[G.R. No. L-25467. April 27, 1967.

LUCAS V. CAUTON, Petitioner, v. COMMISSION ON ELECTIONS and PABLO

SANIDAD, Respondents.

Antonio Barredo for Petitioner.

Ramon Barrios for respondent Commission on Elections.

Pablo C. Sanidad and F. D. Villanueva and Associates for respondent Sanidad.

SYLLABUS

1. ELECTIONS; COMMISSION ON ELECTIONS; CONSTITUTIONAL POWER THEREOF. — The Commission has

the power to decide all administrative questions affecting Elections, except the question involving the right
to vote (Article x, Section 2, Constitution of the Philippines).

2. ID.; ID.; CANVASS OF ELECTION RETURNS; POWER OF THE COMMISSION IN RELATION THERETO. —
The Commission on Elections has the power to investigate and act on the propriety or legality of the canvass
of election returns made by the board of canvassers. The power of the Commission in this respect is simply
administrative and supervisory — intended to secure the proclamation of the winning candidate based on
the true count of the votes cast.

3. ID.; ID.; ID.; ID,; TAMPERED ELECTION RETURNS; DUTY OF THE COMMISSION. — Once the Commission
on Elections is convinced that the election returns in the hands of the board of canvassers do not constitute
the proper basis in ascertaining the true result of the elections, it should be its duty to order the taking of
such steps as may be necessary in order that the proper basis for the canvass is obtained or made available.

4. ID.; ID.; ID.; ID.; ID.; ID.; CASE AT BAR. — The three copies of the election returns outside the ballot
box do not constitute a reliable basis for canvass, then the Commission on Elections, in the exercise of its
power to administer and enforce the laws relative to the conduct of elections, may order the opening of the
ballot boxes to ascertain whether the copy inside each ballot box is also tampered like the three copies
outside the ballot box, corresponding to each precinct. The Commission on Elections may do this on its own
initiative, or upon petition by the proper party.

5. ID.; ID.; ID.; ID.; ID.; ID.; ID.; PURPOSE AND EFFECT OPENING BALLOT BOXES UNDER THE
CIRCUMSTANCES. — Once it is found that the copy of the election return inside the ballot box is
untampered, the Commission on Elections would then have accomplished two things, namely: (1) secured a
basis for the prosecution for the violation of the laws relative to elections, and (2) afforded the party
aggrieved by the alteration of the election returns outside the ballot box a basis for a judicial recount of the
votes as provided for in Section 163 of the Revised Election Code.

6. ID.; ID.; PURITY OF THE ELECTION; CHOICE OF MEANS TO INSURE SUCH DISCRETIONARY ON
COMMISSION. — Commission on Elections, by constitutional mandate, must do everything in its power to
secure a fair and honest canvass of the votes cast in the elections, In the performance of its duties, the
Commission must be given a considerable latitude in adopting means and methods that will insure the
accomplishment of the great objective for which it was created - to promote free, orderly and honest
elections. The choice of means taken by the Commission, unless they are clearly illegal or constitute grave
abuse of discretion, should not be interfered with.

7. ID.; ID.; OPENING OF THE BALLOT BOX; WHEN ALLOWABLE. — Under Section 157 of the Revised
Election Code, the ballot boxes may be opened in case there is an election contest. They may also be
opened even if there is no election contest when their contents have to be used as evidence in the
prosecution of election frauds. Moreover, they may be opened when they are the subject of any official
investigation which may be ordered by a competent court or other competent authority. The competent
authority must include the Commission on Elections which is charged with the administration and
enforcement of the laws relative to the conduct of elections.
 DECISION

ZALDIVAR, J.:

In the national elections held on November 9, 1965, petitioner Lucas V. Cauton and respondent Pablo
Sanidad, along with Godofredo S. Reyes, were candidates for the Office of Representative in the second
congressional district of Ilocos Sur.

During the canvass by the Provincial Board of Canvassers of Ilocos Sur of the votes cast for the candidates
for Representative in the second congressional district of Ilocos Sur, and particularly after the Board had
opened the envelopes containing the copies of the election returns from each of the election precincts in the
municipalities of Candon, Santiago and Sta. Cruz that were presented by the Provincial Treasurer of Ilocos
Sur to the Board, respondent Sanidad brought to the attention of the Board the fact that the entries of votes
for the candidates for Representative in those copies of the election returns that came from the envelopes
presented by the provincial treasurer differed from the entries appearing in the copies of the returns from
the same election precincts that were in the possession of the Liberal Party.

Respondent Sanidad filed a petition with the Commission on Elections praying for the opening of the ballot
boxes in all the precincts of Candon, Santiago and Sta. Cruz, in order to retrieve the election returns
deposited therein so that those election returns might be used in the canvass of the votes cast for the
candidates for Representative in the second district of Ilocos Sur, and that in the meantime the Provincial
Board of Canvassers of Ilocos Sur be ordered to refrain from proclaiming the winning candidates for the
office of Representative in said district. The Commission on Elections issued the restraining order prayed for
by respondent Sanidad and set his petition for hearing.

After hearing, the Commission on Elections found "that it had been clearly established that the copies of the
election returns for the Municipal Treasurer, for the Commission on Elections and for the Provincial Treasurer
for the municipality of Santa Cruz have uniform alterations in the entries of the votes cast for representative
showing different number of votes compared with the Liberal Party copies, while the copies of the election
returns for the Commission on Elections and the Provincial Treasurer for the municipalities of Candon and
Santiago have likewise uniform alterations and showing different numbers compared with the Liberal Party
copies . . ." 1 The copies of the election returns that were furnished the municipal treasurers of Candon and
Santiago were never verified because the municipal treasurers of those two municipalities did not comply
with the subpoena duces tecum issued by the Commission on Elections directing them to bring to the
Commission the copies of the election returns of the precincts in their respective municipalities that were in
their possession.

On December 22, 1965, respondent Commission on Elections issued an order providing, among others, that

". . . to enable the aggrieved party to establish discrepancy between copies of the election returns provided
by law in the aforementioned precincts for the purpose of obtaining judicial remedy under the provisions of
Section 163 of the Revised Election Code, the Commission Resolved . . . to direct immediately the opening
of the ballot boxes of the municipalities of Candon, Sta. Cruz and Santiago which are now impounded and
under the custody of the Zone Commander of the 1st PC Zone in Camp Olivas, San Fernando, Pampanga
solely for the purpose of retrieving therefrom the corresponding election returns, copies for the ballot box, in
all the precincts of said municipalities."
cralaw virtua1aw library

Pursuant to the instructions of respondent Commission, contained in the resolution of December 22, 1965,
the ballot boxes from all the precincts in the municipalities of Candon, Sta. Cruz and Santiago were opened
by the Chief of the Law Enforcement Division of the Commission, Atty. Fernando Gorospe Jr., in the
presence of witnesses, and the envelopes containing the election returns found inside the ballot boxes were
taken and brought to Manila on December 23, 1965.

On the same date, December 23, 1965, herein petitioner, Lucas V. Cauton, filed before this Court a petition
for certiorari and prohibition with preliminary injunction, praying that the resolution of the respondent
Commission on Elections dated December 22, 1965 ordering the opening of the ballot boxes used in all the
precincts of Candon, Sta. Cruz and Santiago in the elections of November 9, 1965 be annulled and set aside.
The petition further prays that the Commission on Elections be restrained from opening the envelopes
containing the election returns found in the afore-mentioned ballot boxes and be ordered to return the said
envelopes to the corresponding ballot boxes. In his petition, petitioner alleges that the respondent
Commission on Elections acted without or in excess of its jurisdiction in issuing the resolution of December
22, 1965. This Court gave due course to the petition, but did not issue the writ of preliminary injunction
prayed for. This petition is now the case before Us.

Upon instructions by respondent Commission on Elections, on December 28, 1965, the envelopes that were
taken from the ballot boxes were opened and the election returns were taken out and their contents
examined and recorded by a committee appointed by the Commission. This was done in a formal hearing
with notice to the parties concerned.

Respondent Pablo C. Sanidad filed his answer to the instant petition on January 5, 1966, admitting some of
the allegations and denying others, and maintaining that the Commission on Elections had acted well within
the bounds of its authority in issuing the order of December 22, 1965. Respondent Commission on Elections
also filed its answer on January 5, 1966, maintaining that it has authority under the law to order the
opening of the ballot boxes as stated in its resolution of December 22, 1965.

In the meantime, on the basis of the discrepancies in the entries of the votes for the candidates for
Representative, between the election returns taken out of the ballot boxes that were opened by order of the
Commission on Elections and the election returns submitted by the Provincial Treasurer of Ilocos Sur to the
Provincial Board of Canvassers of Ilocos Sur, respondent Pablo S. Sanidad filed a petition with the Court of
First Instance of Ilocos Sur, docketed as Election Case No. 16-N, for a recount of the votes in all the
precincts of Candon, Sta. Cruz and Santiago, pursuant to the provisions of Section 153 of the Revised
Election Code.

On February 14, 1966, petitioner filed before this Court an urgent motion, in this case, praying for the
issuance of an order enjoining the Court of First Instance of Ilocos Sur (Branch II-Narvacan) from further
proceeding with Election Case No. 16-N, abovementioned, pending final decision of the instant case, upon
the ground that the recount of the ballots in that case in the court below would render the instant case moot
and academic. This motion was denied by this Court in a resolution dated February 17, 1966.

The principal issue in the present case revolves on the legality of the resolution of the respondent
Commission on Elections, dated December 22, 1965, which orders the opening of the ballot boxes used in all
the precincts in the municipalities of Candon, Sta. Cruz and Santiago, Ilocos Sur, during the elections of
November 9, 1965 for the purpose of retrieving therefrom the corresponding election returns, copies for the
ballot box, "to enable the aggrieved party to establish discrepancy between copies of the election returns
provided by law in the aforementioned precincts for the purpose of obtaining judicial remedy under the
provisions of Section 163 of the Revised Election Code." cralaw virtua1aw library

It is the stand of the petitioner that respondent Commission on Elections is without jurisdiction to issue, or
has acted in excess of jurisdiction in issuing, the resolution in question, so that said resolution is null and
void and should not be given legal force and effect. The petitioner contends that under Section 157 of the
Revised Election Code the Commission on Elections has authority to order the opening of the ballot boxes
"only in connection with an investigation conducted for the purpose of helping in the prosecution of any
violation of the election laws or for purely administrative purposes but not when the sole purpose is, as in
this case, to assist a party in trying to win the election . . ." The petitioner further contends that "the mere
fact that the copies of the returns in the precincts in question in the possession of the Liberal Party do not
tally with the returns involving the same precincts in the possession of the Provincial Treasurer, the
Commission on Elections and the Nacionalista Party as well does not legally support the validity of the
resolution of the respondent Commission in question . . ." 2 

We cannot sustain the stand of the petitioner, We believe that in issuing the resolution in question the
Commission on Elections simply performed a function as authorized by the Constitution, that is, to "have
exclusive charge of the enforcement and administration of all laws relative to the conduct of elections and . .
. exercise all other functions which may be conferred upon it by law." The Commission has the power to
decide all administrative questions affecting elections, except the question involving the right to vote. 3 

This Court in a line of decisions has ruled that the Commission on Elections has the power to investigate and
act on the propriety or legality of the canvass of election returns made by the board of canvassers. 4 In the
case of Albano v. Arranz, L-19260, January 31, 1962, this Court, through Mr. Justice J.B.L. Reyes, held as
follows:jgc:chanrobles.com.ph

"The suspension of the proclamation of the winning candidate pending an inquiry into irregularities brought
to the attention of the Commission on Elections was well within its administrative jurisdiction, in view of the
exclusive authority conferred upon it by the Constitution (Art. X) for the administration and enforcement of
all laws relative to elections. The Commission certainly had the right to inquire whether or not discrepancies
existed between the various copies of election returns for the precincts in question, and suspend the
canvass in the meantime so the parties could ask for a recount in case of variance . . ." cralaw virtua1aw library

What the respondent Commission on Elections did in the case now before Us is just what is contemplated in
the abovequoted ruling of this court. The power of the Commission on Elections in this respect is simply
administrative and supervisory — intended to secure the proclamation of the winning candidate based on
the true count of the votes cast. When the Commission on Elections exercises this power the purpose is not
for the Commission to help a candidate win the election but to bring about the canvass of the true results of
the elections as certified by the boards of election inspectors in every precinct. The object of the canvass is
to determine the result of the elections based on the official election returns. In order that the result of the
canvass would reflect the true expression of the people’s will in the choice of their elective officials, the
canvass must be based on true, genuine, correct, nay untampered, election returns. It is in this proceeding
that the Commission on Elections exercises its supervisory and administrative power in the enforcement of
laws relative to the conduct of elections, by seeing to it that the canvass is based on the election returns as
actually certified by the members of the board of inspectors. Once the Commission on Elections is convinced
that the election returns in the hands of the board of canvassers do not constitute the proper basis in
ascertaining the true result of the elections, it should be its concern, nay its duty, to order the taking of such
steps as may be necessary in order that the proper basis for the canvass is obtained or made available.

The election law requires the board of inspectors to prepare four copies of the election return in each
precinct — one to be deposited in the ballot box, one to be delivered to the municipal treasurer, one to be
sent to the provincial treasurer, and one to be sent to the Commission on Elections. In the case of the
canvass of the election returns for candidates for provincial or national offices, the election returns received
by the provincial treasurer from the boards of inspectors are used. It is the duty of the provincial treasurer
to turn over to the provincial board of canvassers the election returns received by him from the boards of
inspectors. If the Commission on Elections is duly informed and it so finds, in appropriate proceedings, that
the election returns in the hands of the provincial treasurer are tampered, then the Commission should
afford the candidate adversely affected by the tampering an opportunity to show that there exist authentic
copies of the same election returns which are not tampered. A recourse may be had to the copies received
by the Commission on Elections and to the copies received by the municipal treasurer. If it is shown, that
the copies in the hands of the Commission on Elections and of the municipal treasurer are similarly
tampered as the copies in the hands of the provincial treasurer, then it becomes evident that all the three
copies of the election returns outside the ballot box do not constitute a reliable basis for a canvass. The only
copies left to be checked, whether they are also tampered or not, are the ones inside the ballot boxes.
Certainly, the Commission on Elections, in the exercise of its power to administer and enforce the laws
relative to the conduct of elections, may order the opening of the ballot boxes to ascertain whether the copy
inside each ballot box is also tampered like the three copies outside the ballot box, corresponding to each
precinct. The Commission on Elections may do this on its own initiative, or upon petition by the proper
party. Once it is found that the copy of the election return inside the ballot box is untampered, the
Commission on Elections would then have accomplished two things, namely: (1) secured a basis for the
prosecution for the violation of the laws relative to elections, and (2) afforded the party aggrieved by the
alteration of the election returns outside the ballot box a basis for a judicial recount of the votes as provided
for in Section 163 of the Revised Election Code. Thus, the Commission on Elections has thereby made
available the proper and reliable basis for the canvass of the votes that will lead to the proclamation by the
board of canvassers of the true winner in the elections. In so doing the Commission on Elections, as We
have said, had performed its constitutional duty of administering and enforcing the laws relative to the
conduct of elections with a view to promoting clean and honest elections — the very purpose for which the
Commission on Elections was created by constitutional mandate.

In the case now before Us, the Commission on Elections issued the questioned resolution "After hearing the
arguments of the petitioner and the opposition thereto and considering that it has been clearly established
that the copies of the election returns for the Municipal Treasurer, for the Commission on Elections and for
the Provincial Treasurer for the municipality of Sta. Cruz have uniform alteration in the entries of the votes
cast for representative showing different number of votes compared with the Liberal Party copies, while the
copies of the election returns for the Commission on Elections and the Provincial Treasurers for the
municipalities of Candon and Santiago have likewise uniform alterations and showing different numbers
compared with the Liberal Party copies . . ." 5 Indeed, in the face of this finding by the Commission on
Elections, which indicates a clear violation of the election law, and which indicates an attempt to procure the
proclamation of the winner in the elections for representative in the second congressional district of Ilocos
Sur by the use of tampered election returns, can the Commission on Elections be remiss in the performance
of its duties as a constitutional body committed with the exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections? The Revised Election Code gives to the
Commission on Elections the direct and immediate supervision over provincial, municipal and city officials
designated by law to perform duties relative to the conduct of elections — and included among these
officials are members of the provincial board of canvassers. 6 The provincial board of canvassers is enjoined
by law to canvass all the votes cast for representative on the basis of the election returns produced by the
provincial treasurer. 7 The Commission on Elections has a duty to enforce this law, and it has the duty to
see to it that the election returns to be used for canvassing must be genuine and authentic, not falsified or
tampered with. Where the election returns produced by the provincial treasurer have been shown to have
been tampered, and all the other copies outside the ballot boxes have also been shown to have been
tampered or falsified, it is certainly within the power of the Commission on Elections to issue such order as
would ascertain the existence of the genuine, authentic and untampered election returns, and thus open the
way for the summary recount of the votes, in accordance with law, for the purposes only of the canvass of
the votes and the proclamation of the candidate found to have obtained the highest number of votes. In the
case now before Us, it is found by the Commission on Elections that no other copies can be had except those
deposited in the ballot boxes. Hence, the necessity for the Commission to order the retrieving of the copies
of the election returns from the ballot boxes. An order to this effect does not affect the right to vote or the
validity of any vote cast, so that it is perfectly within the power of the Commission on Elections to issue such
an order in the exercise of its exclusive power to administer and enforce the laws relative to the conduct of
elections. It would indeed be absurd to say that the Commission on Elections has a legal duty to perform
and at the same time it is denied the necessary means to perform said duty.

The purpose of the Revised Election Code is to protect the integrity of elections and to suppress all evils that
may vitiate its purity and defeat the will of the voters. 8 The purity of the elections is one of the most
fundamental requisites of popular government. 9 The Commission on Elections, by constitutional mandate,
must do everything in its power to secure a fair and honest canvass of the votes cast in the elections. In the
performance of its duties, the Commission must be given a considerable latitude in adopting means and
methods that will insure the accomplishment of the great objective for which it was created — to promote
free, orderly and honest elections. The choice of means taken by the Commission on Elections, unless they
are clearly illegal or constitute grave abuse of discretion, should not be interfered with. 10 Technicalities,
which are not conducive to free, orderly and honest elections, but on the contrary may defeat the will of the
sovereign people as expressed in their votes, should not be allowed to hamper the Commission on Elections
in the performance of its duties. To sustain the petitioner in the present case is to deny the Commission on
Elections the power to retrieve the copies of the election returns from the ballot boxes in order that the true
number of votes cast for a candidate may be known and thus permit a canvass on the basis of election
returns that are patently falsified. We cannot, and We must not, sanction the stand of petitioner.

As We have adverted to, the Commission on Elections has the power to inquire whether there exist
discrepancies among the various copies of the election returns. 11 Of all the copies prepared by the board of
inspectors the copy least susceptible to being tampered with is the one deposited in the ballot box. Where
the three copies outside the ballot boxes appear to have been uniformly altered, there is no plausible reason
why the copy deposited in the ballot box may not be used to determine whether discrepancies exist in the
various copies. Inasmuch as the Commission on Elections has the right to determine whether said
discrepancies exist, it must also have the right to consult said returns, which cannot be done unless the
ballot boxes are opened. It is noteworthy that the Revised Election Code does not provide that it is the
courts that have the power to order the opening of the ballot box in a situation like this.

Section 157 of the Revised Election Code, on which petitioner herein relies in support of his stand in the
present case, authorities the opening of the ballot box whenever it is the subject of an official investigation.
It provides:jgc:chanrobles.com.ph

"The municipal treasurer shall keep the boxes unopened in his possession in a secure place and under his
responsibility for three months, unless they are the subject of an official investigation, or a competent court
or tribunal shall demand them sooner, or the competent authority shall order their preservation for a longer
time in connection with any pending contest or investigation." cralaw virtua1aw library

Under this section, the ballot boxes may be opened in case there is an election contest. They may also be
opened even if there is no election contest when their contents have to be used as evidence in the
prosecution of election frauds. 12 Moreover, they may be opened when they are the subject of any official
investigation which may be ordered by a competent court or other competent authority. 13 The "competent
authority" must include the Commission on Elections which is charged with the administration and
enforcement of the laws relative to the conduct of elections. In the instant case, the Commission on
Elections found that it has been clearly established that the election returns outside the ballot boxes, in all
the precincts in the municipalities of Candon, Santiago and Sta. Cruz have been tampered with. It is within
the power of the Commission to order the investigation of that anomaly that has connection with the
conduct of elections. The investigation may be in connection with the prosecution for the violations of the
election laws and at the same time to ascertain the condition of the election returns inside the ballot boxes
as compared with the election returns outside the ballot boxes, for the same precincts. The opening of the
ballot boxes may, therefore, be prayed for by a candidate who is prejudiced by the apparent falsification of
the election returns outside the ballot boxes, and in ordering the opening of the ballot boxes the purpose of
the Commission is not to help a particular candidate win an election but to properly administer and enforce
the laws relative to the conduct of elections.

From what has been said We hold that the order of December 22, 1965, being questioned by the petitioner
in the present case, was perfectly within the power of the Commission on Elections to issue.

Wherefore, the petition for certiorari and prohibition in the present case is dismissed, with costs against the
petitioner. It is so ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Sanchez and Castro, JJ., concur.

TUPAY T. LOONG vs. COMMISSION ON ELECTIONS and ABDUSAKUR TAN ( G.R.

No. 133676)
TUPAY T. LOONG vs. COMMISSION ON ELECTIONS and ABDUSAKUR TAN
G.R. No. 133676
April 14, 1999

FACTS: 

Automated elections systems was used for the May 11, 1998 regular elections held in the Autonomous Region
in Muslim Mindanao (ARMM) which includes the Province of Sulu. Atty. Jose Tolentino, Jr. headed the
COMELEC Task Force to have administrative oversight of the elections in Sulu.

On May 12, 1998, some election inspectors and watchers informed Atty. Tolentino, Jr. of discrepancies
between the election returns and the votes cast for the mayoralty candidates in the municipality of Pata. To
avoid a situation where proceeding with automation will result in an erroneous count, he suspended the
automated counting of ballots in Pata and immediately communicated the problem to the technical experts
of COMELEC and the suppliers of the automated machine. After the consultations, the experts told him that
the problem was caused by misalignment of the ovals opposite the names of candidates in the local ballots.
They found nothing wrong with the automated machines. The error was in the printing of the local ballots,
as a consequence of which, the automated machines failed to read them correctly. Atty. Tolentino, Jr.
called for an emergency meeting of the local candidates and the military-police officials overseeing the Sulu
elections. Among those who attended were petitioner Tupay Loong and private respondent Abdusakar Tan
and intervenor Yusop Jikiri (candidates for governor.) The meeting discussed how the ballots in Pata should
be counted in light of the misaligned ovals. There was lack of agreement. Some recommended a shift to
manual count (Tan et al) while the others insisted on automated counting (Loong AND Jikiri). 
Reports that the automated counting of ballots in other municipalities in Sulu was not working well were
received by the COMELEC Task Force. Local ballots in five (5) municipalities were rejected by the automated
machines. These municipalities were Talipao, Siasi, Tudanan, Tapul and Jolo. The ballots were rejected
because they had the wrong sequence code. 

Before midnight of May 12, 1998, Atty. Tolentino, Jr. was able to send to the COMELEC en banc his report
and recommendation, urging the use of the manual count in the entire Province of Sulu. 6 On the same day,
COMELEC issued Minute Resolution No. 98-1747 ordering a manual count but only in the municipality of
Pata.. The next day, May 13, 1998, COMELEC issued Resolution No. 98-1750 approving, Atty. Tolentino, Jr.'s
recommendation and the manner of its implementation. On May 15, 1998, the COMELEC en banc issued
Minute Resolution No. 98-1796 laying down the rules for the manual count. Minute Resolution 98-1798 laid
down the procedure for the counting of votes for Sulu at the PICC.

COMELEC started the manual count on May 18, 1998.

ISSUE:

1. Whether or not a petition for certiorari and prohibition under Rule 65 of the Rules of Court is the
appropriate remedy to invalidate the disputed COMELEC resolutions.
2. Assuming the appropriateness of the remedy, whether or not COMELEC committed grave abuse of
discretion amounting to lack of jurisdiction in ordering a manual count. (The main issue in the case at bar)
2.a. Is there a legal basis for the manual count?
2.b. Are its factual bases reasonable?
2.c. Were the petitioner and the intervenor denied due process by the COMELEC when it ordered a manual
count?
3. Assuming the manual count is illegal and that its result is unreliable, whether or not it is proper to call for
a special election for the position of governor of Sulu.

HELD: 

the petition of Tupay Loong and the petition in intervention of Yusop Jikiri are dismissed, there being no
showing that public respondent gravely abused its discretion in issuing Minute Resolution Nos. 98-1748, 98-
1750, 98-1796 and 98-1798. Our status quo order of June 23, 1998 is lifted.

(1.) Certiorari is the proper remedy of the petitioner. The issue is not only legal but one of first impression
and undoubtedly suffered with significance to the entire nation. It is adjudicatory of the right of the
petitioner, the private respondents and the intervenor to the position of governor of Sulu. These are enough
considerations to call for an exercise of the certiorari jurisdiction of this Court.

(2a). A resolution of the issue will involve an interpretation of R.A. No. 8436 on automated election in
relation to the broad power of the COMELEC under Section 2(1), Article IX(C) of the Constitution "to enforce
and administer all laws and regulations relative to the conduct of an election , plebiscite, initiative,
referendum and recall." Undoubtedly, the text and intent of this provision is to give COMELEC all the
necessary and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful,
and credible elections.

The order for a manual count cannot be characterized as arbitrary, capricious or whimsical. It is well
established that the automated machines failed to read correctly the ballots in the municipality of Pata The
technical experts of COMELEC and the supplier of the automated machines found nothing wrong the
automated machines. They traced the problem to the printing of local ballots by the National Printing
Office. It is plain that to continue with the automated count would result in a grossly erroneous count. An
automated count of the local votes in Sulu would have resulted in a wrong count, a travesty of the
sovereignty of the electorate

In enacting R.A. No. 8436, Congress obviously failed to provide a remedy where the error in counting is not
machine-related for human foresight is not all-seeing. We hold, however, that the vacuum in the law cannot
prevent the COMELEC from levitating above the problem. . We cannot kick away the will of the people by
giving a literal interpretation to R.A. 8436. R.A. 8436 did not prohibit manual counting when machine count
does not work. Counting is part and parcel of the conduct of an election which is under the control and
supervision of the COMELEC. It ought to be self-evident that the Constitution did not envision a COMELEC
that cannot count the result of an election.

It is also important to consider that the failures of automated counting created post election tension in Sulu,
a province with a history of violent elections. COMELEC had to act desively in view of the fast deteriorating
peace and order situation caused by the delay in the counting of votes
(2c) Petitioner Loong and intervenor Jikiri were not denied process. The Tolentino memorandum clearly
shows that they were given every opportunity to oppose the manual count of the local ballots in Sulu. They
were orally heard. They later submitted written position papers. Their representatives escorted the transfer
of the ballots and the automated machines from Sulu to Manila. Their watchers observed the manual count
from beginning to end. 
3. The plea for this Court to call a special election for the governorship of Sulu is completely off-line. The
plea can only be grounded on failure of election. Section 6 of the Omnibus Election Code tells us when there
is a failure of election, viz:

Sec. 6. Failure of election. — If, on account of force majeure, terrorism, fraud, or other analogous causes,
the election in any polling place has not been held on the date fixed, or had been suspended before the hour
fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission
of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in
any of such cases the failure or suspension of election would affect the result of the election, the
Commission shall on the basis of a verified petition by any interested party and after due notice and hearing,
call for the holding or continuation of the election, not held, suspended or which resulted in a failure to
elect but not later than thirty days after the cessation of the cause of such postponement or suspension of
the election or failure to elect.
There is another reason why a special election cannot be ordered by this Court. To hold a special election
only for the position of Governor will be discriminatory and will violate the right of private respondent to
equal protection of the law. The records show that all elected officials in Sulu have been proclaimed and are
now discharging their powers and duties. These officials were proclaimed on the basis of the same manually
counted votes of Sulu. If manual counting is illegal, their assumption of office cannot also be countenanced.
Private respondent's election cannot be singled out as invalid for alikes cannot be treated unalikes. 
The plea for a special election must be addressed to the COMELEC and not to this Court

G.R. No. 86362-63 October 27, 1989

RAMON D. DUREMDES, petitioner, 
vs.
COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF ILOILO, LAKAS
NG BANSA and CIPRIANO B. PENAFLORIDA, respondents.

Panganiban, Benitez, Barinaga & Bautista Law Offices, Lead Counsel for petitioner.

Nery D. Duremdes Co-counsel for petitioner.

Brillantes, Nachura, Navarro & Arcilla Law Offices for private respondent.

MELENCIO-HERRERA, J.:

At stake in this election controversy is the Vice-gubernatorial position of the Province of Iloilo.

The chronology of the facts and of the case follows:

1. In the 18 January 1988 elections, petitioner Ramon D. DUREMDES, private respondent Cipriano
B. PENAFLORIDA, and Rufino Palabrica ran for the office of Vice-Governor of the Province of Iloilo.

DUREMDES was the official candidate of the Liberal Party (LP) and PDP-Laban coalition, while
PENAFLORIDA was the official candidate of the Lakas ng Bansa (Lakas).
2. During the canvass of votes by the Provincial Board of Canvassers of Iloilo, which lasted from 20
January to 31 January 1988, PENAFLORIDA objected verbally to some 110 election returns from
various precincts, which he followed up with written objections. The Board overruled the same in
separate Orders either because they were not timely filed or that the formal defects did not affect the
genuineness of the returns, or that in case of allegations of tampering, no evidence was presented to
support the charge. The Board thus ordered the inclusion of the questioned election returns. This
was reflected in a separate column under the heading "Contested/Deferred Votes" in the "Certificate
of Votes of Candidates" (Form No. 13A, Annex "K," Petition, p. 60 Rollo).

3. Under date of 29 January 1988, PENAFLORIDA and the Lakas filed with the COMELEC an
"Appeal by Way of a Petition for Review," from the aforesaid rulings of the Board pleading, among
others, for the exclusion of the questioned election returns and for PENAFLORIDA's proclamation as
the elected Vice-Governor of Iloilo (Annex "L," Ibid., p. 62, Rollo).

4. On 30 January 1988, PENAFLORIDA filed, also with the COMELEC, a Petition seeking the
annulment of election returns and the suspension of the proclamation of any candidate, docketed as
SPC Case No. 88-448 (Annex "Q," Ibid., p. 96, Rollo).

5. On 31 January 1988, in a "Certification of Canvass of Votes and Proclamation of the Winning

Candidates for Provincial Offices" (Form No. 26, Annex "N," Ibid., p. 84, Rollo), the Board
proclaimed DUREMDES as the duly elected Vice- Governor, together with the duly elected Governor
and only eight (8) members of the Sangguniang Panlalawigan of Iloilo. Certified to was that
DUREMDES had garnered 157,361 votes (the number of his uncontested votes) in 2,377 precincts.

Apparently, the Board had made the proclamation upon DUREMDES' "Manifestation and Motion,"
dated the same day, 31 January 1988, that "the contested returns will not adversely affect the
uncontested results of the election (See Section 245, Omnibus Election Code) ... because of the
absolute certainty that candidate Ramon Duremdes has obtained the highest number of votes,
whether or not the contested votes were excluded."

6. The tabulated data in the Certificate of Votes of Candidates (Annex "K," Petition) is reproduced
below in so far as the protagonists herein are concerned, with the totals and/or remainders supplied
by us:

  Non-Contested Contested/ Grand

    Deferred Total

    Votes  

DUREMDES 157,361 13,373 171,734

PENAFLORIDA 150,075 + 4,427 -154,602

  7,286 17,800 17,232

6. On 2 February 1988, DUREMDES took his oath and assumed office (Annex "O," Ibid.).

7. Also on 2 February 1988, an "Intervention with Motion to Dismiss" was filed by DUREMDES and
two other candidates for the Sangguniang Panlalawigan, seeking the denial of PENAFLORIDA's
Petition for Annulment before the COMELEC, for lack of merit.
8. On 12 February 1988, Perla S. Zulueta (also an Intervenor in SPC Case No. 88-448), filed SPC
Case No. 88-653 pleading that she be proclaimed as one of the winning candidates in the 10-
member Iloilo Sangguniang Panlalawigan.

9. On 8 March 1988, PENAFLORIDA filed an Amended Petition challenging, in addition, the legality
of the composition of the Provincial Board of Canvassers, "a ground just known lately," and praying
for a recanvassing of the objected election returns.

10. On 4 April 1988, the COMELEC granted a Motion for the consolidation of SPC Case No. 88-653
with SPC Case No. 88-448.

11. On 20 June 1988, PENAFLORIDA filed with the COMELEC a Supplemental Petition ('in
amplification of the Amended petition for verification and correction") charging, among others, that
DUREMDES was proclaimed "on the basis of increased votes in the unofficial and separately tallied
Statement of Votes, more than what was actually reflected in the Election Returns."

12. On 20 September 1988, the COMELEC (Second Division), after hearing, issued a Per
Curiam Resolution, sustaining the rulings of the Board of Canvassers on PENAFLORIDA's
objections as well as DUREMDES' proclamation. The decretal portion of that Resolution reads:

WHEREFORE, IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered:

1. Sustaining and affirming the rulings of the Provincial Board of Canvassers of Iloilo
on the objections interposed by petitioner on the inclusion in the canvass of the
questioned returns;

2. Sustaining the proclamation of the winning candidate for Vice- Governor;

3. Directing the Provincial Board of Canvassers to immediately reconvene and to

include in the canvass the questioned election returns; and thereafter to proclaim the
winning candidates for the Ninth (9th) and Tenth (10th) slots for the Sangguniang
Panlalawigan of the Province of Iloilo; and

4. Directing the Law Department of the Commission to conduct a thorough

investigation into the matter of the reported falsification of the transcripts of the
stenographic notes of Stenographer Nelly C. Escana to determine the parties
responsible therefor and to cause the filing of the necessary criminal complaint
against those probably guilty thereof as the evidence may warrant, and if the
assistance of the National Bureau of Investigation or any other investigative arm of
the Government for that purpose is necessary, to request for such assistance.

No pronouncement as to costs. (pp. 137-138, Rollo) (Italics ours).

13. On 27 September 1988, PENAFLORIDA moved for reconsideration, whereupon, the Second
Division certified and elevated the case to the COMELEC en banc.

14. On 4 October 1988, PENAFLORIDA filed a Motion to Suspend Implementation of the Second
Division Resolution of 20 September 1988 pending resolution of his Motion for Reconsideration,
which suspension was granted by the COMELEC on 5 October 1988.
15. In the meantime, on 10 December 1988, the Board reconvened for the purpose of proclaiming
the 9th and 10th placers for the Sangguniang Panlalawigan of Iloilo. It was at the scheduled
promulgation of 15 December 1988 that the Chairman of the Board openly admitted the existence of
discrepancies between the entries of votes in the Statement of Votes and the votes reflected in the
questioned election returns (P. 6, COMELEC en banc Decision).

16. On 12 January 1989, the COMELEC en banc rendered the assailed Per Curiam Decision with
the following disposition:

WHEREFORE, IN THE LIGHT OF ALL THE FOREGOING, judgment is hereby

rendered:

1. Affirming the following parts of the dispositive portion of the Resolution of the
Second Division promulgated on 20 September 1988:

1. Sustaining and affirming the rulings of the Provincial Board of

Canvassers of Iloilo on the objections interposed by petitioner on the
inclusion in the canvass of the questioned returns.

2. Directing the Provincial Board of Canvassers to immediately

reconvene and to include in the canvass the questioned election
returns and thereafter to proclaim the winning candidates for the
Ninth (9th) and Tenth (10th) slots for the Sangguniang Panlalawigan
of the Province of Iloilo; and

3. Directing the Law Department of the Commission to conduct a

thorough investigation into the matter of the reported falsification of
the transcripts of the stenographic notes of Stenographer Nelly
Escana to determine the parties responsible therefor and to cause
the fling of the necessary criminal complaint against those probably
guilty thereof as the evidence may warrant, and if the assistance of
the National Bureau of Investigation or any other investigative arm of
the Government for that purpose is necessary, to request for such
assistance.

2. Reversing that part of the dispositive portion which reads:

2. Sustaining the proclamation of the winning candidate for Vice-

Governor and setting aside the proclamation of Intervenor Ramon
Duremdes as Vice-Governor of Iloilo.

3. Declaring as null and void the proclamation of Intervenor Ramon Duremdes;

4. Directing the Provincial Board of Canvassers of Iloilo to immediately reconvene

and to include in the canvass of votes for Vice-Governor the questioned/contested
returns. For that purpose, the Board shall make a formal tabulation of the results of
the contested returns and shall prepare a new Statement of Votes and Certificate of
Canvass; and

5. Directing the Provincial Board of Canvassers to thereafter proclaim the winning

candidate for Vice-Governor of Iloilo (pp. 38-40, Rollo). (Italics ours)
His proclamation having been nullified by the COMELEC, DUREMDES avails of this recourse.

On 17 January 1989, the Court ordered that the status quo existing prior to the promulgation of the
above COMELEC en banc Decision be maintained until further orders.

DUREMDES faults the COMELEC with grave abuse of discretion for having disregarded the well-
settled doctrines (1) that matters of protest, objections or issues not originally raised before the
Board of Canvassers upon the opening of the returns, cannot be raised for the first time before the
COMELEC; and (2) that after a proclamation has been made, a pre-proclamation controversy is no
longer viable, the proper recourse, being an election protest.

It is true that, before the Board of Canvassers, PENAFLORIDA did not raise in issue the matter of
the discrepancies between the number of votes appearing in the Statement of Votes and that in the
Election Returns. As a matter of fact that matter is not even listed as one of the issues that may be
raised in pre-proclamation controversies under Section 243 of the Omnibus Election Code. 1

Nonetheless, as aptly stated in the assailed COMELEC en banc Decision:

Indeed, errors in the Statement of Votes do not indubitably appear to be issues that
may be raised in a pre-proclamation controversy under Section 243 of the Omnibus
Election Code. In this respect, the law is silent as to when the same may be raised.
We are, however, not unmindful of the fact that the statement of votes supports the
certificate of canvass and shall be the basis of proclamation (Sec. 231, paragraph 2).
Consequently, any error in the Statement of Votes would affect the proclamation
made on the basis thereof. The true will of the electorate may thus be not fully and
faithfully reflected by the proclamation (at pp. 7-8).

We find no grave abuse of discretion in the foregoing COMELEC pronouncement. The Statement of
Votes is a tabulation per precinct of the votes garnered by the candidates as reflected in the election
returns. Its preparation is an administrative function of the Board of Canvassers. As pointed out by
the Solicitor General, "it is a purely mechanical act of the Board of Canvassers in the performance of
which the Commission has direct control and supervision," pursuant to Section 227 of the Omnibus
Election Code.

Sec. 227. Supervision and control over board of canvassers. — The Commission
shall have direct control and supervision over the board of canvassers.

xxx xxx xxx

By virtue of that power, added to its overall function to "decide all questions affecting elections"
(Article IX[C] Section 2[3], 1987 Constitution), a question pertaining to the proceedings of said Board
may be raised directly with the COMELEC as a pre-proclamation controversy.

Sec. 241. Definition. — A pre-proclamation controversy refers to any question

pertaining to or affecting the proceedings of the board of canvassers which may be
raised by any candidate or by any registered political party or coalition of political
parties before the board or directy with the Commission, or any matter raised under
Sections 233, 234, 235 and 236 in relation to the exploration, transmission, receipt,
custody and appreciation of the election returns (Omnibus Election Code). (Italics
supplied).
When so elevated, the COMELEC acts in the exercise of its original jurisdiction for which reason it is
not indispensable that the issue be raised before the Board of Canvassers during the canvassing.
The COMELEC is not discharging its appellate jurisdiction under Section 245 of the Omnibus
Election Code, which has to do with contests regarding the inclusion or exclusion in the canvass of
any election returns, with a prescribed appellate procedure to follow.2

Cognizance may also be taken of the fact that at the time PENAFLORIDA filed the Supplemental
Petition on 20 June 1988, there was no clear-cut rule on the matter. It was only in the COMELEC
Rules of Procedure, which took effect on 15 November 1988, wherein it was provided under
subparagraph (2), paragraph (a), Section 4 of Rule 27, that the matter of correction of the statement
of votes may be the subject of a pre-proclamation case which may be filed directly with the
Commission. Nonetheless, there should be no question, considering the aforequoted Section 241 in
relation to Section 227 of the Omnibus Election Code, that the issue is one that can be raised
directly with the COMELEC. It is a procedure that best recommends itself specially considering that
the Statement of Votes is a vital component in the electoral process. It supports the Certificate of
Canvass and is the basis for proclamation.

SEC. 231. Canvass by the board. —

xxx xxx xxx

The respective board of canvassers shall prepare a certificate of canvass duly signed
and affixed with the imprint of the thumb of the right hand of each member,
supported by a statement of the votes received by each candidate in each polling
place and, on the basis thereof, shall proclaim as elected the candidates who
obtained the highest number of votes cast in the province, city, municipality or
barangay. Failure to comply with this requirement shall constitute an election offense.

xxx xxx xxx

DUREMDES also calls attention to Rule 13, Section 1 (g) of the COMELEC Rules of Procedure,
which does not allow the filing of supplemental pleadings. As stated heretofore, however, these
Rules took effect only on 15 November 1988, or five months after the Supplemental Petition was
filed. Said rule, therefore, cannot be given retroactive effect the legal truth being that laws of
procedure may be retroactively applied provided no substantial rights are impaired (Bernardo vs.
Court of Appeals, G.R. No. 30821, December 14,1988).

That discrepancies exist between the entries in the Statement of Votes and that reflected in the
questioned election returns, was openly admitted by the Chairman of the Board of Canvassers at the
scheduled promulgation on 15 December 1988 of the 9th and 10th placers of the Sangguniang
Panlalawigan (p. 6, COMELEC Decision). What is more, it is also admitted by the parties except that
PENAFLORIDA assails the correctness of the Statement of Votes, while DUREMDES maintains its
correctness but avers the possibility of the tampering of the questioned election returns (p. 7, Ibid.).

Under the circumstances, therefore, and considering that any error in the Statement of Votes would
affect the proclamation made on the basis thereof, and primordially, in order to determine the true
will of the electorate, the COMELEC Decision ordering the Board of Canvassers to reconvene and
prepare a new Statement of Votes and Certificate of Canvass should be upheld.

The Commission on Elections has ample power to see to it that elections are held in
a clean and orderly manner and it may decide all questions affecting the elections. It
has original jurisdiction on all matters relating to election returns, including the
 verification of the number of votes received by opposing candidates in the election
returns as compared to the statement of votes in order to insure that the true will of
the people is known. Such clerical error in the statement of votes can be ordered
corrected by the COMELEC (Villaroya vs. Comelec, L-79646- 47,13 November
1987,155 SCRA 633).

It is DUREMDES' further submission that his proclamation could not be declared null and void
because a pre-proclamation controversy is not proper after a proclamation has been made, the
proper recourse being an election protest. This is on the assumption, however, that there has been a
valid proclamation. Where a proclamation is null and void, the proclamation is no proclamation at all
and the proclaimed candidate's assumption of office cannot deprive the COMELEC of the power to
declare such nullity and annul the proclamation (Aguam vs. COMELEC, L- 28955, 28 May 1968, 23
SCRA 883).

DUREMDES' proclamation must be deemed to have been null and void. It was made on 31 January
1988 after PENAFLORIDA had filed with the COMELEC on 29 January 1988 an "Appeal by Way of
a Petition for Review" from the rulings of the Board, and on 30 January 1988, a Petition for the
annulment of' election returns and the suspension of the proclamation of any candidate (SPC Case
No. 88-448). The COMELEC had not resolved either Petition at the time the proclamation was
made. Pursuant to Sections 245, supra, and 238 of the Omnibus Election Code, therefore, the Board
of Canvassers should not have proclaimed any candidate without waiting for the authorization by the
COMELEC. Any proclamation thus made is void ab initio.

SEC. 238. Canvass of remaining or unquestioned returns to continue. — In cases

under Sections 233, 234, 235 and 236 hereof, the board of canvassers shall continue
the canvass of the remaining or unquestioned election returns. If, after the canvass
of all the said returns, it should be determined that the returns which have been set
aside will affect the result of the election, no proclamation shall be made except upon
orders of the Commission after due notice and hearing. Any proclamation made in
violation hereof shall be null and void.

In this case, with 110 contested election returns and 25,930 ballots questioned (COMELEC
Resolution, September 20,1988, p. 4, p. 115, Rollo), DUREMDES' margin of 7,286 non-contested
votes could very well be off-set.

Moreover, DUREMDES' proclamation was made on the basis of an official canvass of the votes cast
in 2,377 precincts only (Annex "N," Petition), when there were actually 2,487 precincts. The votes in
110 precincts, therefore, were not included, which is exactly the number of 110 election returns
questioned by PENAFLORIDA. Further, DUREMDES was certified to have garnered 157,361 votes
(ibid.), which number represents the non-contested votes only, and clearly excludes the totality of
the "contested/deferred votes" of the candidates concerned.

DUREMDES' proclamation having been based on an incomplete canvass, no grave abuse of

discretion can be ascribed to the COMELEC for directing the Provincial Board of Canvassers of Iloilo
"to immediately reconvene and to include in the canvass of votes for Vice-Governor the
questioned/contested returns." All the votes cast in an election must be considered because to
disregard returns is in effect to disenfranchise the voters (Mutuc vs. COMELEC, L-28517, February
21, 1968, 22 SCRA 662). A canvass can not be reflective of the true vote of the electorate unless all
returns are considered and none is omitted (Datu Sinsuat vs. Pendatun, L-31501, June 30, 1970, 33
SCRA 630).
Over and above all else, the determination of the true will of the electorate should be the paramount
consideration.

Election contests involve public interest. Technicalities and procedural barriers

should not be allowed to stand if they constitute an obstacle to the determination of
the true will of the electorate in the choice of their elective officials ... Laws governing
election contests must be liberally construed to the end that the will of the people in
the choice of public officials may not be defeated by mere technical objections. In an
election case the court has an imperative duty to ascertain by all means within its
command who is the real candidate elected by the electorate" (Juliano vs. CA and
Sinsuat, 20 SCRA 808, 818-19, July 28,1967).

WHEREFORE, absent any grave abuse of discretion on the part of respondent Commission on
Elections, this Petition for certiorari is hereby DISMISSED. The status quo Order heretofore issued is
hereby ordered LIFTED. No costs.

SO ORDERED.

Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento,
Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur