Yanong,maria Anny- Elec.docx

RESIDENCY REQUIREMENT 44. NAVAL V. COMELEC G.R. No. 207851 July 8, 2014 FACTS: From 2004 to 2007 and 2007 to 2010, Angel Naval had been elected and had served as a member of the Sanggunian, Second District, Province of Camarines Sur. The President approved Republic Act (R.A.) No. 9716, which reapportioned the legislative districts in Camarines Sur. In the 2010 elections, Naval once again won as among the members of the Sanggunian, Third District. He served until 2013. In the 2013 elections, Naval ran anew and was re-elected as Member of the Sanggunian, Third District. Nelson Julia was likewise a Sanggunian Member candidate from the Third District in the 2013 elections. On October 29, 2012, he invoked Section 7810 of the Omnibus Election Code (OEC) and filed before the COMELEC a Verified Petition to Deny Due Course or to Cancel the Certificate of Candidacy of Naval. Julia posited that Naval had fully served the entire Province of Camarines Sur for three consecutive terms as a member of the Sanggunian, irrespective of the district he had been elected from. The three-term limit rule’s application is more with reference to the same local elective post, and not necessarily in connection with an identical territorial jurisdiction. Allowing Naval to run as a Sanggunian member for the fourth time is violative of the inflexible three-term limit rule enshrined in the Constitution and the LGC, which must be strictly construed.

ISSUE: WON Naval could run as a provincial board member when the legislative district he initially served had already been reapportioned in such a way that 8 out of its 10 town constituencies are carved out and renamed as another district.

HELD: The Court finds no compelling reason to grant the reliefs prayed for by Naval. For the Court to declare otherwise would be to create a dangerous precedent unintended by the drafters of our Constitution and of R.A. No. 9716. Considering that the one-term gap or rest after three consecutive elections is a result of a compromise among the members of the Constitutional Commission, no cavalier exemptions or exceptions to its application is to be allowed. Aldovino affirms this interpretation. Further, sustaining Naval’s arguments would practically allow him to hold the same office for 15 years. These are the circumstances the Constitution explicitly intends to avert. The actual difference in the population of the old Second District from that of the current Third District amounts to less than 10% of the population of the latter. This numerical fact renders the new Third District as essentially, although not literally, the same as the old Second District. Hence, while Naval is correct in his argument that Sanggunian members are elected by district, it does not alter the fact that the district which elected him for the third and fourth time is the same one which brought him to office in 2004 and 2007.

PRE PROCLAMATION CONTROVERSY 45. MATALAM V. COMELEC 271 SCRA 733 FACTS: Petitioner Matalarn and Private Respondent Candao were both candidates for Governor of the Province of Maguindanao in the May 1995 elections. During the canvass of the election returns in the municipalities of Datu Piang and Maganoy, Petitioner challenged before the respective Municipal Boards of Canvassers the authenticity of the election returns in said towns. The Provincial Board of Canvassers rejected the pleas of the petitioner, thus a petition for exclusion of the results of the said municipalities were filed before the COMELEC. During the pendency of the action, respondent was proclaimed duly elected governor. The same proclamation was nullified by the second division of the COMELEC and thereafter reinstated the proclamation. A motion for reconsideration was filed by petitioner and for technical examination of signatures and thumbmarks of registered voters. The same was denied, hence a petition for certiorari. Petitioner further claims that the returns in one municipality were falsified and spurious as there was actually no election conducted in that place and in some precints, the number of votes exceeded the number of voters.

ISSUES: 1. Whether or not the questioned election returns be the proper subjects of a pre-proclamation controversy? 2. Whether or not the COMELEC may go beyond the face of election returns in a pre-proclamation case?

HELD: 1. No. The Omnibus Election Code defines a pre-proclamation controversy as “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 directly with the Commission, or any matter raised under Sections233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns.” The issues raised by the petitioner are not among those enumerated under Sec. 243 of the Omnibus Election Code. The enumeration therein is restrictive and exclusive. Petitioner did not claim and failed to characterize the returns as incomplete, contain material defects, appear to be tampered with falsified, or contain discrepancies. 2. No. The COMELEC is not required to go beyond election returns which are on their face regular and authentic. The proper remedy available to the petitioner in this case is election protest. Pre-proclamation controversies are to be resolved in a summary proceeding and should not subject the returns to meticulous technical examinations. Technical examination is not proper in a pre-proclamation controversy.

46. VELAYO V. COMELEC G.R. NO. 135613 MARCH 9, 2000 FACTS: Arthur Velayo (petitioner) and Ernesto Natividad (respondent) were candidates for mayor of Gapan, Neva Ecija in the 1998 elections. In the canvass of election returns, Natividad orally sought the exclusion of Election Returns Nos. 4245882 and 4900753, the first being allegedly incomplete and containing material defects, while the other having material defects and without the thumb marks of the official watchers. The Board of Canvassers denied these objections. Respondent then filed with COMELEC for the annulment of the election returns. The petition did not name any respondent. On the same day, respondent also sent a letter to the Board seeking the disqualification of its Chairman and Vice Chairman for gross violation of the law. The Board denied the prayer to suspend the canvass, and declared petitioner as the Mayor of Gapan with a vote of 10,697. Respondent obtained 10,427 votes. Respondent filed another case with the COMELEC to appeal the ruling of the Board. Again, the petition did not name the Canvassers or Velayo as respondents. Neither were they furnished copies of the petition. A third case was filed, and late a supplemental appeal. Again, the petition did not name the Canvassers or Velayo as respondents. Neither were they furnished copies of the petition. He filed a motion for admission for new evidence, without furnishing copies to the petitioner. The COMELEC dismissed the petitions for being moot and academic. In his motion for reconsideration, respondent contended that the dismissal order was contrary to law and evidence. Petitioner was not furnished a copy. COMELEC en banc issued the questioned resolution, annulling the proclamation of Velayo as mayor, directing the exclusion of the subject election returns. It was only then that petitioner was informed. Respondent was declared mayor.

ISSUES: W/N COMELEC committed a grave abuse of discretion when it excluded votes cast for the certain election returns, without notice and hearing consistent with due process?

HELD: Motion for Reconsideration of the Respondent was filed out of time. 2. COMELEC failed to be faithful to COMELEC Rules of Procedure, which provides that all pre-proclamation controversies shall be heard summarily after due notice.” Petitioner was not furnished with any notice of the pre-proclamation proceedings from beginning to end. Natividad also did not give his notices of appeal to the Board of Canvassers. All that was received by the petitioner was the en banc resolution annulling his proclamation. Velayo is a real party in interest. His non-inclusion as respondent and his lack of notice of the proceedings in the COMELEC which resulted in the cancellation of his proclamation constitute clear denial of due process. Pre and post proclamation proceedings should be resolved summarily but not ex parte. This denies petitioner an opportunity to present rebuttal evidence. It is true that RA No. 7166 (Omnibus Election Code) provides for summary proceedings in pre-proclamation cases and does not require a trial type hearing. Nevertheless, summary proceedings cannot be stretched to mean ex parte proceedings. 4. It does not appear that the COMELEC annulled Velayo’s proclamation on the basis of official records and evidence. Sec 18 of RA 7166 governs the appeals of decisions made the Board of Canvassers. It provides, “All pre- proclamation controversies on election returns or certificates of canvass shall, on the

basis of the records and evidence elevated to it by the board of canvassers, be disposed of summarily by the Commission within seven (7) days from receipt thereof.“ There is no showing that the official records of the Board of Canvassers were forwarded to the respondent COMELEC and were used to cancel Velayos proclamation. 5. The new and additional evidence were not presented before the Board of Canvassers.Petitioner Velayo was not furnished these evidence and given the chance to refute them. This is another denial of due process. The new evidence’s evidentiary value cannot justify the annulment of the proclamation of petitioner Velayo. The COMELEC relied on the affidavits of the watchers of the private respondent. Taken together, these affidavits do not constitute substantial evidence. The truthfulness of their affidavits is highly suspect. The more impartial witnesses like the teachers were not presented by Natividad. COMELECs resort to the doctrine of statistical improbability is flawed. As observed by petitioner Velayo, from experiences in past elections, respondent COMELEC should be aware that it is possible for one candidate or even a few candidates to get zero votes in one or a few precincts. COMELEC’s resolution is set aside. COMELEC is ordered to reinstate Velayo as mayor.

47. DIMAPORO V. COMELEC June 26, 1990 SUBJECT: No necessity to apply the Lagumbay doctrine; Pre-proclamation controversies shall be resolved in summary proceedings; Remedy of petitioners; Limitations of pre-preclamation controversies; Mandatory requirement to comply with procedure for pre-proclamation controversies FACTS: 1990, an election for Regional Governor, Regional Vice-Governor for the Autonomous Region of Muslim Mindanao (ARMM) was conducted pursuant to Republic Act No. 6734, the Organic Act creating that Autonomous Region. Sultan Mohammad and Nurhussein Ututalum (petitioners) were the official candidates of the United Opposition (KBL-NP) coalition party while Zacaria Candao and Benjamin Loong (respondents) were the official candidates of the Laban ng Demokratikong Pilipino (LDP) party. G.R. Nos. 93201-04 During the canvass, petitioners raised objections to the inclusion of certain election returns. From adverse rulings of the Sulu Provincial Board of Canvassers and the Regional Board of Canvassers, petitioners appealed to the Commission on Elections ("Comelec"). Petitioners claimed that the questioned election returns were "spurious, obviously manufactured and/or statistically improbable.” The First Division of the Comelec dismissed all the appeals for lack of merit and for lack of jurisdiction, particularly: (a) the objections raised against the election returns were "merely generalizations" and not supported by substantial evidence, and (b) that petitioners had not filed a written intent to appeal from the rulings of the Provincial Board of Canvassers. Petitioners appealed to the Comelec En Banc which modified the First Division by ordering the exclusion from the canvass of the election returns from 88 precincts for being "statistically improbable. " The Comelec En Banc applied Lagumbay v. Comelec where all the candidates of one party garnered all the votes, each of them receiving exactly the same number of votes, while all the candidates of the opposing party getting uniformly and precisely nothing. In Lagumbay, the Court held such returns to be "statistically improbable" and "obviously manufactured", the fraud being so palpable from the return itself that there was no reason to give the return prima facie value and that consequently, evidence aliunde to show fraud was entirely unnecessary. G.R. No. 93205 During the canvass of election returns from the Municipality of Languyan in the Province of Tawi-Tawi, petitioners objected to the inclusion of the election returns from 36 precincts. In the questioned precincts, 100% or 99% of registered voters are recorded to have cast their votes, and respondents obtained all the votes cast while petitioners got a uniform zero vote. The Provincial Board of Canvassers of Tawi-Tawi overruled the objections of petitioners for failure to present evidence aliunde of the fraud alleged. Petitioners appealed to the Comelec. The Second Division of the Comelec reversed the Board of Canvassers by ordering the exclusion of 15 election returns under the authority of the Lagumbay doctrine of "statistical improbability". The inclusion of the remaining election returns from 21 other precincts was in effect sustained since not all the candidates of the LDP had received exactly the same number of vote. Petitioners appealed to the Comelec En Banc which appeal was denied. G.R. No. 93602 Petitioners objected to the election returns from certain precincts in 6 municipalities in Maguindanao. From adverse rulings of the Maguindanao Provincial Board of Canvassers, petitioners appealed to the Comelec. They alleged that in some precincts, the "number of votes counted" exceeded the number of registered voters. Also, a shooting

war occurred between the MNLF and MILF so that no elections were conducted in such barangays, but that notwithstanding, the returns from those barangays showed "a very high percentage of voting." The Comelec Second Division dismissed petitioner's appeal. The Comelec En Banc sustained the dismissal Petition In the present consolidated petitions, the Court will determine whether the Comelec En Banc committed grave abuse of discretion in the above cases.

HELD: No necessity to apply the Lagumbay doctrine.

1. Respondents Candao and Loong have demonstrated that even if their votes embraced in the contested election returns from the provinces of Sulu and Tawi-Tawi are nullified as requested by petitioners, such nullification will not affect the vote of the respondents. Hence, there is no need to pass upon and resolve the central issue raised by petitioners - whether or not the Lagumbay doctrine of "statistical improbability" should be expanded to apply to election returns differing from the specific factual situation dealt with in Lagumbay. In the cases at bar, whatever conclusion the Court might have reached on this issue would merely constitute dictum, considering that even if the Court were to nullify all the returns objected to by petitioners on grounds of "statistical improbability", respondents Candao and Loong would still show a very substantial margin over the total votes of petitioner. Pre-proclamation controversies shall be resolved in summary proceedings. 2. The Court has also taken particular account of the need for speedy resolution of these cases, considering the length of time which has gone by since the election was held last 17 February 1990 without the winning candidates for Regional Governor and Regional Vice-Governor being proclaimed. The public policy involved in the rule that pre-proclamation controversies shall be resolved in summary proceedings, is very real and insistent. The public interest requires that the position for the filling of which the election was held should be filled as promptly as possible, even if the proclamation of the winning candidates be provisional in nature, in the sense that such would be subject to the results of the election protest or protests that may be expected to be filed. Remedy of petitioners 3. Petitioners' principal remedy is to file election protests before the Comelec (Article IX [C] [2] [2], 1987 Constitution) - and there to litigate all the issues raised by them in as much detail as they might deem

ELECTION PROTEST 48. VIOLAGO V. COMELEC GR No. 194143 October 4, 2011 FACTS: Petitioner and private respondent were candidates for the mayoralty race during the May 10, 2010 elections in the City of Meycauayan, Bulacan. Private respondent was proclaimed the winner. Thus, petitioner filed a Petition with the COMELEC questioning the proclamation of private respondent on the following grounds: (1) massive vote-buying; (2) intimidation and harassment; (3) election fraud; (4) nonappreciation by the Precinct Count Optical Scan (PCOS) machines of valid votes cast during the said election; and (5) irregularities due to non-observance of the guidelines set by the COMELEC. The COMELEC 2nd Division dismissed petitioner’s protest on the ground that the latter belatedly filed his Brief in violation of the COMELEC rule on the filing of briefs. Petitioner filed a Motion for Reconsideration with the COMELEC en banc but was denied.

ISSUES: (1) Whether petitioner’s electoral protest should be dismissed. (2) Whether petitioner’s motion for reconsideration should be denied.

RULING: (1) NO Records show that the Court finds no justifiable reason why the COMELEC 2nd Division hastily dismissed petitioner’s election protest. There is no indication that the COMELEC 2nd Division made prior verification from the proper or concerned COMELEC department or official of petitioner’s allegation that he did not receive a copy of the subject Order. Fairness and prudence dictate that the COMELEC 2nd Division should have first waited for the requested certification before deciding whether or not to dismiss petitioner’s protest on technical grounds. Petitioner should not be penalized for belatedly filing his Preliminary Conference Brief. A one-day delay, as in this case, does not justify the outright dismissal of the protest based on technical grounds where there is no indication of intent to violate the rules on the part of petitioner and the reason for the violation is justifiable. (2) NO Even if the COMELEC Rules of Procedure clearly require that a motion for reconsideration should be verified, the settled rule is that the COMELEC Rules of Procedure are subject to liberal construction. Following Pacanan v. Commission on Elections, the Court, in clarifying the mandated liberal construction of election laws, held thus: It has been frequently decided, and it may be stated as a general rule recognized by all courts, that statutes providing for election contests are to be liberally construed to the end that the will of the people in the choice of public officers may not be defeated by mere technical objections. An election contest, unlike an ordinary action, is imbued with public interest since it involves 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 with respect to who shall discharge the prerogatives of the office within their gift. Moreover, it is neither fair nor just to keep in office for an uncertain period one who’s right to it is under suspicion. It is imperative that his claim be immediately cleared not only for the benefit of the winner but for the sake of public interest, which can only be achieved by brushing aside technicalities of procedure which protract and delay the trial of an ordinary action.

49. CAGAS V. COMELEC (REYES) 50. CAYETANO V. COMELEC G.R. No. 193846 April 12, 2011 FACTS: In the automated national and local elections held on May 10, 2010, Petitioner Cayetano and Respondent Tinga were candidates for the position of Mayor of Taguig City. Cayetano was proclaimed the winner thereof, receiving a total of Ninety-Five Thousand Eight Hundred Sixty-Five (95,865) votes as against the Ninety-Three Thousand Four Hundred Forty-Five (93,445) votes received by private respondent. Consequently, Tinga filed an Election Protest against Cayetano before the COMELEC which listed election frauds and irregularities allegedly committed by Cayeteno resulting to the latter’s win as Mayor of Taguig City and claiming that that he is the actual winner of the mayoralty elections in Taguig City. Cayetano filed her Answer with Counter-Protest and Counterclaim and raised, among others, the affirmative defense of insufficiency in form and content of the Election Protest and prayed for the immediate dismissal thereof. The COMELEC then issued the assailed Preliminary Conference Order finding the protest filed by Tinga and the counter-protest filed by Cayetano to be sufficient in form and substance thereby denying Cayetano’s affirmative defense of insufficiency in form and substance of the protest filed by Tinga. Cayetano filed a Motion for Reconsideration of the Preliminary Conference Order relative to the denial of her affirmative defenses and Tinga filed a Comment and Opposition thereto. Consequently, the COMELEC issued the second assailed Order denying petitioner’s Motion for Reconsideration, hence, the Petition raising the issue on whether the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in refusing to dismiss the protest of private respondent for insufficiency in form and content. While Tinga refuted the allegations of Cayetano and countered that the petition failed to demonstrate grave abuse of discretion, he, raised the procedural infirmity in the instant petition, that is the power of the Court to review decisions of the COMELEC under Section 3, Article IX-C of the Constitution, pursuant to the leading case of Repol v. COMELEC. ISSUE: Whether or not the Supreme Court has jurisdiction to review an order or final resolution of a division of the COMELEC? HELD: NO. The final order of the COMELEC (Second Division) denying the affirmative defenses of petitioner cannot be questioned before the Court even via a petition for certiorari. A motion to reconsider a decision, resolution, order, or ruling of a COMELEC Division shall be elevated to the COMELEC En Banc as stated Section 3, Article IX-C of the 1987 Constitution. However, a motion to reconsider an interlocutory order of a COMELEC Division shall be resolved by the division which issued the interlocutory order, except when all the members of the division decide to refer the matter to the COMELEC En Banc.

Plainly, the Court has no jurisdiction to review an order, whether final or interlocutory, even a final resolution of a division of the COMELEC. Stated otherwise, the Court can only review via certiorari a FINAL decision, order, or ruling of the COMELEC en banc in accordance with Section 7, Article IX-A of the Constitution. As stated in Soriano, “the general rule is that a decision or an order of a COMELEC Division cannot be elevated directly to this Court through a special civil action for certiorari.” True, the aforestated rule admits of exceptions as when the issuance of the assailed interlocutory order is a patent nullity because of the absence of jurisdiction to issue the same or where the commission of grave abuse of discretion is apparent on its face. Unfortunately for petitioner, none of the circumstances permitting an exception to the rule occurs in this instance. PETITION DISMISSED.

QUO WARRANTO 51. VELASCO V. BELMONTE G.R. No. 211140 January 12, 2016

FACTS: Before this Court is a Petition for Mandamus filed under Rule 65 of the Rules of Court,as amend ed, by Lord Allan Jay Q. Velasco (Velasco) against Hon. Feliciano R.Belmonte, Jr. (Speaker Belmonte, Jr.), Speaker, House of Representatives, Hon.Marilyn B. BaruaYap (Sec. Gen. Baru aYap ), Secretary General, House ofRepresentatives, and Hon. Regina Ongsiako Reyes (Reyes), Repr esentative, LoneDistrict of the Province of Marinduque .Velasco contended that he must be proclaimed because of the COMLEC resolution thatReyes COC is null and void and thus he must be proclaimed to be the winner of thecongressional district of Marinduque. On the other hand, Reyes contended that a petition for quo warranto must be filedbefore HRET to settle the dispute who among them should be the representative ofCongressional district of Marindu que and determine the qualification of Reyes.

ISSUE:Whether or not the petition for Mandamus is correctly filed by Velasco?

RULING: Yes, petition for Manadamus is correctly filed by Velasco.The difference between a ministerial a nd discretionary act has long been established. Apurely ministerial act or duty is one which an officer or tribunal performs in a given stateof facts, in a prescribed manner, in obedience to the mandate of a legal authority,without regard to or the exercise of his own judgment upon the propriety or improprietyof th e act done. If the law imposes a duty upon a public officer and gives him the right todecide how or when the duty shall be performed, such duty is discretionary and notministerial. The duty is ministerial only w hen the discharge of the same requires neitherthe exercise of official discretion or judgment.

52. VILALMOR V. COMELEC G.R. NO. 169865 FACTS: On May 13, 2004, petitioner Virginio Villamor was proclaimed as mayor of Carmen, Cebu, by the Municipal Board of Canvassers (MBC) in the elections held on May 10, 2004 over his opponent, respondent Amytis De Dios-Batao. On May 17, 2004, respondent filed a petition to annul the proclamation of petitioner alleging as grounds the illegal composition of the MBC and its proceedings Subsequently, or on May 24, 2004, respondent filed an election protest with the Regional Trial Court of Danao City. Petitioner filed his Answer to the Petition with Counter Protest on June 7, 2004. However, in its Order dated June 24, 2004, the trial court dismissed the election protest for lack of jurisdiction because it was filed one-day late. Under Section 3, Rule 35 of the COMELEC Rules of Procedure, an election protest should be filed within 10 days from the date of proclamation of the results of the election. Since petitioner was proclaimed on May 13, 2004, respondent had until May 23, 2004 to file an election protest. However, respondent filed the same only on May 24, 2004, thus, it was dismissed by the trial court in an Order dated June 24, 2004. A Motion for Reconsideration was filed by the respondent which was granted by the trial court because it found that the election protest was actually filed on time. Since the last day to file the protest fell on May 23, 2004 which was a Sunday, thus, under Section 1, Rule 22 of the Rules of Court, the time should not run until the next working day which was May 24, 2004. Section 5, Rule 135 of the Rules of Court gives the courts inherent power to amend and control its processes and orders to conform with law and justice. Petitioner appealed the Order granting respondents motion for reconsideration to the COMELEC. The Second Division of the COMELEC dismissed the appeal for lack of merit. On August 5, 2005, the COMELEC En Banc denied petitioners motion for reconsideration. In the meantime, the Second Division of the COMELEC issued on May 9, 2005 a Resolution which is the petition to annul the proclamation of petitioner. Hence, this petition.

ISSUES: (1) whether the trial court can act on a motion for reconsideration in an election protest (2) whether the trial court prematurely admitted respondents election protest pending a preproclamation controversy.

HELD: The court granted the petition. Anent the first issue, petitioner asserts that a motion for reconsideration of the election protest filed by respondent was a prohibited pleading thus its filing did not toll the running of the period to appeal. Consequently, when the latter failed to appeal within five days from the June 24, 2004 Order of the trial court, the dismissal of the election protest became final. On the other hand, respondent alleges that a motion for reconsideration is not a prohibited pleading and claims that even if the motion was not filed, the trial court could reinstate the petition motu proprio before the said order became final. The rules in ordinary civil procedure do not apply in election cases except by analogy or in a suppletory character and whenever practicable and convenient. Section 256 of the Omnibus Election

Code and Section 19, Rule 35 of the COMELEC Rules of Procedure clearly state that no motion for reconsideration should be entertained. Thus, there is no room to apply the rules of ordinary civil procedure suppletorily. Nor can resort be made by the trial court to Section 5(g) of Rule 135 of the Rules of Court to sustain its actions. The trial court did not conform to law and justice when it granted the motion for reconsideration which is a prohibited pleading. With respect to the 2nd issue first, as a general rule, the proper remedy after the proclamation of the winning candidate for the position contested would be to file a regular election protest or a petition for quo warranto. The filing of an election protest or a petition for quo warranto precludes the subsequent filing of a pre-proclamation controversy or amounts to the abandonment of one earlier filed, thus depriving the COMELEC of the authority to inquire into and pass upon the title of the protestee or the validity of his proclamation. The reason is that once the competent tribunal has acquired jurisdiction of an election protest or a petition forquo warranto, all questions relative thereto will have to be decided in the case itself and not in another proceeding. This procedure will prevent confusion and conflict of authority. Moreover, not all actions seeking the annulment of proclamation suspend the running of the period for filing an election protest or a petition for quo warranto. For it is not the relief prayed for which distinguishes actions under 248 from an election protest or quo warranto proceedings, but the grounds on which they are based. In the case at bar, respondents petition to annul the proclamation rested mainly on the alleged illegal composition of the municipal board of canvassers and its proceedings which is an issue that may be properly raised in a pre-proclamation controversy. Under paragraph (b) of Section 5 of Rule 27 of the COMELEC Rules of Procedure, if the petition involves the illegal composition of the board of canvassers, it must be filed immediately when the board begins to act as such, or at the time of the appointment of the member whose capacity to sit as such is objected to if it comes after the canvassing of the board, or immediately at the point where the proceedings are or begin to be illegal. In the instant case, respondents petition to annul petitioners proclamation based on the alleged illegal composition of the board of canvassers is a pre-proclamation controversy which should have been filed prior to petitioners proclamation. However, respondent filed the petition on May 17, 2004 only or four days after petitioners proclamation. As such, the filing of the petition to annul the proclamation of petitioner did not suspend the running of the reglementary period within which to file an election protest and inevitably, it did not suspend the latters period to file an Answer with Counter Protest. Accordingly, the subsequent filing of the election protest on May 24, 2004 by respondent amounted to the abandonment of the pre-proclamation controversy earlier filed.

53. BASARTE V. COMELEC FACTS: Petitioner Basarte and private respondent Noel Jarito were candidates for Municipal Mayor of Silvino Lobos, Northern Samar in the May 10, 2004 Synchronized National and Local Elections. Petitioner was the Lakas-CMD Party mayoralty candidate while private respondent was the candidate of the Liberal Party (Raul Daza Wing). On May 29, 2004, the members of the Municipal Board of Canvassers (MBC) canvassed the election returns from the various precincts of Silvino Lobos, Northern Samar. At around 5:30 p.m. of the same day, petitioner Basarte, through his authorized representative Atty. Anselmo S. Alvaiz IV, registered his objection to the inclusion of Election Return No. 04101444 of Precinct No. 17A, Barangay Cagda-o on the grounds that [t]he [e]lection [r]eturn is obviously tampered and the taras, words and figures contained therein for all local positions (Provl. and Municipal) have been altered and the second page for the local positions is missing. Petitioner submitted a formal offer of evidence. It was not opposed within the period provided under the COMELEC Rules of Procedure (COMELEC Rules). On June 1, 2004, the MBC of Silvino Lobos, Northern Samar denied petitioners petition to exclude the assailed election return. Its ruling reads: Inclusion of ER for mayoralty position as there were no erasures/alterations in the said position. The Chairman of the BEI had testified before the [B]oard that there was no page 2 of ER and by his testimony it was taken by the Board as BEI regular function.

The COMELEC First Division held: Contrary to the allegation of the petitioner, the Chairman of the Board of Election Inspectors of Precinct No. 17A has testified before the respondent MBC that they cannot be faulted on the alleged missing page because there was no such second page existing in the copies of the election returns when they received the same. With this explanation, and in the absence of any competent evidence to the contrary, [We] are inclined to believe and hold that what the BEIs of Precinct No. 17A did, in the light of said circumstance, should be accorded the presumption of regularity in the performance of its official duties. Likewise, after examining the contested election return, [We] agree that the same is regular and authentic on its face and does not suffer from any serious infirmities affecting its integrity that warrants its exclusion.

On September 2, 2005, public respondent COMELEC en banc, in a resolution also penned by Commissioner Borra, denied petitioners motion for reconsideration. Commissioner Mehol K. Sadain registered the lone dissent. On September 11, 2005, the MBC of Silvino Lobos, Northern Samar proclaimed Noel L. Jarito as municipal mayor after canvassing the votes cast in thirty-nine (39) precincts in the municipality and finding that Jarito obtained 2,691 votes, the highest cast for said office.

ISSUE: Whether or not the assailed en banc resolution void for having been issued in gross defiance of Section 1, Rule 4 of the COMELEC Rules and thereafter nullifying the MBC ruling and the proclamation of private respondent Jarito.

RULING: Yes. Petitioner correctly points out that the assailed COMELEC en banc Resolution violates Section 1, Rule 4 of the COMELEC Rules which states that no Member shall be the ponente of an en banc decision/resolution on a motion to reconsider a decision/resolution written by him in a Division. In Agbayani v. COMELEC, we held that a violation of this rule is a reason for the reversal of the acts of the COMELEC as COMELEC should be the first to respect and obey its own rules, if only to provide the proper example to those appearing before it and to avoid all suspicion of bias or arbitrariness in its proceedings. Factual findings of administrative bodies like the COMELEC are not infallible and will be set aside when they fail the test of arbitrariness, or upon proof of grave abuse of discretion, fraud or error of law. Thus, when they grossly misappreciate evidence of such nature as to compel a contrary conclusion, their factual findings have been reversed. In the case at bar, we agree with petitioner that respondent COMELEC disregarded some glaring facts which give rise to a prima facie showing of irregularity in the assailed election return. It is noteworthy that petitioner, in his petition before the COMELEC, raised the issue of the missing names and corresponding votes of the seven (7) candidates for Provincial Board Member. This issue, however, was never addressed by public respondent COMELEC in any of its resolutions. The only explanation for the missing page is found in the ruling of the MBC that [t]he Chairman of the BEI had testified before the [B]oard that there was no page 2 of ER. Thereafter, the COMELEC First Division and en banc stated in their resolutions that the Chairman of the Board of Election Inspectors of Precinct No. 17A has testified before the MBC to the effect that they cannot be faulted on the alleged missing page because there was no such second page existing in the copies of the election returns when they received the same. As opined by Commissioner Sadain, however, there is much to be desired from this explanation. In Lee v. COMELEC which similarly involves an election return with omitted entries, we held: Votes for an important position such as congressman do not simply vanish into thin air. Those who are mandated by law to account for such votes, if mistakenly omitted, are at least expected to give a fairly reasonable account of why and how then they have been omitted. Absent such explanation, doubt arises as to the authenticity of the returns and the manner of their preparation, specially in this case where a party watcher was allowed to take part in the preparation of the election return.

Moreover, the prevailing rule that as long as the returns appear to be authentic and duly accomplished on their face, the Board of Canvassers cannot look beyond or behind them to verify allegations of irregularities in the casting or the counting of the votes presupposes that the returns appear to be authentic and duly accomplished on their face. This principle does not apply in cases like the one at bar where there is a prima facie showing that the return is not genuine, several entries having been omitted in the assailed return. COMELECs contention that its conclusion was based on its examination of the original second copy (the COMELEC copy) of the election return is unavailing as what is being assailed is the copy of the election return that was used in the canvass the original first copy (the MBC copy). Under Section 235 of

the Omnibus Election Code, the other original copies of the assailed election return may be resorted to when the assailed election return appears to be tampered with, altered, or falsified. In the instant case, the COMELEC resorted to the original second copy despite its ruling that the questioned election return (the MBC copy) was genuine and authentic on its face. Stranger still, it does not appear that the COMELEC en banc compared the original second copy with the assailed MBC copy of the election return. The merit of petitioners arguments notwithstanding, Section 243 (d) of the Omnibus Election Code requires that for a pre-proclamation controversy to prosper, it must be shown that the election return sought to be annulled would materially affect the results of the election.