jurisdiction?

HELD: The present case is not about her being denied her right to register as a voter, but is all about her making false material representations in her

COC, which would warrant the cancellation of the same. The resolutions of the COMELEC en banc merely defeated Maruhom’s intent to run for elective office, but it did not deprive her of her right to vote. Although Maruhom’s registration in Marantao is void, her registration in Marawi still subsists. She may be barred from voting or running for mayor in the former, but she may still exercise her right to vote, or even run for an elective post, in the latter. It is settled that the COMELEC has jurisdiction over a petition filed under Section 78 of the OEC.[21] In the exercise of such jurisdiction, it is within the competence of the COMELEC to determine whether false representation as to material facts was made in the COC.

[RICARDO P. PRESBITERO, JR., JANET PALACIOS, CIRILO G.ABRASIA, ARMANDO G. ALVAREZ, NENITO A. ARMAS, RENE L.CORRAL, JOEMARIE A. DE JUAN, ENRILICE C. GENOBIS, WILLIAMA. PRESBITERO and REYNO N. SOBERANO, vs. COMMISSION ONELECTIONS, ROMMEL YOGORE, GLORY GOMEZ, DAN YANSON, JOENITO DURAN, SR.,LUCIUS BODIOS and REY SUMUGAT. G.R. No. 178884. June 30,2008. Nachura

ELECTION LAW A contention on failure of election and exercise of grave abuse of discretion by

COMELECFACTS The MCTC Valladolid-San Enrique-Pulupandan, Negros Occidental ordered theMunicipal Election Officer (EO) of Valladolid to include the names of 946individuals in the list of qualified voters of the said municipality for the May 2007elections.Prompted by the advice of COMELEC Manila that decisions of trial courts of limited jurisdiction in inclusion/exclusion cases attain finality only after the lapseof five days from receipt of notice sans any appeal there from, the actingprovincial election supervisor (PES), directed the Election Officer on May 13, 2007not to comply with the MCTC order. Thus, the said 946 were disallowed by theboard of election inspectors to vote. These 946 moved for the issuance of aSection 1-DPage 4 Political Law Temporary Restraining Order (TRO) to prevent the Municipal Board of Canvassersfrom canvassing the election returns & from proclaiming the winning candidatesfor the local positions in the municipality. Such was granted.However, the Municipal Board of Canvassers continued canvassing

andproclaimed the winning candidates. Presbitero and others thus filed before theCOMELEC a petition for declaration of failure of election and the holding of aspecial election because 946 voters were disenfranchised, the Election Officer of the municipality (also the Ex-officio Chair of the Municipal Board of Canvassers)was abruptly replaced, the number of voters was unusually low, no less than2,000 supporters of petitioners failed to vote as their names were missing fromthe list of voters. To the contrary, petitioners admitted that elections were held,that 70% of the registered voters were able to cast their votes, and that therespondents emerged as winners. The Municipal Board of Canvassers defied the TRO, and the acting provincialelection supervisor and acting election officer threatened & coerced the vice-chair and member-secretary of the Municipal Board of Canvassers to continuewith the canvassing and the proclamation.ISSUE Whether or not there was a failure of election and contending that the COMELECgravely abused its discretion in the issuance of the said resolution? RULING The court ruled in favor of the COMELEC and that there was no failure of elections. A failure of election may be declared only in the three instances statedin Section 6 of the Omnibus Election Code:1. the election has not been held2. the election has been suspended before the hour fixed by law3. and the preparation and the transmission of the election returnshave given rise to the consequent failure to elect, meaningnobody emerged as the winner.Furthermore, the reason for such failure of election should beforce majeure,violence, terrorism, fraud or other analogous causes. Finally, before theCOMELEC can grant a verified petition seeking to declare a failure of election, theconcurrence of 2 conditions must be established, namely:1. no voting has taken place in the precincts concerned on thedate fixed by law or, even if there was voting, the electionnevertheless resulted in a failure to electSection 1-DPage 4 Political Law2. the votes cast would affect the result of the election.In the instant case, it is admitted by the petitioners that elections were held inthe subject locality. Also, the private respondents and four of the petitioners wonin the elections and were proclaimed as the duly elected municipal officials. There is nothing in the records from which the Court can make even a slimdeduction that there has been a failure to elect. Absent any proof that the votingdid not take place, the alleged disenfranchisement of the 946 individuals and2,000 more supporters of the petitioners cannot even be considered as a basisfor

the declaration of a failure of election.Had petitioners been aggrieved by the allegedly illegal composition andproceedings of the Municipal Board of Canvassers, then they should have filedthe appropriate pre-proclamation case contesting the aforesaid composition orproceedings of the board, rather than erroneously raising the same as groundsfor the declaration of failure of election. On the Temporary Restraining Orderissued by the MCTC and the subsequent defiance thereof by the Municipal Boardof Canvassers, suffice it to state that the propriety of suspending the canvass of returns or the proclamation of candidates is a pre-proclamation issue that issolely within the cognizance of the COMELEC. In sum, petitioners have notadduced any ground which will warrant a declaration of failure of election.WHEREFORE, premises considered, the petition for certiorari and prohibition isDISMISSED

Romulo F. Pecson Vs. Commission on Elections, G.R. No. 182865. December 24, 2008

This petition for certiorari filed by Romulo F. Pecson (Pecson) under Rule 64, in relation with Rule 65 of the Revised Rules of Court seeks to set aside and annul the Resolution dated May 21, 2008 of the Commission on Elections en banc (COMELEC) in SPR 60-2007.[1] The assailed Resolution nullified the grant (via a Special Order) by the Regional Trial Court (RTC), Branch 56, Angeles City, of the execution pending appeal of its Decision in the election contest between Pecson and the private respondent Lyndon A. Cunanan (Cunanan), the proclaimed winner in the 2007 mayoralty election in Magalang, Pampanga.

THE ANTECEDENTS

Pecson and Cunanan were candidates for the mayoralty position in the Municipality of Magalang, Province of Pampanga in the May 2007 elections. On May 17, 2007, Cunanan was proclaimed the winning candidate, garnering a total of 12,592 votes as against Pecsons 12,531, or a margin of 61 votes. Cunanan took his oath and assumed the position of Mayor of Magalang. Soon thereafter, Pecson filed an election protest, docketed as EPE No. 07-51, with the RTC.

On November 23, 2007, the RTC rendered a Decision in Pecsons favor. The RTC ruled that Pecson received a total of 14,897 votes as against Cunanans 13,758 a vote margin of 1,139.

Cunanan received a copy of the Decision on November 26, 2007 and filed a Notice of Appeal the day after. The RTC issued on November 27, 2008 an Order noting the filing of the notice of appeal and the payment of appeal fee and directing the transmittal of the records of the case to the Electoral Contests Adjudication Department (ECAD) of the COMELEC. Pecson, on the other hand, filed on November 28, 2007 an Urgent Motion for Immediate Execution Pending Appeal, claiming that Section 11, Rule 14 of the Rules of Procedure in Election Contests before the Courts Involving Elective Municipal and Barangay Officials[2] (Rules) allows this remedy.

The RTC granted Pecsons motion for execution pending appeal via a Special Order dated December 3, 2007 (Special Order) but suspended, pursuant to the Rules, the actual issuance of the writ of execution for twenty (20) days. The Special Order states the following reasons:

1. The result of the judicial revision show[s] that the protestant garnered 14,897 votes as against protestees 13,758 votes or a plurality of 1,139 votes. The victory of the protestant is clearly and manifestly established by the rulings and tabulation of results made by the Court x x x;

2. It is settled jurisprudence that execution pending appeal in election cases should be granted to give as much recognition to the worth of a trial judges decision as that which is initially ascribed by the law to the proclamation by the board of canvassers. The Court holds that this wisp of judicial wisdom of the Supreme Court enunciated in the Gahol case and subsequent cases citing it is borne by the recognition that the decision of the trial court in an election case is nothing but the court upholding the mandate of the voter, which has as its source no other than the exercise of the constitutional right to vote. While it is true that the protestee can avail of the remedy of appeal before the COMELEC, the Court is more convinced that between upholding the mandate of the electorate of Magalang, Pampanga which is the fruit of the exercise of the constitutional right to vote and a procedural remedy, the Court is more inclined to uphold and give effect to and actualize the mandate of the electorate of Magalang. To the mind of the Court, in granting execution pending appeal the Court is being true to its bounden duty to uphold the exercise of constitutional rights and gives flesh to the mandate of the people. The foregoing is, as far as the Court is concerned, considered far superior circumstance that convinces the Court to grant protestants motion;

3. Public interest and the will of the electorate must be respected and given meaning;

4. In the case of Navarosa v. Comelec, the Supreme Court held that In the Gahol case, the Court gave an additional justification for allowing execution pending appeal of decisions of trial courts, thus: Public policy underlies it, x x x [S]omething had to be done to strike the death blow at the pernicious grab-the-proclamation-prolong-the-protest technique often, if not invariably, resorted to by unscrupulous politicians who would render nugatory the peoples verdict against them and persist in continuing in an office they very well know they have no legitimate right to hold. x x x. A primordial public interest is served by the grant of the protestants motion, i.e., to obviate a hollow victory for the duly elected candidate. In the words of Chief Justice Cesar Bengzon, The well known delay in the adjudication of election protests often gave the successful contestant a mere pyrrhic victory, i.e., a vindication when the term of office is about to expire or has expired.

Expectedly, Cunanan moved to reconsider the Order, arguing that the RTC gravely abused its discretion: (1) in ruling that there were good reasons to issue a writ of execution pending appeal; and (2) in entertaining and subsequently granting the motion for execution pending appeal despite the issuance of an order transmitting the records of the case.

Thereupon, Cunanan filed with the COMELEC a Petition for Application of Preliminary Injunction with Prayer for Status Quo Ante Order/Temporary Restraining Order (TRO) with Prayer for Immediate Raffle. He argued in his petition that: (1) the RTC Decision did not clearly establish Pecsons victory or his (Cunanans) defeat a requirement of Section 11, Rule 14 of the Rules; among other reasons, the number of votes the RTC tallied and tabulated exceeded the number of those who actually voted and the votes cast for the position of Mayor, and (2) the RTC had constructively relinquished its jurisdiction by the issuance of the Order dated November 27, 2007 directing the transmittal of the records of the case.

The Second Division of the COMELEC issued on January 4, 2008 a 60-day TRO directing: (1) the RTC to cease and desist from issuing or causing the issuance of a writ of execution or implementing the Special Order; and (2) Cunanan to continue performing the functions of Mayor of Magalang.

In his Answer and/or Opposition, with Prayer for Immediate Lifting of TRO, Pecson argued that: (1) preliminary injunction cannot exist except as part or incident of an independent action, being a mere ancillary remedy that exists only as an incident of the main proceeding; (2) the petition for application of preliminary injunction, as an original action, should be dismissed outright; and (3) Cunanan is guilty of forum shopping, as he filed a motion for reconsideration of the Special Order simultaneously with the petition filed with the COMELEC.

The COMELECs Second Division denied Cunanans petition in a Resolution dated March 6, 2008. It ruled that: (1) the resolution of the motion for execution pending appeal is part of the residual jurisdiction of the RTC to settle pending incidents; the motion was filed prior to the expiration of the period to appeal and while the RTC was still in possession of the original record; and (2) there is good reason to justify the execution of the Decision pending appeal, as Pecsons victory was clearly and manifestly established. Ruling on the alleged defect in the RTC count, the Second Division ruled:

[A]fter a careful scrutiny of the Decision, We found that the error lies in the trial courts computation of the results. In its Decision, the trial court, to the votes obtained by the party (as per proclamation of the MBOC), deducted the votes per physical count after revision and deducted further the invalid/nullified ballots per the trial courts appreciation and thereafter added the valid claimed ballots per the trial courts appreciation, thus:

Votes obtained per proclamation of the MBOC (-) Votes per physical count (-) Invalid or nullified ballots (+) Valid claimed ballots = Total Votes Obtained

The formula used by the trial court is erroneous as it used as its reference the votes obtained by the parties as per the proclamation of the MBOC. It complicated an otherwise simple and straightforward computation, thus leading to the error. The correct formula should have been as follows:

Total Number of Uncontested Ballots (+) Valid Contested Ballots (+) Valid Claimed Ballots = Total Votes Obtained

Using this formula and applying the figures in pages 744 and 745 of the trial courts Decision, the results will be as follows:

For the Petitioner Cunanan

Total Number of Uncontested Ballots 9,656

Add: Valid Contested Ballots 2,058

Add: Valid Claimed Ballots 36

Total Votes of Petitioner 11,750

For the Private Respondent (Pecson)

Total Number of Uncontested Ballots 9,271

Add: Valid Contested Ballots 2,827

Add: Valid Claimed Ballots 39

Total Votes of Petitioner 12,134

Using the correct formula, private respondent still obtained a plurality of the votes cast and enjoys a margin of 384 votes over the petitioner. Although not as wide as the margin found by the trial court, We are nevertheless convinced that the victory of private respondent has been clearly established in the trial courts decision for the following reasons:

First, the error lies merely in the computation and does not put in issue the appreciation and tabulation of votes. The error is purely mathematical which will not involve the opening of ballot boxes or an examination and

appreciation of ballots. It is a matter of arithmetic which calls for the mere clerical act of reflecting the true and correct votes of the candidates.

Second, the error did not affect the final outcome of the election protest as to which candidate obtained the plurality of the votes cast.

We are likewise convinced that the assailed order states good or special reasons justifying the execution pending appeal, to wit:

(1) The victory of the protestant was clearly and manifestly established;

(2) Execution pending appeal in election cases should be granted to give as much recognition to the worth of a trial judges decision as that which is initially ascribed by the law to the proclamation by the board of canvassers;

(3) Public interest and the will of the electorate must be respected and given meaning; and

(4) Public policy underlies it, as something had to be done to strike the death blow at the pernicious grab-the-proclamation-prolong-the-protest technique often, if not invariably resorted to by unscrupulous politicians.

Such reasons to Our mind constitute superior circumstances as to warrant the execution of the trial courts decision pending appeal.

Pecson thus asked for the issuance of a writ of execution via an Ex-Parte Motion. Despite Cunanans opposition, the RTC granted Pecsons motion and issued the writ of execution on March 11, 2008. Pecson thereafter assumed the duties and functions of Mayor of Magalang.

The Assailed Resolution

On Cunanans motion, the COMELEC en banc issued its Resolution dated May 21, 2008 reversing the ruling of the Second Division insofar as it affirmed the

RTCs findings of good reasons to execute the decision pending appeal. It affirmed the authority of the RTC to order execution pending appeal; it however nullified the March 11, 2008 writ of execution on the ground that the RTC could no longer issue the writ because it had lost jurisdiction over the case after transmittal of the records and the perfection of the appeals of both Cunanan and Pecson (to be accurate, the lapse of Pecsons period to appeal).

On the propriety of executing the RTC Decision pending appeal, the COMELEC en banc ruled that it was not convinced of the good reasons stated by the RTC in its Special Order. It ruled that recognition of the worth of a trial judges decision, on the one hand, and the right to appeal, including the Commissions authority to review the decision of the trial court, on the other, requires a balancing act; and not every invocation of public interest will suffice to justify an execution pending appeal. It added that at a stage when the decision of the trial court has yet to attain finality, both the protestee and the protestant are to be considered presumptive winners. It noted too that the Second Division already cast a doubt on the correctness of the number of votes obtained by the parties after the trial courts revision; thus, the resolution of the pending appeal becomes all the more important. Between two presumptive winners, considering the pending appeal of the election protest to the Commission and public service being the prime consideration, the balance should tilt in favor of non-disruption of government service. The execution of the RTC Decision pending appeal would necessarily entail the unseating of the protestee, resulting not only in the disruption of public service, but also in confusion in running the affairs of the government; a subsequent reversal too of the RTC Decision also results in the unseating of the protestant. This situation (i.e., the series of turn-over of the seat of power from one presumptive winner to another) cannot but cause irreparable damage to the people of Magalang, and overweighs the reasons asserted by the RTC in its Special Order. In the end, according to the COMELEC, public interest is best served when he who was really voted for the position is proclaimed and adjudged as winner with finality.

The Petition and the Prayer for the issuance of a Status Quo Order

In imputing grave abuse of discretion to the COMELEC en banc, Pecson argues that: (1) the RTC Decision clearly showed Pecsons victory; (2) the reasons for the reversal of the RTC Decision practically render impossible a grant of an execution pending appeal; and (3) the RTC correctly found the presence of the requisites for execution pending appeal.

Threatened to be unseated, Pecson asked, as interim relief, for the issuance of a Status Quo Order. He claimed that: (1) the Department of Interior and Local Government already recognized (based on the issuance of the assailed Resolution) Cunanans assumption of office even if the assailed Resolution had not attained finality; and (2) in order to prevent grave and irreparable injury to Pecson and the perpetuation of a travesty of justice, a Status Quo Order must immediately issue.

THE COURTS RULING

We find the petition meritorious.

The remedy of executing court decisions pending appeal in election contests is provided under the Rules as follows:

SEC. 11. Execution pending appeal . On motion of the prevailing party with notice to the adverse party, the court, while still in possession of the original records, may, at its discretion, order the execution of the decision in an election contest before the expiration of the period to appeal, subject to the following rules:

(a) There must be a motion by the prevailing party with three-day notice to the adverse party. Execution pending appeal shall not issue without prior notice and hearing. There must be good reasons for the execution pending appeal. The court, in a special order, must state the good or special reasons justifying the execution pending appeal. Such reasons must:

(1) constitute superior circumstances demanding urgency that will outweigh the injury or damage should the losing party secure a reversal of the judgment on appeal; and

(2) be manifest, in the decision sought to be executed, that the defeat of the protestee or the victory of the protestant has been clearly established.

(b) If the court grants execution pending appeal, an aggrieved party shall have twenty working days from notice of the special order within which to secure a restraining order or status quo order from the Supreme Court of the Commission on Elections. The corresponding writ of execution shall issue after twenty days, if no restraining order or status quo order is issued. During such period, the writ of execution pending appeal shall be stayed. [3]

This remedy is not new. Under prevailing jurisprudence,[4] the remedy may be resorted to pursuant to the suppletory application of the Rules of Court, specifically its Section 2, Rule 39.[5] What the Rules (A.M. No. 07-4-15-C) has done is to give the availability of the remedy the element of certainty. Significantly, the Rules similarly apply the good reason standard (in fact, the even greater superior circumstances standard) for execution pending appeal under the Rules of Court, making the remedy an exception rather than the rule.

At the heart of the present controversy is the question of whether there has been compliance with the standards required for an execution pending appeal in an election contest. As heretofore cited, the RTC found all these requisites present. The Second Division of the COMELEC supported the RTCs ruling, but the COMELEC en banc held a contrary view and nullified the execution pending appeal. This en banc ruling is now before us.

Our review of a COMELEC ruling or decision is via a petition for certiorari. This is a limited review on jurisdictional grounds, specifically of the question on whether the COMELEC has jurisdiction, or whether the assailed order or resolution is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction. Correctly understood, grave abuse of discretion is such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or [an] exercise of power in an arbitrary and despotic manner by reason of passion or personal hostility, or an exercise of judgment so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal

to perform the duty enjoined, or to act in a manner not at all in contemplation of law.[6]

Because this case is essentially about the implementation of an RTC decision pending appeal, we must first dwell on the writ the RTC issued. The COMELEC ruled in this regard that the writ of execution the RTC issued on March 11, 2008 was void; the RTC could no longer issue the writ because of the lapse of the period for appeal, and because the RTC no longer held the records of the election contest which had then been transmitted to the ECAD-COMELEC.

Cunanan argues in his Comment that this ruling has become final and executory because Pecson did not question it in the present petition. In Cunanans view, the finality of this aspect of the COMELEC ruling renders the issue of the nullification of the Special Order moot and academic, as any ruling we shall render would serve no practical purpose; it can no longer be implemented since the means (obviously referring to the writ the RTC issued on March 11, 2008) of executing the RTC decision (i.e., seating Pecson as Mayor of Magalang) has, to all intents and purposes, been nullified and rendered ineffective.

We see no merit in Cunanans argument. The writ of execution issued by the RTC is a mere administrative enforcement medium of the Special Order the main order supporting Pecsons motion for the issuance of a writ of execution. The writ itself cannot and does not assume a life of its own independent from the Special Order on which it is based. Certainly, its nullification does not carry with it the nullification of the Special Order. This consequence does not of course hold true in the reverse situation the nullification of the Special Order effectively carries with it the nullification of its implementing writ and removes the basis for the issuance of another implementing writ. In the present case, the reality is that if and when we ultimately affirm the validity of the Special Order, nothing will thereafter prevent the RTC from issuing another writ.

Another legal reality is that the COMELEC is wrong in its ruling that the RTC could no longer actually issue the writ on March 11, 2008 because it no longer had jurisdiction to do so after the appeal period lapsed and after the records were transmitted to the ECAD-COMELEC. That the RTC is still in

possession of the records and that the period to appeal (of both contending parties) must have not lapsed are important for jurisdictional purposes if the issue is the authority of the RTC to grant a Special Order allowing execution pending appeal; they are requisite elements for the exercise by the RTC of its residual jurisdiction to validly order an execution pending appeal, not for the issuance of the writ itself. This is clearly evident from the cited provision of the Rules which does not require the issuance of the implementing writ within the above limited jurisdictional period. The RTC cannot legally issue the implementing writ within this limited period for two reasons: (1) the cited twenty-day waiting period under Section 11(b); and (2) the mandatory immediate transmittal of the records to the ECAD of the COMELEC under Section 10 of the Rules.[7]

On the substantive issue of whether a writ of execution pending appeal should issue, we do not agree with the COMELECs view that there are two presumptive winners prior to its ruling on the protest case. We likewise cannot support its balancing act view that essentially posits that given the pendency of the appeal and the lack of finality of a decision in the election protest, the unseating of the protestee, and the need for continuity of public service, the balance should tilt in favor of continuity or non-disruption of public service; hence, the execution pending appeal should be denied.

As Pecson correctly argued, this reasoning effectively prevents a winner (at the level of the courts) of an election protest from ever availing of an execution pending appeal; it gives too much emphasis to the COMELECs authority to decide the election contest and the losing partys right to appeal. What is there to execute pending appeal if, as the COMELEC suggested, a party should await a COMELEC final ruling on the protest case? Effectively, the two presumptive winners and the balancing act views negate the execution pending appeal that we have categorically and unequivocally recognized in our rulings and in the Rules we issued. To be sure, the COMELEC cannot, on its own, render ineffective a rule of procedure we established by formulating its own ruling requiring a final determination at its level before an RTC decision in a protest case can be implemented.

We additionally note that disruption of public service necessarily results from any order allowing execution pending appeal and is a concern that this Court was aware of when it expressly provided the remedy under the Rules. Such disruption is therefore an element that has been weighed and factored in and cannot be per se a basis to deny execution pending appeal.

What comes out clearly from this examination of the COMELEC ruling is that it looked at the wrong material considerations when it nullified the RTCs Special Order. They are the wrong considerations because they are not the standards outlined under Section 11, Rule 14 of the Rules against which the validity of a Special Order must be tested. Significantly, the use of wrong considerations in arriving at a decision constitutes grave abuse of discretion.[8]

The proper consideration that the COMELEC made relates to the correctness of the RTCs Decision in light of the Rules requirement that the victory of the protestant and the defeat of the protestee be clearly established for execution pending appeal to issue. According to the COMELEC, no less than the Second Division cast a doubt on the correctness of the number of votes obtained by the parties after the revision of ballots when the Second Division proposed a mathematical formula to correct the RTC count. At the same time, the COMELEC noted that the Second Division could not have corrected the RTC count, as the petition before it was one for certiorari while the correction of errors in computation properly pertained to the resolution of Cunanans pending appeal. To the COMELEC, all these showed that the correctness of the RTC Decision in favor of Pecson was far from clear and cannot support an execution pending appeal.

We disagree once more with the COMELEC en banc in this conclusion, as it failed to accurately and completely appreciate the Second Divisions findings. The RTC Decision, on its face, shows that Pecson garnered more valid votes than Cunanan after the revision of ballots. The Second Division properly recognized, however, that the RTC computation suffered from a facial defect that did not affect the final results; as Cunanan pointed out, the votes for Pecson and Cunanan, if totally summed up, exceeded the total number of valid votes for mayor.

Duly alerted, the Second Division looked into the purported error, analyzed it, and found the error to be merely mathematical; the RTC formula would necessarily exceed the total number of votes cast for mayor because it counted some votes twice. In making this finding, the Second Division was guided by the rule that one of the requisites for an execution pending appeal is a clear showing in the decision of the protestants victory and the

protestees defeat. Its examination of the RTC Decision was only for this limited purpose and this was what it did, no more no less. Specifically, it did not review the RTCs appreciation of the ballots on revision; it did not review the intrinsic merits of the RTC Decision issues that properly belong to the appeal that is currently pending. It merely found that the defect Cunanan noted was actually inconsequential with respect to the results, thus showing Pecsons clear victory under the RTC Decision. In other words, the Second Divisions corrected view of the RTC count confirmed, rather than contradicted or placed in doubt, the conclusion that Pecson won.

Other than the clarity of Pecsons victory under the RTC Decision, the Special Order cited good and special reasons that justified an execution pending appeal, specifically: (1) the need to give as much recognition to the worth of a trial judges decision as that which is initially given by the law to the proclamation by the board of canvassers; (2) public interest and/or respect for and giving meaning to the will of the electorate; and (3) public policy something had to be done to deal a death blow to the pernicious grab-the-proclamation-prolong-the-protest technique often, if not invariably, resorted to by unscrupulous politicians who would render nugatory the peoples verdict against them.

Unfortunately, the COMELEC en banc simply glossed over the RTCs cited reasons and did not fully discuss why these reasons were not sufficient to justify execution pending appeal. A combination, however, of the reasons the RTC cited, to our mind, justifies execution of the RTC Decision pending appeal.

A striking feature of the present case is the time element involved. We have time and again noted the well known delay in the adjudication of election contests that, more often than not, gives the protestant an empty or hollow victory in a long drawn-out legal battle.[9] Some petitions before us involving election contests have been in fact dismissed for being moot, the term for the contested position having long expired before the final ruling on the merits came.[10] In the present case, the term for mayor consists of only three (3) years. One year and six months has lapsed since the May 2007 election; thus, less than two years are left of the elected mayors term. The election protest, while already decided at the RTC level, is still at the execution-pending-appeal stage and is still far from the finality of any decision on the merits, given the available appellate remedies and the recourses available through special civil actions. To be sure, there is nothing

definite in the horizon on who will finally be declared the lawfully elected mayor.

Also, we reiterate here our consistent ruling that decisions of the courts in election protest cases, resulting as they do from a judicial evaluation of the ballots and after full-blown adversarial proceedings, should at least be given similar worth and recognition as decisions of the board of canvassers.[11] This is especially true when attended by other equally weighty circumstances of the case, such as the shortness of the term of the contested elective office, of the case.

In light of all these considerations, we conclude that the COMELEC erred in nullifying the RTCs Special Order in a manner sufficiently gross to affect its exercise of jurisdiction. Specifically, it committed grave abuse of discretion when it looked at wrong considerations and when it acted outside of the contemplation of the law in nullifying the Special Order.

WHEREFORE, premises considered, we GRANT the petition and accordingly ANNUL the assailed COMELEC Resolution.

SO ORDERED.