Republic of the
SUPREME COURT
EN BANC
ABDUSAKUR M. TAN and G.R. Nos. 166143-47
BASARON BURAHAN,
Petitioners, Present:
PANGANIBAN,
CJ,
- v e r s u s - PUNO,
QUISUMBING,
YNARES-SANTIAGO,
COMMISSION ON ELECTIONS, SANDOVAL-GUTIERREZ,
THE PROVINCIAL BOARD OF CARPIO,
CANVASSERS OF SULU, THE AUSTRIA-MARTINEZ,
MUNICIPAL BOARDS OF
CANVASSERS OF MAIMBUNG, CARPIO MORALES,
LUUK, TONGKIL, PANAMAO, CALLEJO,
SR.,
ALL
BENJAMIN LOONG and NUR-ANA TINGA,
SAHIDULLA, CHICO-NAZARIO,
Respondents. GARCIA, and
x-------------------------------------------------x VELASCO, JR., JJ.
BENJAMIN
T. LOONG, G.R.
No. 166891
Petitioner,
- v e
r s u s -
COMMISSION ON ELECTIONS Promulgated:
(First Division) and YUSOP H. JIKIRI,
Respondents.
x-----------------------------------------------------------------------------------------x
D E C I S I O N
VELASCO, JR., J.:
We
have found it
necessary to regulate liberty;
so we find it necessary to regulate competition.[1]
—former U.S. Supreme Court Justice Louis Dembitz Brandeis
Election
cases, indeed, “involve not only the adjudication of the private interests of
rival candidates, but also the paramount need of dispelling the uncertainty
which beclouds the real choice of the electorate x x x.”[2] The public nature of election cases is
ensconced in the people’s suffrage—which encompasses public choices and
interests. In their capacity as having
sovereign authority, the Filipino people are accorded the constitutional right
of suffrage to select the representatives to public office. To ensure that Filipinos fully and freely
enjoy this right and that their choices are recognized, the right of suffrage
must be safeguarded. Courts should thus
be vigilant in protecting this constitutional right so that the people’s voice
would not be stifled.
The
Case
Before us are
two petitions under Rule 65 of the Rules of Court. The first is the Petition for Certiorari and Prohibition with
Prayer for the Issuance of a Writ of Preliminary Injunction and/or a Temporary
Restraining Order[3]
under G.R. Nos. 166143-47 which seeks to set aside the October 18, 2004 Joint
Resolution[4]
of the COMELEC en banc which rejected
the prayer for declaration of failure of elections by petitioners Tan and
Burahan in SPA Nos. 04-336, 04-337, 04-339, and 04-340, and by Yusop Jikiri in
SPA No. 04-334 which is not under consideration in this petition. The other is a Petition for Certiorari with
Prayer for a Temporary Restraining Order and/or Writ of Preliminary Injunction[5]
under G.R. No. 166891 which seeks to annul and set aside the
Through the Supreme Court en banc
The
Facts
Petitioners
Abdusakur M. Tan and Basaron Burahan were the gubernatorial and vice-gubernatorial
candidates, respectively, of
Petitioners Tan and Burahan alleged systematic fraud, terrorism, illegal schemes, and machinations allegedly perpetrated by private respondents and their supporters resulting in massive disenfranchisement of voters. Petitioners submitted various affidavits and photographs to substantiate their allegations:[13]
In SPA No. 04-336 (Maimbung, Sulu), petitioners submitted the affidavits of poll watchers Ramil P. Singson, Otal Ibba, Sahak P. Ibrahim, Randy J. Jurri, Hayudini S. Jamuri, and municipal councilor candidate Jumdani Jumlail.[14]
In SPA No. 04-337 (Luuk, Sulu), petitioners submitted the affidavits of poll watchers Nijam Daud, Arsidan Abdurahman, Bensali Kamlian, Gamar Basala, Najir Ahamad, Apal A. Emamil, Say Abdurasi, Faizal Husbani, Sikal Lastam, Muktar Ailadja, Rujer Abdulkadil, Jurmin Suraid, Bakkar Jamil, Musid Madong, Nasib Nurin, Jul-Islam Benhar, Basiri Hamsah, and registered voters Sahaya Muksan, Juratol Asibon, Nuluddin Malihul, Tantung Tarani, Jul Ambri Abbil, and Harahun Arola.[15]
In SPA No. 04-339 (Tongkil, Sulu), petitioners submitted the affidavits of poll watchers Talib Usama, Lingbird Sabtal, Yusop Mirih, Kasim Akol, Ammad Madon, Dayting Imamil, Nonoy T. Kiddang, Nilson Bakil, Boy Sabtal, Reagan Bensali, Alguiser Abdulla, Gaming Talib, Munir Ukkang, Abdurahim Sairil, Alcafon Talib, Rosefier Talib, Julbasil Sabtal, Darwin Lalik, Merinisa T. Abdurasid, Lim Tingkahan, and Mujina G. Talib,[16] over-all coordinators of Tongkil mayoralty candidate Olum Sirail.
Affiant poll
watcher Merinisa T. Abdurasid attested to taking seven (7) photographs[17]
allegedly showing electoral irregularities.
In SPA No. 04-340 (Panamao, Sulu), petitioners submitted the affidavits of poll watchers Amina D. Undug, Dinwaza Undug, Sitti Aiza Undug, Amina Undug, Indah Taas Undug, Fadzrama Aukasa, Moreno Adjani, Nurhaida S. Undug, Nurjaina S. Abubakar, and Altimir A. Julhani.[18]
Affiant poll watcher Altimir A. Julhani attested to taking five (5) photographs[19] allegedly showing electoral irregularities.
Petitioners submitted additional affidavits and photographs, particularly the affidavits of Maimbung, Sulu poll watchers Aminkadra Abubakar, Abdulla Abubakar, Mhar Sappari, Nasirin Al-Najib, Marvin Saraji, Naufal Abubakar, Rhino Gumbahali, Basik Abton, Abzara H. Mudahi, Ayatulla Jakaria, Uttal Iba, Sin-sin Buklasan, Mardison I. Bakili, Abdurasmin Abdurahman, Binnar Pitong, Mahrif Sumlahani, Albinar S. Asaad, including that of photojournalist Alfred Jacinto-Corral[20] who attested taking nine (9) photographs[21] showing election irregularities.
Likewise, a report was submitted by Philippine Army 1Lt. Arthur V. Gelotin, Commanding Officer of Alpha Company, 563rd Infantry (Matapat) BN 11D, Tanduh Patong, Maimbung, Sulu, which allegedly showed massive failure of voters to cast their ballots.[22]
Meanwhile, the
COMELEC Second Division, acting on the Petitions for Declaration of Failure of
Elections, issued its May 17, 2004 Order suspending the proclamation of the
winning gubernatorial candidate of Sulu,[23]
but lifted the suspension three (3) days later.
In the May 20, 2004 lifting Order, the COMELEC Second Division directed
the Sulu PBOC to complete the canvass of votes and “to bring all canvass
documents to
Even before the
filing of the four (4) aforesaid petitions, Abdusakur M. Tan had filed four (4)
other petitions, one before the Municipal Board of Canvassers of Parang, Sulu
for the exclusion of election returns from several precincts
docketed as SPA No. 04-138, and the other three before the Provincial Board of
Canvassers of Sulu to exclude certificates of canvass
from Luuk, Panamao, and Parang docketed as SPA Nos. 04-163, 04-164 and 04-165,
respectively. All these petitions were
dismissed by the Boards concerned, prompting petitioner Tan to file an appeal
with the COMELEC First Division which issued an Order[25]
on
However, on the same day that the COMELEC First Division issued the said Order, private respondent Benjamin Loong was proclaimed the winning governor of Sulu and he assumed office. This prompted petitioner Tan to file a Petition for Annulment of the Proclamation with the COMELEC First Division, docketed as SPA No. 04-205.
On
In the meantime,
on
The COMELEC en
banc, through its
Ruling of the
Commission on Elections En Banc in
SPA Nos. 04-334,
04-336, 04-337, 04-339, and 04-340
On
The COMELEC en banc
ruled that there was no failure of election in the subject municipalities of
Sulu. It reasoned that it could only
exercise the extraordinary remedy of declaring a failure of election in the
three instances mentioned in Carlos v. Angeles,[30]
in relation to Section 6 of the Omnibus Election Code[31]
and Section 4 of RA 7166, which in gist are:
(1) the
election is not held, (2) the election is suspended, or (3) the election
results in a failure to elect.
In dismissing the petitions, the COMELEC held that none of the grounds relied upon by petitioners fall under any of the three instances justifying a declaration of failure of election. First, the COMELEC found that based upon the evidence presented by the parties, a valid election was held as scheduled. Second, there was no suspension of the election as voting continued normally. Third, private respondent Loong was elected by a plurality of votes as proclaimed by the Provincial Board of Canvassers (PBC).
While the
authenticity and integrity of the election returns from the municipalities of
Luuk and Panamao were questioned by petitioner Tan, those of Maimbung and
Tongkil were left undisturbed throughout the preparation, transmission, custody,
and canvass of the returns. Petitioners alleged that
fraud and terrorism took place in Luuk and Panamao because voters were forced
to affix their signatures and thumbprints; and the ballots in Luuk and Panamao
were filled out by respondents’ poll watchers and supporters.
Citing Grand Alliance for Democracy v. COMELEC,[32] the COMELEC en banc ruled that the grounds raised by petitioners were best ventilated in an election protest.
The COMELEC did not
give credence to petitioners’ evidence in support of their allegations of fraud
and terrorism since their evidence consisted mainly of affidavits executed by
their own poll watchers. The Commission
considered the affidavits self-serving and insufficient to annul the results of
the election. Besides, it pointed out
that petitioners presented only a single affidavit of an alleged
disenfranchised voter. Thus, on
However, the Joint
Resolution was not concurred in by COMELEC Commissioner Mehol K. Sadain who
signed it with a note: “DISSENTING. DISSENTING OPINION TO FOLLOW.” Subsequently, Commissioner Sadain submitted
his Dissenting Opinion[33]
on
This basis of
Commissioner Sadain’s Dissenting Opinion, however, was not raised by the
petitioners in their
The Sadain Dissenting
Opinion was released on
Denial by the COMELEC
First Division of
Petitioner
Loong’s motion to dismiss in EPC No. 2004-66
After the
dismissal of the petitions to declare failure of elections on
On December 14, 2004, the COMELEC First Division issued the first assailed Order[38] denying petitioner Loong’s motion to dismiss, ruling that the protest was not filed out of time as there were still pending pre-proclamation cases before it, the result of which could affect Loong’s motion. It further held that it did not matter that these pre-proclamation cases were not filed by respondent Jikiri but by another candidate, Abdusakur M. Tan, as Section 248 of the Omnibus Election Code does not require that the petition to annul or suspend the proclamation be filed by the protestant. Thus, the COMELEC First Division concluded that these pending pre-proclamation cases would not prevent respondent Jikiri from converting his protest ad cautelam into a regular one, and which fact would not preclude the Commission from deciding the election protest case. After all, the COMELEC First Division noted that pre-proclamation controversies and election protest cases have different causes of action, and thus, could proceed independently. Finally, the COMELEC First Division directed the concerned parties to take the appropriate steps to address the financial and personnel requirements for the protest and counter-protest proceedings.
Subsequently,
petitioner Loong’s Motion for Reconsideration[39]
was denied through the second assailed
Meanwhile, on
The
Issues
In G.R. Nos. 166143-47, petitioners Tan and Burahan raise the following issues for our consideration:
Whether [or not] the respondent COMELEC
committed grave abuse of discretion amounting to lack or excess of
jurisdiction, in dismissing the consolidated petitions despite the evident
massive disenfranchisement of the voters.
Whether [or
not] the proclamation of the respondents, albeit patently null and void,
bars the filing of the instant petitions for declaration of failure of
elections.[42]
In G.R. No. 166891, petitioner Loong simultaneously raises the following issues before us:
Whether
[or not] the COMELEC has jurisdiction to entertain electoral protests filed
beyond ten (10) days after the proclamation of the results of an election for a
given provincial office.
Whether
[or not] the COMELEC has jurisdiction to entertain simultaneously
pre-proclamation controversies and electoral protests.
The
Court’s Ruling
The petitions are bereft of merit.
G.R. Nos. 166143-47
Preliminary
Issue: Timeliness of the Petition
Petitioners Tan
and Burahan maintain that the 30-day reglementary period to file the petition
for certiorari only started to
run on November 24, 2004, the day they received a copy of the November 23, 2004
Dissenting Opinion, which completed the Joint Resolution. Moreover, they contend that the assailed
October 18, 2004 Joint Resolution received by petitioners on
On the other hand, both the Office of the Solicitor General (OSG) and private respondent Loong strongly assert that the instant petition was filed out of time as the start of the reglementary period to file the appeal must be counted from the receipt of the October 18, 2004 Joint Resolution—since it is the judgment and not the Sadain Dissenting Opinion being assailed. They also point out that the withheld Dissenting Opinion is only Commissioner Sadain’s view and, thus, neither is it essential to nor does it affect the ruling of the COMELEC en banc.
Constitution and Rules silent on when a Decision is Complete
To resolve the preliminary procedural matter on whether the appeal was filed on time, the Court must first determine whether a separate dissenting opinion in an election case before the COMELEC is a part or component of a resolution or decision.
Section 13, Article VIII of the 1987 Constitution provides:
The conclusions of the Supreme Court in
any case submitted to it for decision en
banc or in division shall be reached in consultation before the case is
assigned to a Member for the writing of the opinion of the Court. A certification to this effect signed by the
Chief Justice shall be issued and a copy thereof attached to the record of the
case and served upon the parties. Any
Member who took no part, or dissented, or
abstained from a decision or resolution, must state the reason
therefor. The same requirement shall be
observed by all lower collegiate courts.
(Emphasis supplied)
This constitutional directive was adopted in Section 1, Rule 18 on Decisions of the COMELEC Rules of Procedure which states:
Section
1. Procedure in
Making Decisions.—The conclusions of the Commission in any case
submitted to it for decision en banc
or in Division shall be reached in consultation before the case is assigned by
raffle to a Member for the writing of the opinion of the Commission or the
Division and a certification to this effect signed by the Chairman or the
Presiding Commissioner, as the case may be, shall be incorporated in the
decision. Any Member who took no part,
or dissented, or abstained from a decision or resolution must state the reason
therefor.
Every decision shall express therein
clearly and distinctly the facts and the law on which it is based.
The above-quoted Sections from the Constitution and the COMELEC Rules of Procedure are silent as to what constitutes a decision—whether it is solely the majority opinion or whether the separate concurring or dissenting opinions are considered integral parts of it.
Decision complete with the
required majority opinion
The Court rules that a resolution or decision of the COMELEC is considered complete and validly rendered or issued when there is concurrence by the required majority of the Commissioners. Section 7 of Article IX-A, 1987 Constitution pertinently provides that:
SEC. 7. Each
Commission shall decide by a majority vote of all its Members any case
or matter brought before it within sixty days from the date of its submission
for decision or resolution. A case or
matter is deemed submitted for decision or resolution upon the filing of the
last pleading, brief, or memorandum required by the rules of the Commission or
by the Commission itself. Unless
otherwise provided by this Constitution or by law, any decision, order, or
ruling of each Commission may be brought to the Supreme Court on certiorari by
the aggrieved party within thirty days from receipt of a copy thereof.
There is nothing from the above constitutional proviso nor in the COMELEC Rules of Procedure that requires the submission of a dissenting opinion before a decision or resolution concurred by the required majority is validly rendered, i.e. complete. Put otherwise, with the required majority vote, the majority opinion embodied in a decision or resolution duly promulgated is validly rendered and issued despite dissent or inhibition of the minority, and even if the reason for the dissent or inhibition is submitted much later than its promulgation.
Moreover, the dissenting opinion, which is only Commissioner Sadain’s view, is not essential to nor does it affect the ruling of the COMELEC en banc. Separate opinions not approved by the required majority of the court members, whether they be concurring or dissenting opinions, must be distinguished from the opinion of the court.[43] Verily, the joint resolution is the ruling being assailed and not the dissenting opinion. It is clear that, not being essential to the assailed joint resolution, the dissenting opinion merely serves to comply with the constitutional proviso that any member who dissented from a decision or resolution must state the reason therefor.[44]
In sum, the 30-day reglementary period must be reckoned from the receipt of the decision, order or resolution and not from the receipt of a dissenting opinion issued later. In the instant case, the dissenting opinion was submitted and promulgated 36 days after the assailed joint resolution.
Sections 3 and 4, Rule 18 of COMELEC Rules
of Procedure:
Unconstitutional
Under the COMELEC Rules of Procedure there is an instance when the 30-day reglementary period to appeal is reckoned other than the date of receipt of the resolution or decision. This is when an extended opinion is reserved. The 30-day reglementary period starts to run only upon the receipt by the parties of the reserved extended opinion released within 15 days from the promulgation of the resolution or decision. Sections 3 and 4 of Rule 18, COMELEC Rules of Procedure provides thus—
Section 3. When Extended Opinion Reserved.—When in a given resolution or decision the writing of
an extended opinion is reserved, the extended opinion shall be released within
fifteen (15) days after the promulgation of the resolution.
Section 4. Period to Appeal or File Motion for Reconsideration When Extended Opinion
is Reserved.—If an extended opinion
is reserved in a decision or resolution, the period to file a petition for certiorari with the Supreme Court or to
file a motion for reconsideration shall begin to run only from the date the aggrieved party received a copy of the extended
opinion. (Emphasis supplied.)
From the
above-quoted rules, it may be considered that the dissenting opinion duly noted
“to follow” in the joint resolution is an extended reserved opinion. But such won’t serve to help petitioners’
position. While we are sympathetic to
the predicament of petitioners, we however declare that Sections 3 and 4 of
Rule 18, COMELEC Rules of Procedure are unconstitutional and must perforce be
struck down. The 1987 Constitution, under Article IX-A, Section 6[45]
and Article IX-C, Section 3,[46]
grants and authorizes the COMELEC to promulgate its own rules of
procedures as long as such rules concerning pleadings and practice do not diminish,
increase or modify substantive rights;
on the other hand, this Court has a rule-making power provided in
Article VIII, Section 5, paragraph (5)[47]—the
constitutional prerogative and authority to strike down and disapprove rules
of procedure of special courts and quasi-judicial bodies.
Thus, we exercise this power and authority in voiding Sections 3 and 4 of Rule 18, COMELEC Rules of Procedure for contravening Article IX, Section 7 of the 1987 Constitution which pertinently provides:
Sec. 7. x x x Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each
Commission may be brought to the Supreme Court on certiorari by the
aggrieved party within thirty [30] days from receipt of a copy thereof
(emphasis supplied).
The above quoted constitutional proviso clearly posits the unequivocal scenario that a decision, order, or ruling is issued complete with separate opinions duly incorporated upon its promulgation. It does not envision what Sections 3 and 4 of Rule 18 provide—an unwarranted extension of the period to file an appeal on certiorari.
Besides, striking down Sections 3 and 4 of Rule 18 will obviate future confusion as to when the 30-day reglementary period is reckoned and forestall unnecessary delays in the processing and adjudication of election cases and proceedings. It will reinforce the correct judicial practice—which public respondent COMELEC practices—of promulgating all separate opinions together with the majority opinion. Thus, in line with this ruling, we leave it to respondent COMELEC to promulgate a more orderly rule pursuant to its rule making power under the Constitution to ensure that the majority and separate opinions are collated and appended together to constitute a complete decision, order, or ruling before it is promulgated by the clerk of court and to devise a procedure that makes certain of the prompt submission of the reserved extended or separate opinion within a fixed period.
Petition filed out of time
Foregoing
considered, the instant petition was clearly filed out of time. Having received the joint resolution on
Separate opinions submitted
before promulgation
Nonetheless, it has to be made clear that
decisions, resolutions or orders of collegiate courts must have separate
concurring or dissenting opinions appended to the majority opinion before these
are promulgated. And it is the
responsibility of the clerk of court to ensure that these separate opinions are
submitted within the required period so that the decision, resolution or order
is timely promulgated.
There are two (2) salient reasons why this
principle must be followed, to wit:
First, both parties
deserve to know all the views of the collegiate court who voted for the
majority and minority opinions and the reasons why they voted in such manner,
especially the losing party deciding to appeal to a higher court.
Second, if the separate opinions are not appended to the main opinion, the parties will have difficulty understanding the dissertation in the ponencia of the majority that addressed the points raised and reasons presented in the separate opinions, more particularly in the dissenting opinion.
Even if we concede that Tan and Burahan’s petition was filed on time, we find that the petition failed to establish that the COMELEC en banc committed grave abuse of discretion.
First Issue: No
Disenfranchisement of Voters
Ground not raised below cannot
be raised on appeal
The records of the case from the COMELEC show that petitioners did not raise the alleged abrupt change of polling place as an issue.
Petitioners now modify their theory on appeal. Quoting extensively Commissioner Sadain’s Dissenting Opinion which applied Hassan[48] and Basher,[49] petitioners now allege that the sudden change in the polling places deprived the candidates and voters of sufficient notice which afforded private respondents undue advantage and enabled them to engage the alleged election irregularities to ensure their victory.
The aforementioned issue
is now raised only for the first time on appeal before this Court.
Settled is the rule that issues not raised in the proceedings below (COMELEC en banc) cannot be raised for the
first time on appeal. Fairness and due process dictate that
evidence and issues not presented below cannot be taken up for the first time
on appeal.[50]
Thus, in Matugas v. Commission on Elections,[51] we reiterated this rule, saying:
The rule in appellate
procedure is that a factual question may not be raised for the first time on
appeal,[52] and documents forming no part of the proofs before
the appellate court will not be considered in disposing of the issues of an
action.[53] This is true whether the decision elevated
for review originated from a regular court[54]
or an administrative agency or quasi-judicial body,[55]
and whether it was rendered in a civil case,[56] a
special proceeding,[57]
or a criminal case.[58] Piecemeal
presentation of evidence is simply not in accord with orderly justice.
Moreover, in Vda. De Gualberto v. Go,[59] we also held:
In Labor Congress of the Philippines v.
NLRC,[60] we have made it clear that “to allow fresh issues on appeal
is violative of the rudiments of fair play, justice and due process.”[61] Likewise,
in Orosa v. Court of Appeals,[62]
the Court disallowed it because “it would be offensive to the basic rule of fair
play, justice and due process if it considered [the] issue[s] raised for the
first time on appeal.” We cannot take an opposite stance in the present
case.
Information on clustering of polling places duly
disseminated to the electorate
Even granting arguendo that the issue of the alleged change and transfer of polling places was raised before the COMELEC, it would still not justify a declaration of failure of election in the subject municipalities.
The records sufficiently shed light on this issue and dispel any doubt as to the failure of election as alleged. It is apparent that the May 9, 2004 approval of the change and transfer of polling places—which was duly disseminated to the parties, candidates, and voters—was a mere formality to confirm what was already set way before the May 10, 2004 elections.
The April 13,
2004 COMELEC Resolution No. 6695[63]
granted authority to the Commissioners-in-Charge of regions to decide on all
administrative matters not covered by specific resolutions or policies. The clustering of precincts in
Pursuant to COMELEC
Resolution No. 6695 of
No
failure of election
Petitioners argue that there was failure of elections in the four (4) subject municipalities as there was really no election held because all the ballots in these municipalities were filled out by private respondents’ relatives and supporters. They assert that there was merely a sham election followed by a similar sham canvassing, and the voters were consequently disenfranchised. They strongly maintain that this instant case falls within the first instance under Section 6 of the Omnibus Election Code[67] where a failure of election may be declared by COMELEC.
We are not persuaded.
The
COMELEC correctly dismissed the Petitions
for Declaration of Failure of Election since the electoral
anomalies alleged in the petitions should have been raised in an election protest,
not in a petition to declare a failure of election.
Under
Republic Act No. 7166, otherwise known as “The Synchronized Elections Law of
1991,”[68]
the COMELEC en banc is empowered to declare a failure of election under
Section 6 of the Omnibus Election Code.
Section 6 of the Code prescribes the conditions for the exercise of this
power, thus:
Section
6.
Failure of Election.—If, on account of force majeure,
violence, terrorism, fraud or other analogous causes[,] the election in any
polling place has not been held on the date fixed, or had been suspended before
the hour fixed by law for closing of the
voting, or after the voting and during the preparation and the transmission of
the election returns or in the custody or canvass thereof, such election
results in a failure to elect, and in any of such cases the failure or
suspension of election would affect the result of the election, the Commission
shall, on the basis of a verified petition
by any interested party and after due notice and hearing, call for the
holding or continuation of the election not held, suspended or which resulted
in a failure to elect on a date reasonably close to the date of the election
not held, suspended or which resulted in a failure to elect but not later than
thirty days after the cessation of the cause of such postponement or suspension
of the election or failure to elect.
From the
above-cited proviso, three (3) instances justify the declaration of failure of
election, to wit:
(a) the election in any polling place
has not been held on the date fixed on account of force majeure,
violence, terrorism, fraud, or other analogous causes;
(b) the election in any polling place
had been suspended before the hour fixed by law for the closing of the
voting on account of force majeure, violence, terrorism, fraud, or other
analogous causes; or
(c) after the voting and during the
preparation and transmission of the election returns or in the custody or
canvass thereof, such election results in a failure to elect on account
of force majeure, violence, terrorism, fraud, or other analogous causes.[69]
In these three
(3) instances, there must be a resulting failure to elect. As stated in Banaga, Jr. v. Commission on Elections, “this is obvious in the first two scenarios, where the
election was not held and where the election was suspended.”[70] As to the third scenario, where the
preparation and the transmission of the election returns give rise to the
consequence of failure to elect must, as mentioned earlier, be interpreted to
mean that nobody emerged as a winner.[71]
In Banaga, we held
that:
Before the
COMELEC can act on a verified petition seeking to declare a failure of election
two conditions must concur, namely (1) no voting took place in the precinct or
precincts on the date fixed by law, or even if there was voting, the election
resulted in a failure to elect; and (2) the votes not cast would have affected
the result of the election.[72] Note that the cause of such failure of
election could only be any of the following:
force majeure, violence, terrorism, fraud or other analogous
causes.[73]
A scrutiny of
the petitions filed before the COMELEC shows that petitioners never alleged
that no voting was held nor was voting suspended in the subject
municipalities. Neither did petitioners
allege that no one was elected. Petitioners only allege that there was a
sham election and similar sham canvassing.
As noted earlier,
to warrant a declaration of failure of election, the alleged irregularities must
be proven to have prevented or suspended the holding of an election, or marred
fatally the preparation and transmission, custody, and canvass of the election
returns. These essential facts should have
been clearly alleged by petitioners before the COMELEC en banc, but they
were not.
No evidence of massive
disenfranchisement
Petitioners want us to examine the evidence and the findings of facts by the COMELEC en banc asserting that there was evident massive disenfranchisement of voters. While this Court is not a trier of facts, and under the Constitution, this Court resolves “cases in which only an error or question of law is involved.”[74] Nevertheless, after a thorough examination of the documentary evidence presented by petitioners in the proceedings below, we find no cogent reason to alter the findings and conclusions of respondent COMELEC en banc.
Factual findings
of the COMELEC which has the expertise in the enforcement and administration of
all election laws and regulations are binding on the Court[75]
and must be respected. Besides, based on
the COMELEC en banc’s scrutiny of the
facts, the allegations do not constitute sufficient grounds to nullify the
election. We agree with the finding of
the COMELEC en banc that the evidence relied upon by
petitioners to support their charges of fraud and irregularities in the conduct
of elections in the questioned municipalities consisted of affidavits prepared
and executed by their own representatives; and that the other pieces of evidence
submitted by petitioners were not credible and inadequate to substantiate
petitioners’ charges of fraud and irregularities in the conduct of elections.[76] Mere affidavits are insufficient,[77]
more so, when they were executed by petitioners’ poll watchers. The conclusion of respondent COMELEC is
correct that although petitioners specifically alleged violence, terrorism,
fraud, and other irregularities in the conduct of elections, they failed to
substantiate or prove said allegations.
Had there been massive disenfranchisement, petitioners should have
presented the affidavits of these disenfranchised voters, instead of only a
single affidavit of one allegedly disenfranchised voter.[78]