G.R. No. 104848 January 29, 1993

ANTONIO GALLARDO, ANTONIO AREVALO, CRESENCIO ECHAVES, EMMANUEL ARANAS, PALERMO SIA, RONNIE RAMBUYON, PRIMO NAVARRO, and NOEL NAVARRO, petitioners, vs.HON. SINFOROSO V. TABAMO, JR., in his capacity as Presiding Judge of Branch 28 of the Regional Trial Court of Mambajao, Camiguin, and PEDRO P. ROMUALDO, respondents.

Villarama & Cruz for petitioners.

Marciano LL. Aparte, Jr. for private respondents.

 

DAVIDE, JR., J.:

This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court. Petitioners would have Us prohibit, restrain and enjoin public respondent Sinforoso V. Tabamo, Jr., Presiding Judge of Branch 28 of the Regional Trial Court (RTC) of Mambajao, Camiguin, from continuing with the proceedings in a petition for injunction, prohibition and mandamus with a prayer for a writ of preliminary injunction and restraining order filed as a taxpayer's suit, docketed therein as Special Civil Action No. 465 and entitled "Pedro P. Romualdo, Jr. versus Gov. Antonio Gallardo, et al." Petitioners likewise seek to prohibit the enforcement of the Temporary Restraining Order (TRO), issued by the respondent Judge on 10 April 1992, on the ground that the latter acted whimsically, capriciously and without jurisdiction when he took cognizance of the case and issued the said order. It is the petitioners' thesis that the said case principally involves an alleged violation of the provisions of the Omnibus Election Code the jurisdiction over which is exclusively vested in the Commission on Elections (COMELEC). It is additionally averred that the action is completely baseless, that the private respondent is not a real party in interest and that the public respondent acted with undue haste, manifest partiality and evident bias in favor of the private respondent in issuing the TRO.

In Our Resolution of 20 April 1992, We required the respondents to comment on the petition and issued a Temporary Restraining Order directing the respondent Judge to cease and desist from implementing and enforcing the challenged Order of 10 April 1922, and from continuing with the proceedings in Special Civil Action No. 465.

At the time of the filing of both the special civil action and the instant petition, petitioner Antonio Gallardo was the incumbent Governor of the Province of Camiguin and was seeking re-election in the 11 May 1992 synchronized elections. Petitioners Antonio Arevalo, Cresencio Echaves, Emmanuel Aranas and Palermo Sia are the provincial treasurer, provincial auditor, provincial engineer and provincial budget officer of Camiguin, respectively. Their co-petitioners Ronnie Rambuyon, Primo Navarro and Noel Navarro are all government project laborers. On the other hand, the private respondent was the incumbent Congressman of the lone Congressional District of Camiguin, a candidate for the same office in the said synchronized elections and the Regional Chairman of the Laban ng Demokratikong Pilipino (LDP) in Region X.

The antecedents of this case are not complicated.

On 10 April 1992, private respondent filed his Petition 1 (Special Civil Action No. 465) before the court a quoagainst petitioners Gallardo, Arevalo, Echaves, Aranas and Sia to prohibit and restrain them from pursuing or prosecuting certain public works projects; from releasing, disbursing and/or spending any public funds for such projects; and from issuing, using or availing of treasury warrants or any device for the future delivery of money, goods and other things of value chargeable against public funds in connection with the said projects as (1) said projects were undertaken in violation of the 45-day ban on public works imposed by the Omnibus Election Code (Batas Pambansa Blg. 881) because although they were initiated a few days before 27 March 1992, the date the ban took effect, they were not covered by detailed engineering plans, specifications or a program of work which are preconditions for the commencement of any public works project; hence, they could not have been lawfully and validly undertaken; (2) the hiring of hundreds of laborers in the different projects

continues unabated in flagrant violation of paragraphs (a), (b), (v) and (w), Section 261 of the Omnibus Election Code; (3) the projects were undertaken in violation of the provisions of the Local Government Code 2 governing the use and expenditure of the twenty percent (20%) development fund of the Province of Camiguin; (4) these projects, which are "Locally-Funded", were pursued without the requisite approval of the provincial budget by the Regional Office of Budget and Management as required by Section 326 of the Local Government Code; (5) some of the projects which are "Foreign-Assisted" and funded by the Spanish Assistance for Integrated Livelihood Program (SAIL) lack the required building permits and are without any relevance to those livelihood projects envisioned by the SAIL; and (6) more importantly, as alleged in paragraph VII of his Petition:  3

. . . the illegal prosecution of these public work projects requiring massive outlay of public funds during this election period has been and is being done maliciously and intentionally for the purpose of corrupting the voters and inducing them to support the candidacy of Respondent Gallardo and his candidates in the coming May 11, 1992 election.

In support of his prayer for a restraining order to be issued upon the filing of the petition and a writ of preliminary injunction immediately thereafter, herein private respondent alleges in paragraph XV of his Petition:

That unless the illegal acts of Respondents are enjoined or restrained immediately first by the issuance of the restraining order upon the filing of this Petition and immediately after that a Writ of Preliminary Injunction, great or irreparable loss and injury shall be caused not only to Petitioner himself, as a candidate and as a taxpayer, but also to the entire LDP slate of candidates, whose supporters are being corrupted and illegally induced to vote for Respondent Antonio A. Gallardo and his candidates in consideration of their employment in these projects, but (sic) most of all the greatest and most irreparable loss, damage and injury, in terms of wanton, irresponsible, excessive, abusive and flagrant waste of public money, is now being caused and shall continue to be caused, primarily and principally to the sixty-thousand or more taxpayers of the Province of Camiguin, whom Petitioner represents as Congressman and whose interests Petitioner is sworn to uphold, promote and protect. 4

The questioned projects are classified into two (2) categories: (a ) those that are Locally-Funded, consisting of twenty-nine (29) different projects for the maintenance or concreting of various roads, the rehabilitation of the Katibawasan Falls and the construction of the Capitol Building, and (b) those designated as Foreign-Assisted, consisting of fifteen (15) projects which include the construction of the Human Resource Development Center, various Day Care cum Production Centers and waterworks systems; the extension and renovation of various buildings; the acquisition of hospital and laboratory equipment; and the rehabilitation of office and equipment.  5

On the same day that the private respondent filed his petition, public respondent Judge issued the questioned TRO, 6 the pertinent portion of which reads:

It appearing from the verified petition in this case that great and irreparable damage and/or injuryshall be caused to the petitioner as candidate and taxpayer, such damage and injury taking the form and shape occasioned by the alleged wanton, excessive, abusive and flagrant waste of public money, before the matter can be heard on notice, the respondents are hereby Temporarily Restrained from pursuing or prosecuting the projects itemized in Annexes "A" and "A-1" of the petition; from releasing, disbursing and/or spending any public funds for such projects; from issuing, using or availing of treasury warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public funds in connection with said projects. (Emphasis supplied).

In the same order, the public respondent directed the petitioners to file their Answer within ten (10) days from receipt of notice and set the hearing on the application for the issuance of the writ of preliminary injunction for 24 April 1992. Instead of filing the Answer, the petitioners filed the instant special civil action for certiorari and prohibition, with a prayer for a writ of preliminary injunction and/or temporary restraining order, alleging as grounds therefor the following:

I

PUBLIC RESPONDENT HAS NO JURISDICTION OVER SPECIAL CIVIL ACTION NO. 465, BEING (sic) A SUIT INTENDED TO ENJOIN AN ALLEGED VIOLATION OF THE OMNIBUS ELECTION CODE.

II

REGIONAL TRIAL COURT'S JURISDICTION IS LIMITED TO CRIMINAL ACTIONS FOR VIOLATION OF THE OMNIBUS ELECTION CODE.

III

THE REGIONAL TRIAL COURT HAS NO JURISDICTION TO TAKE COGNIZANCE OF COMPLAINTS/PETITION BASED ON ELECTION OFFENSES PRIOR TO THE CONDUCT OF PRELIMINARY INVESTIGATION BY THE COMMISSION ON ELECTIONS; FURTHER, PRIVATE RESPONDENT HAS NO RIGHT TO FILE SPECIAL CIVIL ACTION NO. 465 SINCE THE AUTHORITY TO PROSECUTE ELECTION OFFENSES BELONGS TO THE COMMISSION ON ELECTIONS.

IV

PRIVATE RESPONDENT FAILED TO EXHAUST ALL HIS ADMINISTRATIVE REMEDIES

V

THE PETITION DATED 09 APRIL 1992 FILED WITH PUBLIC RESPONDENT IS COMPLETELY BASELESS SINCE:

A. THE PUBLIC WORKS PROJECTS BEING UNDERTAKEN BY PETITIONERS ARE EXEMPTED FROM THE PUBLIC WORKS BAN ENFORCED BY THE COMELEC.

B. THE PUBLIC WORKS PROJECTS WERE COMMENCED ONLY AFTER APPROVAL OF THE DETAILED ENGINEERING PLANS AND SPECIFICATIONS AND PROGRAM OF WORK.

C. THE PUBLIC WORKS PROJECTS WERE PROPERLY SUPPORTED BY A BUDGET DULY PASSED AND APPROVED BY THE SANGGUNIANG PANLALAWIGAN.

D. THE DEVELOPMENT FUND MAY VALIDLY BE USED TO FINANCE THE MAINTENANCE OF PROVINCIAL ROADS.

VI

THE TAXPAYER'S SUIT FILED BY PRIVATE RESPONDENT IS IMPROPER SINCE HE IS NOT A REAL PARTY IN INTEREST.

VII

THE PUBLIC RESPONDENT ACTED WITH UNDUE HASTE, MANIFEST PARTIALITY AND EVIDENT BIAS IN FAVOR OF PRIVATE RESPONDENT AND AGAINST PETITIONERS IN ISSUING THE TEMPORARY RESTRAINING ORDER. 7

As adverted to earlier, We issued a Temporary Restraining Order on 20 April 1992.

After considering the allegations, issues and arguments adduced in the Petition, the Comment thereto and the Reply to the Comment, We gave due course 8 to this Petition and required the parties to submit their respective Memoranda which they complied with.

The main issue in this case is whether or not the trial court has jurisdiction over the subject matter of Special Civil Action No. 465. The material operative facts alleged in the petition therein inexorably link the private respondent's principal grievance to alleged violations of paragraphs (a), (b), (v) and (w), Section 261 of the Omnibus Election Code (Batas Pambansa Blg. 881). There is particular emphasis on the last two (2) paragraphs which read:

Sec. 261. Prohibited Acts. — The following shall be guilty of an election offense:

(a) Vote-buying and vote-selling. —

xxx xxx xxx

(b) Conspiracy to bribe voters. —

xxx xxx xxx

(v) Prohibition against release, disbursement or expenditure of public funds. Any public official or employee including barangay officials and those of government-owned or controlled corporations and their subsidiaries, who, during forty-five days before a regular election and thirty days before a special election, releases, disburses or expends any public funds for:

(1) Any and all kinds of public works, except the following:

xxx xxx xxx

(w) Prohibition against construction of public works, delivery of materials for public works and issuance of treasury warrants and similar devices. — During the period of forty-five days preceding a regular election and thirty days before a special election, any person who (a) undertakes the construction of any public works, except for projects or works exempted in the preceding paragraph; or (b) issues, uses or avails of treasury warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public funds.

Private respondent likewise focuses on Resolution No. 2332 (not 2322 as erroneously stated in page 10 of his Petition) of the COMELEC, promulgated on 2 January 1992, implementing the aforesaid paragraphs (v) and (w) of Section 261 and fixing the duration of the 45-day ban for purposes of the synchronized elections from 27 March 1992 to 11 May 1922.

Essentially, therefore, Civil Case No. 465 before the trial court is for the enforcement of laws involving the conduct of elections; corollarily, the issue that is logically provoked is whether or not the trial court has jurisdiction over the same. If the respondent Judge had only hearkened to this Court's teaching about a quarter of a century earlier, this case would not have reached Us and taken away from more deserving cases so much precious time.

Zaldivar vs. Estenzo, 9 decided by this Court on 3 May 1968, had squarely resolved the issue above posed. Speaking through then Associate Justice Enrique Fernando (who later became Chief Justice), this Court explicitly ruled that considering that the Commission on Elections is vested by the Constitution with exclusive charge of the enforcement and administration of all laws relative to the conduct of elections, the assumption of jurisdiction by the trial court over a case involving the enforcement of the Election Code "is at war with the plain

constitutional command, the implementing statutory provisions, and the hospitable scope afforded such grant of authority so clear and unmistakable in recent decisions." 10

Said case was decided under the aegis of the 1935 Constitution and R.A. No. 180, otherwise known as the Revised Election Code, which took effect on 21 June 1947. The present Constitution and extant election laws have further strengthened the foundation for the above doctrine; there can be no doubt that the present COMELEC has broader powers than its predecessors. While under the 1935 Constitution it had "exclusive charge of the enforcement and administration of all laws relative to the conduct of elections," exercised "all other functions . . . conferred upon it by law" 11 and had the power to deputize all law enforcement agencies and instrumentalities of the Government for the purpose of insuring free, orderly and honest elections, 12 and under the 1973 Constitution it had, inter alia, the power (a) "[E]nforce and administer all laws relative to the conduct of elections" 13 (b) "[D]eputize, with the consent or at the instance of the Prime Minister, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the purpose of ensuring free, orderly, and honest elections," 14 and (c) "[P]erform such other functions as may be provided by law," 15 it was not expressly vested with the power to promulgate regulations relative to the conduct of an election. That power could only originate from a special law enacted by Congress; this is the necessary implication of the above constitutional provision authorizing the Commission to "[P]erform such other functions as may be provided by law."

The present Constitution, however, implicitly grants the Commission the power to promulgate such rules and regulations. The pertinent portion of Section 2 of Article IX-C thereof reads as follows:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. (Emphasis supplied).

xxx xxx xxx

The word regulations is not found in either the 1935 or 1973 Constitutions. It is thus clear that its incorporation into the present Constitution took into account the Commission's power under the Omnibus Election Code (Batas Pambansa Blg. 881), which was already in force when the said Constitution was drafted and ratified, to:

xxx xxx xxx

Promulgate rules and regulations implementing the provisions of this Code or other laws which the Commission is required to enforce and administer, . . . . 16

Hence, the present Constitution upgraded to a constitutional status the aforesaid statutory authority to grant the Commission broader and more flexible powers to effectively perform its duties and to insulate it further from legislative intrusions. Doubtless, if its rule-making power is made to depend on statutes, Congress may withdraw the same at any time. Indeed, the present Constitution envisions a truly independent Commission on Elections committed to ensure free, orderly, honest, peaceful and credible elections, 17 and to serve as the guardian of the people's sacred right of suffrage — the citizenry's vital weapon in effecting a peaceful change of government and in achieving and promoting political stability.

Additionally, by statutory mandate, the present Commission on Elections possesses, inter alia, the following powers:

l) Exercise direct and immediate supervision and control over national and local officials or employees, including members of any national or local law enforcement agency and instrumentality of the government required by law to perform duties relative to the conduct of elections. In addition, it may authorize CMT cadets eighteen years of age and above to act as its deputies for the purpose of enforcing its orders.

The Commission may relieve any officer or employee referred to in the preceding paragraph from the performance of his duties relating to electoral processes who violates the election law or fails to comply with its instructions, orders, decisions or rulings, and appoint his substitute. Upon recommendation of the Commission, the corresponding proper authority shall suspend or remove from office any or all of such officers or employees who may, after due process, be found guilty of such violation or failure. 18

2) To stop any illegal election activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false election propaganda, after due notice and hearing. 19

Needless to say, the acts sought to be restrained in Special Civil Action No. 465 before the court a quo are matters falling within the exclusive jurisdiction of the Commission. As a matter of fact, the specific allegations in the petition therein of violations of paragraphs (a), (b), (v) and (w), Section 261 of the Omnibus Election Code provide a stronger basis and reason for the application of the Zaldivar doctrine. At most, the facts in the latter case do not illustrate as clearly the announced doctrine as the facts in this case do. In Zaldivar, no specific provision of the Revised Election Code then in force was alleged to have been violated. What was sought to be enjoined was the alleged wielding by Zaldivar, then a municipal mayor, of the power, by virtue of his office, to appoint special policemen or agents to terrorize voters into supporting the congressional candidate of his choice. In holding that the then Court of First Instance did not have jurisdiction over the case, this Court considered the constitutional power of the Commission on Elections to have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections and to exercise all other functions which may be conferred by law. We likewise relied on the provisions of the Revised Election Code vesting upon the COMELEC (a) direct and immediate supervision over municipal, city and provincial officials designated by law to perform duties relative to the conduct of elections and (b) authority to suspend them from the performance of such duties for failure to comply with its instructions, orders, decisions or rulings and recommend to the President their removal if found guilty of non-feasance, malfeasance or misfeasance in connection with the performance of their duties relative to the conduct of elections. 20

Under the present law, however, except in case of urgent need, the appointment or hiring of new employees or the creation or filling up of new positions in any government office, agency or instrumentality, whether national or local, including government-owned or controlled corporations, is banned during the period of forty-five (45) days before a regular election and thirty (30) days before a special election if made without the prior authority of the Commission on Elections. A violation thereof constitutes an election offense. 21 Then too, no less than the present Constitution — and not just the Election Law as was the case at the time of Zaldivar — expressly provides that the Commission may "[R]ecommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision." 22

Moreover, the present Constitution also invests the Commission with the power to "investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices." 23

It may thus be said without fear of contradiction that this vast array of powers and functions now enjoyed by the Commission under the present Constitution provides a stronger foundation for, and adds vigor and vitality to, theZaldivar doctrine.

The rationale of the said doctrine needs to be stressed here so that henceforth, no judge will lose his bearings when confronted with the same issue. Otherwise, he should be held to account for either the sheer ignorance of the law or the callous disregard of pronouncements by this Court to accommodate partisan political feelings. We declared in the said case:

The question may be asked: Why should not the judiciary be aco-participant in this particular instance of enforcing the Election Code as its authority was invoked? The obvious answer is the literal language of the Constitution which empowers the Commission on Elections to "have exclusive charge of the enforcement and administration of all laws relative to the conduct of the elections." Moreover, as was

so aptly observed by the then Justice Frankfurter, although the situation confronting the United States Supreme Court was of a different character: "Nothing is clearer than that this controversy concerns matters that brings courts into immediate and active relations with party contests. From the determination of such issues this Court has traditionally held aloof. It is hostile to a democratic system to involve the judiciary in the politics of the people. And it is not less pernicious if such judicial intervention in an essentially political contest be dressed up in the abstract phrases of the law." 24 Then, too, reference by analogy may be made to the principle that sustains Albano v. Arranz. For even without the express constitutional prescription that only this Court may review the decisions, orders and rulings of the Commission on Elections, it is easy to understand why no inference whatsoever with the performance of the Commission on Elections of its functions should be allowed unless emanating from this Court. The observation of Acting Chief Justice J.B.L. Reyes in Albano v. Arranz, 25 while not precisely in point, indicates the proper approach. Thus: "It is easy to realize the chaos that would ensue if the Court of First Instance of each and every province were to arrogate unto itself the power to disregard, suspend, or contradict any order of the Commission on Elections; that constitutional body would be speedily reduced to impotence."

This conclusion finds' support from a consideration of weight and influence. What happened in this case could be repeated elsewhere. It is not improbable that courts of first instance would be resorted to by leaders of candidates or political factions entertaining the belief whether rightly or wrongly that local officials would employ all the power at their command to assure the victory of their candidates. Even if greater care and circumspection, than did exist in this case, would be employed by judges thus appealed to, it is not unlikely that the shadow of suspicion as to alleged partisanship would fall on their actuations, whichever way the matter before them is decided. It is imperative that the faith in the impartiality of the judiciary be preserved unimpaired. Whenever, therefore, the fear may be plausibly entertained that an assumption of jurisdiction would lead to a lessening of the undiminished trust that should be reposed in the courts and the absence of authority discernible the from the wording of applicable statutory provisions and the trend of judicial decisions, even if no constitutional mandate as that present in this case could be relied upon, there should be no hesitancy in declining to act. 26

The foregoing disquisitions should have rendered unnecessary the resolution of the remaining collateral issues raised in this petition. In view, however, of their importance, they will be dealt with in a general way.

It is not true that, as contended by the petitioners, the jurisdiction of the Regional Trial Court under the election laws is limited to criminal actions for violations of the Omnibus Election Code. The Constitution itself grants to it exclusive original jurisdiction over contests involving elective municipal officials. 27 Neither can We agree with the petitioners' assertion that the Special Civil Action filed in the court below involves the prosecution of election offenses; the said action seeks some reliefs incident to or in connection with alleged election offenses; specifically, what is sought is the prevention of the further commission of these offenses which, by their alleged nature, are continuing.

There is as well no merit in the petitioners' claim that the private respondent has no legal standing to initiate the filing of a complaint for a violation of the Omnibus Election Code. There is nothing in the law to prevent any citizen from exposing the commission of an election offense and from filing a complaint in connection therewith. On the contrary, under the COMELEC Rules of Procedure, initiation of complaints for election offenses may be done motu propio by the Commission on Elections or upon written complaint by any citizen, candidate or registered political party or organization under the party-list system or any of the accredited citizens arms of the Commission. 28However, such written complaints should be filed with the "Law Department of the Commission; or with the offices of the Election Registrars, Provincial Election Supervisors or Regional Election Directors, or the State Prosecutor, Provincial Fiscal or City Fiscal." 29 As earlier intimated, the private respondent was not seriously concerned with the criminal aspect of his alleged grievances. He merely sought a stoppage of the public works projects because of their alleged adverse effect on his candidacy. Indeed, while he may have had

reason to fear and may have even done the right thing, he committed a serious procedural misstep and invoked the wrong authority.

We have, therefore, no alternative but to grant this petition on the basis Our resolution of the principal issue. Nevertheless, it must be strongly emphasized that in so holding that the trial court has no jurisdiction over the subject matter of Special Civil Action No. 465, We are not to be understood as approving of the acts complained of by the private respondent. If his charges for the violation of paragraphs (a), (b), (v) and (w), Section 261 of the Omnibus Election Code are true, then no one should be spared from the full force of the law. No government official should flout laws designed to ensure the holding of free, orderly, honest, peaceful and credible elections or make a mockery of our electoral processes. The bitter lessons of the past have shown that only elections of that nature or character can guarantee a peaceful and orderly change. It is then his duty to respect, preserve and enhance an institution which is vital in any democratic society.

WHEREFORE, the instant Petition is hereby GRANTED. The challenged order of respondent Judge of 10 April 1992 in Special Civil Action No. 465 is SET ASIDE and said Civil Case is hereby ordered DISMISSED, without prejudice on the part of the private respondent to file, if he is so minded, the appropriate complaint for an election offense pursuant to the COMELEC Rules of Procedure.

Costs against the private respondent.

SO ORDERED.

Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Campos, Jr., JJ., concur.

G.R. No. 134932           February 18, 2000

VITO BESO, petitioner, vs.RITA ABALLE and HON. ROBERTO A. NAVIDAD, Acting Presiding Judge, Branch 31, Regional Trial Court of Calbayog City, respondents.

DAVIDE, JR., C.J.:

On 15 December 1999 we resolved to give due course to this petition for certiorari and to decide it on the basis of the pleadings filed by the parties.

The antecedents are not disputed.

Petitioner Vito Beso (hereafter BESO) and private respondent Rita Aballe (hereafter ABALLE) were candidates for the position of Barangay Captain of Barangay Carayman, Calbayog City, in the barangay elections of 12 May 1997.

In the canvass of the returns of the four precincts of Barangay Carayman, BESO was credited with four hundred ninety-five (495) votes, while ABALLE obtained four hundred ninety-six (496) votes. The latter was thus proclaimed the winning candidate.

BESO seasonably filed a protest with the Municipal Trial Court of Calbayog City (hereafter MTCC). The case was docketed as Election Protest No. 130.

After due proceedings, the MTCC, per Judge Filemon A. Tandico, Jr., promulgated on 20 January 1998 a decision (rollo, 28), dated 13 January 1998, in favor of BESO. The decretal portion thereof reads as follows:

ACCORDINGLY, the proclamation made by the Board of Canvassers concerned should be, as it is hereby, reversed and another entered declaring Protestant VITO A. BESO, the duly elected Punong

Barangay of Brgy. Carayman, Calbayog City, in the elections of 12 May 1997, with the right to assume office as soon as judgment becomes final. No pronouncement as to costs.

After this decision becomes final, let a copy thereof be furnished the Commission on Elections, the Department of Interior and Local Government and the Commission on Audit.

SO ORDERED (id., 39).

On 20 January 1998 ABALLE filed a Notice of Appeal (id., 40) manifesting therein that she is appealing from the decision, "to the Regional Trial Court, Calbayog City." It likewise appears that on 22 January 1998, ABALLE filed a Notice of Appeal (id., 41), indicating therein that she was appealing from the decision "to the COMMISSION ON ELECTIONS, MANILA." On the same date ABALLE purchased postal money orders in the amounts of P500 and P20 in payment of the appeal fees and filed them with the MTCC, which the latter transmitted to the Commission on Elections. However, in the letter of 4 September 1998 (id., 146), Records Officer IV Miguel T. Varquez, Jr. of the Electoral Contests Adjudication Department of the Commission on Elections returned these money orders for having become stale and directed ABALLE to replace them within three days.

On 26 January 1998, BESO filed with the MTCC a motion for execution pending appeal dated 23 January 1998 (id., 45).

ABALLE sought to inhibit judge Filemon A. Tandinco, Jr. of MTCC (id., 48); however, the motion was denied in the order of 2 March 1998 (id., 67).

On 5 March 1998, the MTCC, handed down a Resolution (id., 69) granting the motion for execution pending appeal and decreeing as follows:

WHEREFORE and by the foregoing applicable Laws, Rules and Jurisprudence hereby upholds and approve the Motion for Execution pending appeal. Further, finding good reasons hereof directs and orders immediate execution of the Decision of this Court promulgated on January 20, 1998, and as prayed for install Vito Beso as the duly elected Chairman of Barangay Carayman, Calbayog City, to take his oath of Oath of Office assume as such Chairman after he shall have filed a bond in the amount of ONE HUNDRED THOUSAND (P100,000.00) in such sufficient sureties subject to approval by this Court.

Furnish copy of this Resolution: The City Mayor, Calbayog City, The Secretary, Department of Interior and Local Government, Metro Manila, The Commission on Elections, Manila and Calbayog City, Atty. Eduardo Tibo and Atty. Artermio Apostol.

ABALLE filed a motion to reconsider (id., 77) the Resolution, which the MTCC denied in its Resolution of 21 April 1998 (id., 87).

On 24 April 1998, ABALLE filed with the Regional Trial Court of Calbayog City (hereafter RTC) a special civil action for certiorari and prohibition, with an urgent prayer for the issuance of a temporary restraining order or writ of preliminary injunction (id., 91) against MTCC Judge Tandinco, Jr. to set aside and annul the latter's order of 2 March 1998 denying the motion for inhibition; resolution of 5 March 1998 granting the motion for execution pending appeal; and the resolution of 21 April 1998 denying the motion to reconsider the resolution of 5 March 1998. BESO was impleaded as co-respondent. The case was assigned to Branch 31 of the RTC, presided over by public respondent Judge Roberto A. Navidad, and was docketed as Special Civil Action No. 98-040.

On 28 April 1998, Judge Navidad issued a Temporary Restraining Order (id., 104) restraining respondent Judge Tandinco, Jr. and all persons acting in his behalf "from enforcing the Writ of Execution Pending Appeal." The temporary restraining order was "effective within 72 hours only from its issuance."

On 28 April 1998, BESO filed a comment (id., 100) to ABALLE's petition for certiorari and prohibition alleging therein that pursuant to Section 1 of Rule 28 of the COMELEC Rules of Procedure and our decision in Relampagos v. Cumba, et al. (243 SCRA 690 [1995]), the Commission on Elections, and not the Regional Trial Court has jurisdiction over the petition. ABALLE filed a reply to the comment (id., 105).

Then, on 29 April 1998, Judge Navidad issued an Order (id., 108) directing the parties to submit their respective memoranda, after which the matter would be deemed submitted for resolution. He also issued a temporary restraining order.

BESO filed his Memorandum on 4 May 1998 (id., 109).

On 4 May 1998, Judge Navidad issued an Order extending the Temporary Restraining Order "for twenty (20) days."

On 2 June 1998 ABALLE filed her Memorandum.

On 8 June 1998, the RTC, per Judge Navidad rendered a decision (id., 123) in favor of ABALLE, disposing thus:

WHEREFORE, premises considered, the Petition is GIVEN DUE COURSE. The writ of execution pending appeal issued by the court a quo in Election Protest No. 130 is hereby SET ASIDE and VACATED while the Temporary Restraining Order issued by this Court is consequently made PERMANENT.

In support thereof, the RTC held that the MTCC already lost its jurisdiction when it issued the challenged resolutions. Under Section 3 of Rule 22 of the COMELEC Rules of Procedure, appeals to the COMELEC in election protest cases should be made within five (5) days from the promulgation of the decision. In this case, the decision of the MTCC was promulgated on 20 January 1998; ABALLE had until 25 January 1998 within which to appeal from the decision. She perfected her appeal on 22 January 1998. The motion for execution pending appeal was filed only on 26 January 1998. Consequently, the court had already lost jurisdiction to issue the writ of execution pending appeal.

BESO's motion for reconsideration (id., 127) was denied by the RTC in its Order of 14 July 1998 (id., 129).

On 28 August 1998, we received BESO's petition in this case, which he sent via registered mail on 7 August 1998. He asserts in his petition that respondent Judge Navidad acted without jurisdiction in issuing the (1) orders of: (a) 28 April 1998, granting a temporary restraining order, effective within 72 hours from its issuance, (b) 29 April 1998 granting a temporary restraining order, (c) 4 May 1998 extending the temporary restraining order for 20 days; (2) decision of 8 June 1998; and (3) order of 14 July 1998 denying the motion to reconsider the decision. BESO then prays that these orders and decision be declared null and void.

In the meantime, on 4 September 1998 the Electoral Contest Adjudication Department of the Commission on Elections (COMELEC) received the records of Election Protest No. 130 from the MTCC as a consequence of the appeal interposed by ABALLE. The COMELEC docketed the appealed case as EAC No. 95-98.

In the resolution of 7 September 1999, we required ABALLE and Judge Navidad to comment on the petition.

On 9 October 1998 we received ABALLE's comment. She narrates therein the foregoing factual antecedents up to the denial of the motion to reconsider the resolution granting the motion for execution pending appeal and added that the "entire records of Election Protest No. 130 entitled Vito Beso v. Rita Aballe including the ballot box and the exhibits presented during the trial was held in the custody of the Clerk of Court of the Municipal Trial Court in Cities, Calbayog City since January 1998 and up to August 26, 1988," which therefore, made it impractical, if not impossible, for her to file the petition for certiorari with the COMELEC.

Respondent Judge Navidad sent his comment, under heading COMPLIANCE (id., 168), on 29 October 1998. He alleges therein that the special civil action filed with his court by ABALLE was an original or independent action to remedy errors of jurisdiction committed by the MTCC, and not a continuation or part of the trial of the parties' election case.

The petition is meritorious.

Since ABALLE has appealed to the COMELEC from the decision in Election Protest Case No. 30 of the MTCC, by filing a Notice of Appeal on 22 January 1998, and submitting at the same time the postal money orders for the appeal fees, it follows that the COMELEC has primary jurisdiction on the petition for certiorari to annul the execution pending appeal granted by the MTCC. This is an issue which we resolved in Relampagos v. Cumba, et al. (243 SCRA 690 [1995]).

We ruled in Relampagos that the last paragraph of Section 50 of B.P. Blg. 697 remains in full force and effect in such cases where, under paragraph (2), Section 1 (should be Section 2) Article IX-C of the Constitution, the COMELEC has exclusive appellate jurisdiction over the election contest in question. In such cases the COMELEC has the authority to issue the extraordinary writs of certiorari, prohibition and mandamus in aid of its appellate jurisdiction. The last paragraph of Section 50 reads:

The Commission is hereby vested with exclusive authority to hear and decide petitions for certiorari, prohibition and mandamus involving election cases.

Under the second paragraph of Section 2 of Article IX-C of the Constitution, the Commission on Elections has exclusive appellate jurisdiction over, inter alia, contests involving elective barangay officials decided by trial courts of limited jurisdiction.

The contested position in this case is that of a barangay captain. The Municipal Trial Court of Calbayog City, a court of limited jurisdiction, had the exclusive original jurisdiction over the election protest, and the COMELEC has the exclusive appellate jurisdiction over such protest.

It follows then that the RTC of Calbayog City is without Jurisdiction on the petition for certiorari and prohibition which ABALLE filed to annul the execution pending appeal the MTCC had issued in the election protest case ABALLE should have gone to the COMELEC and her allegation that it was impossible for her to have invoked the power of the COMELEC to issue the writ because the records of the Election Protest No. 130 were forwarded to the COMELEC only in August 1998 merits no sympathy as certified copies of the challenged resolutions or orders could easily be obtained and attached to the petition.

Clearly respondent Judge Navidad acted without jurisdiction, and with grave abuse of discretion amounting to lack of Jurisdiction when he entertained the petition in Special Civil Action No. 98-040, issued a Temporary Restraining Order thereon and, ultimately, giving due course to the petition and deciding it on its merits by setting aside and vacating the assailed resolutions and orders of the MTCC of Calbayog City in Election Protest No. 130 and making permanent the temporary restraining order earlier issued.

Further, respondent Judge Navidad gravely abused his discretion when he extended by twenty days the 72-hour restraining order he initially issued. The second paragraph of Section 5 of Rule 5 of the 1997 Rules of Civil Procedure clearly provides that "in no case shall the total period of effectivity of the temporary restraining order exceed twenty (20) days, including the original seventy-two hours provided herein."

WHEREFORE, the instant petition is GRANTED and the challenged orders of respondent Judge Roberto A. Navidad in Special Action No. 98-040 (or 040) of Branch 31 of the Regional Trial Court of Calbayog City of 28 April 1998 granting a temporary restraining order within seventy-two hours; 29 April 1998 granting a temporary restraining order without specification of the period; 4 May 1998 extending the temporary restraining order for twenty (20) days; and the decision of 8 June 1998, as well as the order of 14 July 1998 denying the motion to reconsider the decision are hereby set aside and nullified for having been issued without jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction. 1âwphi1.nêt

Respondent Judge Roberto A. Navidad is further ordered to DISMISS Special Action No. 98-040 (or 040) within seventy-two hours (72) hours upon receipt of a copy of this decision.

Costs against private respondent.

SO ORDERED.

Puno, Kapunan, Pardo and Ynares-Santiago, JJ., concur.

G.R. No. 142907       November 29, 2000

JOSE EMMANUEL L. CARLOS, petitioner, vs.HON. ADORACION G. ANGELES, IN HER CAPACITY AS THE ACTING PRESIDING JUDGE OF THE REGIONAL TRIAL COURT IN CALOOCAN CITY (BRANCH 125) and ANTONIO M. SERAPIO, respondents.

PARDO, J.:

The Case

The case before the Court is an original special civil action for certiorari and prohibition with preliminary injunction or temporary restraining order seeking to annul the decision of the Regional Trial Court, Caloocan City, Branch 125, the dispositive portion of which reads as follows:

"WHEREFORE, premises considered, the proclamation of the Protestee, Jose Emmanuel Carlos, by the Board of Canvassers is accordingly SET ASIDE.

"The Court hereby FINDS the Protestant, ANTONIO SERAPIO, as the DULY ELECTED MAYOR OF VALENZUELA CITY.

"SO ORDERED."1

The Facts

Petitioner Jose Emmanuel L. Carlos and respondent Antonio M. Serapio were candidates for the position of mayor of the municipality of Valenzuela, Metro Manila (later converted into a City) during the May 11, 1998 elections.

On May 21, 1998, the Municipal Board of Canvassers, Valenzuela, Metro Manila proclaimed petitioner as the duly elected mayor of Valenzuela having obtained 102,688 votes, the highest number of votes in the election returns.

On June 1, 1998, respondent Antonio M. Serapio who obtained 77,270 votes, the second highest number of votes, filed with the Regional Trial Court, Valenzuela, Metro Manila, an election protest challenging the results. Due to the inhibition of all judges of the Regional Trial Court in Valenzuela, the case was ultimately assigned to the Regional Trial Court, Caloocan City, Branch 125, presided over by respondent Judge Adoracion G. Angeles.

On June 26, 1998, petitioner filed with the trial court an answer with affirmative defenses and motion to dismiss. The court denied the motion to dismiss by order dated January 14, 1999. Petitioner elevated the order to the Commission on Elections (Comelec) on petition for certiorari and prohibition,2 which, however, has remained unresolved up to this moment.

In the course of the protest, the municipal treasurer of Valenzuela, who by law has custody of the ballot boxes, collected the ballot boxes and delivered them to the Regional Trial Court, Caloocan City. The trial court conducted a pre-trial conference of the parties but it did not produce a substantial result as the parties merely paid superficial service and only agreed on the following:

1. Both parties admit their capacity to sue and be sued;

2. Both parties admit that the protestant was a candidate during the May 11, 1998 election;

3. Both parties admit that the protestee has been proclaimed as the elected mayor of Valenzuela, Metro Manila, on May 21, 1998;

4. Both parties admit that the protestee allegedly obtained 102,688 votes while the protestant obtained 77,270 votes per canvass of election returns of the Board of Canvassers.

The pre-trial was then concluded and the parties agreed to the creation of seven (7) revision committees consisting of a chairman designated by the court and two members representing the protestant and the protestee.

Meantime, on May 12, 1999, petitioner filed a consolidated motion that included a prayer for authority to photocopy all the official copies of the revision reports in the custody of the trial court. However, the trial court denied the issuance of such authorization.3 The court likewise denied a motion for reconsideration of the denial.4Then petitioner raised the denial to the COMELEC on petition for certiorari and mandamus,5 which also remains unresolved until this date.

The Revision Results

The revision of the ballots showed the following results:

(1) Per physical count of the ballots:

(a) protestant Serapio - 76,246 votes.

(b) protestee Carlos - 103,551 votes.

(2) Per revision, the court invalidated 9,697 votes of the protestant but validated 53 stray votes in his favor.

The court invalidated 19,975 votes of the protestee and validated 33 stray votes in his favor.

The final tally showed:

(a) protestant Serapio - 66,602 votes.

(b) protestee Carlos - 83,609 votes, giving the latter a winning margin of 17,007 votes.

The Trial Court's Ruling

Nevertheless, in its decision, the trial court set aside the final tally of valid votes because of its finding of "significant badges of fraud," namely:

1. The keys turned over by the City Treasurer to the court did not fit into the padlocks of the ballot boxes that had to be forcibly opened;

2. Seven (7) ballot boxes did not contain any ballot and two (2) ballot boxes out of the seven (7) ballot boxes did not contain any election returns;

3. Some schools where various precincts were located experienced brownouts during the counting of votes causing delay in the counting although there was no undue commotion or violence that occurred;

4. Some of the assigned watchers of protestant were not in their posts during the counting of votes.

On the basis of the foregoing badges of fraud, the trial court declared that there was enough pattern of fraud in the conduct of the election for mayor in Valenzuela. The court held that the fraud was attributable to the protestee who had control over the election paraphernalia and the basic services in the community such as the supply of electricity.

On April 24, 2000, the trial court rendered a judgment ruling that the perpetuation of fraud had undoubtedly suppressed the true will of the electorate of Valenzuela and substituted it with the will of the protestee. Notwithstanding the plurality of valid votes in favor of the protestee, the trial court set aside the proclamation of protestee Jose Emmanuel Carlos by the Municipal Board of Canvassers and declared protestant Antonio M. Serapio as the duly elected mayor of Valenzuela City.6

Hearing news that the protestant had won the election protest, the protestee secured a copy of the decision from the trial court on May 4, 2000. On the other hand, notice of the decision was received by the protestant on May 03, 2000.

On May 4, 2000, protestant filed with the trial court a motion for execution pending appeal.7 On May 4, 2000, the trial court gave protestee five (5) days within which to submit his comment or opposition to the motion.8

Petitioner's Appeal to Comelec

Meantime, on May 04, 2000, petitioner filed a notice of appeal from the decision of the trial court to the Commission on Elections.9

The Petition at bar

On May 8, 2000, petitioner filed the present recourse.10

Petitioner raised the following legal basis:

(1) The Supreme Court has original jurisdiction to entertain special civil actions of certiorari and prohibition;

(2) There are important reasons and compelling circumstances which justify petitioner's direct recourse to the Supreme Court;

(3) Respondent judge committed grave abuse of discretion when she declared respondent Serapio as the duly elected mayor of Valenzuela despite the fact that she found that petitioner obtained 17,007 valid votes higher than the valid votes of respondent Serapio;

(4) The assailed decision is contrary to law, based on speculations and not supported by the evidence as shown in the decision itself.11

The Issues

The issues raised are the following:

1. Whether the Supreme Court has jurisdiction to review, by petition for certiorari as a special civil action, the decision of the regional trial court in an election protest case involving an elective municipal official considering that it has no appellate jurisdiction over such decision.

2. Whether the trial court acted without jurisdiction or with grave abuse of discretion when the court set aside the proclamation of petitioner and declared respondent Serapio as the duly elected mayor of Valenzuela City despite its finding that petitioner garnered 83,609 valid votes while respondent obtained 66,602 valid votes, or a winning margin of 17,007 votes.

TRO Issued

On May 8, 2000, we issued a temporary restraining order ordering respondent court to cease and desist from further taking cognizance of Election Protest No. 14-V-98 more specifically from taking cognizance of and acting on the Motion for Execution Pending Appeal filed by respondent Serapio on May 4, 2000.12

Respondent's Position

On May 15, 2000, respondent Serapio filed his comment with omnibus motion to lift the temporary restraining order and to declare petitioner in contempt of court for violating the rule against forum shopping.13 He submitted that Comelec and not the Supreme Court has jurisdiction over the present petition for certiorari assailing the decision dated April 24, 2000 of the regional trial court. Assuming that this Court and Comelec have concurrent jurisdiction and applying the doctrine of primary jurisdiction, the Comelec has jurisdiction since petitioner has perfected his appeal therewith before the filing of the instant petition. Certiorari cannot be a substitute for an appeal; the present petition is violative of Revised Circular No. 28-91 on forum-shopping; issues raised are factual, not correctible by certiorari; and that the temporary restraining order should be lifted, the petition dismissed, and petitioner and counsel should be made to explain why they should not be punished for contempt of court.

The Court's Ruling

We find the petition impressed with merit.14

I. The Supreme Court is vested with original jurisdiction to issue writs of certiorari, prohibition and mandamus against the decision of the regional trial court in the election protest case before it, regardless of whether it has appellate jurisdiction over such decision.

Article VIII, Section 5 (1) of the 1987 Constitution provides that:

"Sec. 5. The Supreme Court shall have the following powers:

"(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, andover petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus."

xxx xxx xxx

Rule 65, Section 1 of the 1997 Rules of Civil Procedure, as amended, provides that:

"SECTION 1. Petition for certiorari.—When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46."

By Constitutional fiat, the Commission on Election (Comelec) has appellate jurisdiction over election protest cases involving elective municipal officials decided by courts of general jurisdiction, as provided for in Article IX (C), Section 2 of the 1987 Constitution:

"Sec. 2. The Commission on Elections shall exercise the following powers and functions:

"(1) x x x.

"(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction."

In like manner, the Comelec has original jurisdiction to issue writs of certiorari, prohibition and mandamus involving election cases in aid of its appellate jurisdiction.15 This point has been settled in the case of Relampagos vs. Cumba,16 where we held:

"In the face of the foregoing disquisitions, the court must, as it now does, abandon the ruling in the Garciaand Uy and Veloria cases. We now hold that the last paragraph of Section 50 of B. P. Blg. 697 providing as follows:

The Commission is vested with exclusive authority to hear and decide petitions for certiorari, prohibition and mandamus involving election cases.

remains in full force and effect but only in such cases where, under paragraph (2), Section 1, Article IX-C of the Constitution, it has exclusive appellate jurisdiction. Simply put, the COMELEC has the authority to issue the extraordinary writs of certiorari, prohibition, and mandamus only in aid of its appellate jurisdiction." (Emphasis ours).

Consequently, both the Supreme Court and Comelec have concurrent jurisdiction to issue writs of certiorari, prohibition, and mandamus over decisions of trial courts of general jurisdiction (regional trial courts) in election cases involving elective municipal officials. The Court that takes jurisdiction first shall exercise exclusive jurisdiction over the case.17

Ergo, this Court has jurisdiction over the present petition of certiorari as a special civil action expressly conferred on it and provided for in the Constitution.

Relative to the appeal that petitioner filed with the COMELEC, the same would not bar the present action as an exception to the rule because under the circumstances, appeal would not be a speedy and adequate remedy in the ordinary course of law.18 The exception is sparingly allowed in situations where the abuse of discretion is not only grave and whimsical but also palpable and patent, and the invalidity of the assailed act is shown on its face.

II. Certiorari lies. The trial court acted with grave abuse of discretion amounting to lack or excess of jurisdiction. Its decision is void.

The next question that arises is whether certiorari lies because the trial court committed a grave abuse of discretion amounting to lack or excess of jurisdiction in deciding the way it did Election Protest Case No. 14-V-98, declaring respondent Serapio as the duly "elected" mayor of Valenzuela, Metro Manila.

In this jurisdiction, an election means "the choice or selection of candidates to public office by popular vote"19through the use of the ballot, and the elected officials of which are determined through the will of the electorate.20"An election is the embodiment of the popular will, the expression of the sovereign power of the people."21"Specifically, the term 'election', in the context of the Constitution, may refer to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of votes."22 The winner is the candidate who has obtained a majority or plurality of valid votes cast in the election.23 "Sound policy dictates that public elective offices are filled by those who receive the highest number of votes cast in the election for that office. For, in all republican forms of government the basic idea is that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election."24 In case of protest, a revision or recount of the ballots cast for the candidates decides the election protest case. The candidate receiving the highest number or plurality of votes shall be proclaimed the winner. Even if the candidate receiving the majority votes is ineligible or disqualified, the candidate receiving the next highest number of votes or the second placer, can not be declared elected.25 "The wreath of victory cannot be transferred from the disqualified winner to the repudiated loser because the law then as now only authorizes a declaration of election in favor of the person who has obtained a plurality of votes and does not entitle a candidate receiving the next highest number of votes to be declared elected."26 In other words, "a defeated candidate cannot be deemed elected to the office."27

"Election contests involve public interest, and 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. The Supreme Court frowns upon any interpretation of the law or the rules that would hinder in any way not only the free and intelligent casting of the votes in an election but also the correct ascertainment of the results."28

In this case, based on the revision of ballots, the trial court found that:

First, by canvass of the Municipal Board of Canvassers the results were:

Carlos - 102,668 votes

Serapio - 77,270 votes, or a winning margin of 25,418 votes

Ramon Ignacio - 20 votes.

and consequently, the Board of Canvassers proclaimed petitioner Carlos the duly elected mayor of Valenzuela, Metro Manila.

Second, by physical count of the ballots, the results were:

Carlos - 103,551 votes

Serapio - 76,246 votes, or a winning margin of 27,305 votes.

Third, by revision of the ballots, the trial court found in a final tally that the "valid" votes obtained by the candidates were as follows:

Carlos - 83,609 votes

Serapio - 66,602 votes, or a winning margin of 17,007 votes.

Consequently, the final tally clearly showed petitioner Carlos as the overwhelming winner in the May 11, 1998 elections.

However, the trial court set aside the final tally of votes because of what the trial court perceived to be "significant badges of fraud" attributable to the protestee.29 These are:

First: The failure of the keys turned over by the City Treasurer to the trial court to fit the padlocks on the ballot boxes that compelled the court to forcibly open the padlocks. The trial court concluded that the real keys were lost or the padlocks substituted pointing to possible tampering of the contents of the ballot boxes.

Procedurally, the keys to the ballot boxes were turned over by the Board of Election Inspectors from the precinct level to the Municipal Board of Canvassers and finally to the municipal treasurer for safekeeping. The three-level turn-over of the keys will not prevent the possibility of these keys being mixed up. This is an ordinary occurrence during elections. The mere inability of the keys to fit into the padlocks attached to the ballot boxes does not affect the integrity of the ballots. At any rate, the trial court easily forced open the padlocks and found valid votes cast therein;

Second: Seven (7) ballot boxes were found empty. Thus, the trial court concluded that there were "missing ballots" and "missing election returns." This is pure speculation without factual basis. "The sea of suspicion has no shore, and the court that embarks upon it is without rudder or compass."30 On the other hand, the Summary of Votes as revised does not show any unaccounted precinct or whether there was any precinct without any ballot or election returns. It is a standard procedure of the Commission on Elections (Comelec) to provide extra empty ballot boxes for the use of the Board of Election Inspectors or the Board of Canvassers, in case of necessity.

The empty ballot boxes found could be the empty reserve ballot boxes that were not used by the Board of Election Inspectors or the Board of Canvassers since there was neither proof nor even a claim of missing ballots or missing election returns.

Third: Some schoolhouses experienced brownout during the counting of votes. There was nothing extraordinary that would invite serious doubts or suspicion that fraud was committed during the brownout that occurred. Indeed, one witness stated that it was the first time that he observed brownout in Dalandanan Elementary School and another stated that the brownout was localized in Coloong Elementary School. Since counting of votes lasted until midnight, the brownouts had caused only slight delay in the canvassing of votes because the election officials availed themselves of candles, flashlights and emergency lights. There were no reports of cheating or tampering of the election returns. In fact, witnesses testified that the counting of votes proceeded smoothly and no commotion or violence occurred. So, the brownouts had no effect on the integrity of the canvass.

Fourth: The absence of watchers for candidate Serapio from their posts during the counting of votes. This cannot be taken against candidate Carlos since it is the candidate's own look-out to protect his interest during the counting of votes and canvassing of election returns. As long as notices were duly served to the parties, the counting and canvassing of votes may validly proceed in the absence of watchers. Otherwise, candidates may easily delay the counting of votes or canvassing of returns by simply not sending their watchers. There was no incomplete canvass of returns, contrary to what the trial court declared. The evidence showed complete canvassin Valenzuela, Metro Manila.31

"We cannot allow an election protest on such flimsy averments to prosper, otherwise, the whole election process will deteriorate into an endless stream of crabs pulling at each other, racing to disembank from the water."32

Assuming for the nonce that the trial court was correct in holding that the final tally of valid votes as per revision report may be set aside because of the "significant badges of fraud", the same would be tantamount to a ruling that there were no valid votes cast at all for the candidates, and, thus, no winner could be declared in the election protest case. In short, there was failure of election.

In such case, the proper remedy is an action before the Commission on Elections en banc to declare a failure of election or to annul the election.33 However, the case below was an election protest case involving an

elective municipal position which, under Section 251 of the Election Code, falls within the exclusive original jurisdiction of the appropriate regional trial court.34

Nonetheless, the annulment of an election on the ground of fraud, irregularities and violations of election laws may be raised as an incident to an election contest. Such grounds for annulment of an election may be invoked in an election protest case. However, an election must not be nullified and the voters disenfranchised whenever it is possible to determine a winner on the basis of valid votes cast, and discard the illegally cast ballots. In this case, the petitioner admittedly received 17,007 valid votes more than the protestee, and therefore the nullification of the election would not lie. The power to nullify an election must be exercised with the greatest care with a view not to disenfranchise the voters, and only under circumstances that clearly call for such drastic remedial measure.35

As heretofore stated, in this jurisdiction, elections are won on the basis of a majority or plurality of votes cast and received by the candidates. "The right to hold an elective office is rooted on electoral mandate, not perceived entitlement to the office."36

More importantly, the trial court has no jurisdiction to declare a failure of election.37

Section 6 of the Omnibus Election Code provides that:

"Sec. 6. Failure of Election.—If, on account of force majeure, violence, terrorism, fraud or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody of canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty (30) days after the cessation of the cause of such postponement or suspension of the election or failure to elect." (Emphasis supplied)

Likewise, RA 7166 provides that:

"Sec. 4. Postponement, Failure of Election and Special Elections".-- The postponement, declaration of failure of election and the calling of special elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code shall be decided by the Commission sitting en banc by a majority vote of its members. The causes for the declaration of a failure of election may occur before or after the casting of votes or on the day of the election." (Emphasis supplied)

It is the Commission (Comelec) sitting en banc that is vested with exclusive jurisdiction to declare a failure of election.38

"In a petition to annul an election under Section 6, Batas Pambansa Blg. 881, two conditions must be averred in order to support a sufficient cause of action. These are: (1) the illegality must affect more than 50% of the votescast and (2) the good votes can be distinguished from the bad ones. It is only when these two conditions are established that the annulment of the election can be justified because the remaining votes do not constitute a valid constituency."39

We have held that: "To declare a failure of election, two (2) conditions must occur: first, no voting has taken place in the precincts concerned on the date fixed by law or, even if there were voting, the election nevertheless resulted in a failure to elect; and, second, the votes not cast would affect the result of the election."40 Neither of these conditions was present in the case at bar.

More recently, we clarified that, "Under the pertinent codal provision of the Omnibus Election Code, there are only three (3) instances where a failure of elections may be declared, namely: (a) the election in any polling

place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogous causes; or (c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud, or other analogous causes."41

Thus, the trial court in its decision actually pronounced a failure of election by disregarding and setting aside the results of the election. Nonetheless, as herein-above stated, the trial court erred to the extent of ousting itself of jurisdiction because the grounds for failure of election were not significant and even non-existent. More importantly, the commission of fraud can not be attributed to the protestee. There was no evidence on record that protestee had a hand in any of the irregularities that protestant averred. It is wrong for the trial court to state that the protestee had control over the "election paraphernalia" or over electric services. The Commission on Elections has control over election paraphernalia, through its officials and deputies.42 The Comelec can deputize with the concurrence of the President, law enforcement agencies and instrumentalities of the government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections.43 On the other hand, electric utility services in Metro Manila, including Valenzuela are under the control of its franchise holder, particularly the Manila Electric Company, a public service company, certainly not owned or controlled by the protestee. In fact, during election period, Comelec has control over such utilities as electric and even telephone service.44 What is important, however, is that the voters of Valenzuela were able to cast their votes freely and fairly. And in the election protest case, the trial court was able to recount and determine the valid votes cast.

Assuming that the trial court has jurisdiction to declare a failure of election, the extent of that power is limited to the annulment of the election and the calling of special elections.45 The result is a failure of election for that particular office. In such case, the court can not declare a winner.46 A permanent vacancy is thus created. In such eventuality, the duly elected vice-mayor shall succeed as provided by law.47

We find that the trial court committed a grave abuse of discretion amounting to lack or excess of jurisdiction in rendering its decision proclaiming respondent Serapio the duly elected mayor of Valenzuela, Metro Manila, on the basis of its perception of the voice of the people of Valenzuela, even without a majority or plurality votes cast in his favor. In fact, without a single vote in his favor as the trial court discarded all the votes. Thus, the decision is not supported by the highest number of valid votes cast in his favor. This violated the right to due process of law of petitioner who was not heard on the issue of failure of election, an issue that was not raised by the protestant. "A decision is void for lack of due process if, as a result, a party is deprived of the opportunity of being heard."48 The trial court can not decide the election protest case outside the issues raised. If it does, as in this case, the trial court is ousted of its jurisdiction. Likewise, it is a basic principle that a decision with absolutely nothing to support it is void.49 "A void decision may be assailed or impugned at any time either directly or collaterally, by means of a petition filed in the same case or by means of a separate action, or by resisting such decision in any action or proceeding where it is invoked."50Here, the trial court indulged in speculations on its view of the voice of the people, and decided the case disregarding the evidence, but on its own intuition, ipse dixit.51 How was this voice communicated to the trial court? Certainly not by competent evidence adduced before the court as it should be, but by extra-sensory perception. This is invalid in law. Contrary to its own finding that petitioner obtained 83,600 valid votes against 66,602 valid votes for the respondent as second placer, or a plurality of 17,007 votes, the trial court declared the second placer as the winner. This is a blatant abuse of judicial discretion by any account. It is a raw exercise of judicial function in an arbitrary or despotic manner, amounting to evasion of the positive duty to act in accord with law.52

In a special civil action for certiorari, the burden is on petitioner to prove not merely reversible error, but grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the public respondent Judge. "By grave abuse of discretion is meant capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave abuse of discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law."53 We must emphasize that election to office is determined by the highest number of votes obtained by a candidate in the election.

The Judgment

WHEREFORE, the Court GRANTS the petition. The Court ANNULS and DECLARES VOID the decision dated April 24, 2000 of the trial court in Election Protest Case No. V-14-98.

The temporary restraining order we issued on May 8, 2000, is made permanent.

Let Election Protest Case No. V-14-98 be remanded to the trial court for decision within a non-extendible period of fifteen (15) days from notice of this decision. The judge shall report to this Court on the decision rendered within five (5) days from rendition submitting a copy thereof to the Office of the Clerk of Court en banc.

This decision is immediately executory.

No costs.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

Melo, J., in the result.

G.R. Nos. L-68379-81 September 22, 1986

EVELIO B. JAVIER, petitioner, vs.THE COMMISSION ON ELECTIONS, and ARTURO F. PACIFICADOR, respondents.

Raul S. Roco and Lorna Patajo-Kapunan for petitioner.

 

CRUZ, J.:

The new Solicitor General has moved to dismiss this petition on the ground that as a result of supervening events it has become moot and academic. It is not as simple as that. Several lives have been lost in connection with this case, including that of the petitioner himself. The private respondent is now in hiding. The purity of suffrage has been defiled and the popular will scorned through a confabulation of those in authority. This Court cannot keep silent in the face of these terrible facts. The motion is denied.

The petitioner and the private respondent were candidates in Antique for the Batasang Pambansa in the May 1984 elections. The former appeared to enjoy more popular support but the latter had the advantage of being the nominee of the KBL with all its perquisites of power. On May 13, 1984, the eve of the elections, the bitter contest between the two came to a head when several followers of the petitioner were ambushed and killed, allegedly by the latter's men. Seven suspects, including respondent Pacificador, are now facing trial for these murders. The incident naturally heightened tension in the province and sharpened the climate of fear among the electorate. Conceivably, it intimidated voters against supporting the Opposition candidate or into supporting the candidate of the ruling party.

It was in this atmosphere that the voting was held, and the post-election developments were to run true to form. Owing to what he claimed were attempts to railroad the private respondent's proclamation, the petitioner went to the Commission on Elections to question the canvass of the election returns. His complaints were dismissed and the private respondent was proclaimed winner by the Second Division of the said body. The petitioner thereupon came to this Court, arguing that the proclamation was void because made only by a division and not

by the Commission on Elections en banc as required by the Constitution. Meanwhile, on the strength of his proclamation, the private respondent took his oath as a member of the Batasang Pambansa.

The case was still being considered by this Court when on February 11, 1986, the petitioner was gunned down in cold blood and in broad daylight. The nation, already indignant over the obvious manipulation of the presidential elections in favor of Marcos, was revolted by the killing, which flaunted a scornful disregard for the law by the assailants who apparently believed they were above the law. This ruthless murder was possibly one of the factors that strengthened the cause of the Opposition in the February revolution that toppled the Marcos regime and installed the present government under President Corazon C. Aquino.

The abolition of the Batasang Pambansa and the disappearance of the office in dispute between the petitioner and the private respondent-both of whom have gone their separate ways-could be a convenient justification for dismissing this case. But there are larger issues involved that must be resolved now, once and for all, not only to dispel the legal ambiguities here raised. The more important purpose is to manifest in the clearest possible terms that this Court will not disregard and in effect condone wrong on the simplistic and tolerant pretext that the case has become moot and academic.

The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen comes to us in quest of law but we must also give him justice. The two are not always the same. There are times when we cannot grant the latter because the issue has been settled and decision is no longer possible according to the law. But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint upon the future.

It is a notorious fact decried by many people and even by the foreign press that elections during the period of the Marcos dictatorship were in the main a desecration of the right of suffrage. Vote-buying, intimidation and violence, illegal listing of voters, falsified returns, and other elections anomalies misrepresented and vitiated the popular will and led to the induction in office of persons who did not enjoy the confidence of the sovereign electorate. Genuine elections were a rarity. The price at times was human lives. The rule was chicanery and irregularity, and on all levels of the polls, from the barangay to the presidential. This included the rigged plebiscites and referenda that also elicited the derision and provoked the resentments of the people.

Antique in 1984 hewed to the line and equaled if it did not surpass the viciousness of elections in other provinces dominated by the KBL. Terrorism was a special feature, as demonstrated by the killings previously mentioned, which victimized no less than one of the main protagonists and implicated his rival as a principal perpetrator. Opposition leaders were in constant peril of their lives even as their supporters were gripped with fear of violence at the hands of the party in power.

What made the situation especially deplorable was the apparently indifferent attitude of the Commission on Elections toward the anomalies being committed. It is a matter of record that the petitioner complained against the terroristic acts of his opponents. All the electoral body did was refer the matter to the Armed Forces without taking a more active step as befitted its constitutional role as the guardian of free, orderly and honest elections. A more assertive stance could have averted the Sibalom election eve massacre and saved the lives of the nine victims of the tragedy.

Public confidence in the Commission on Elections was practically nil because of its transparent bias in favor of the administration. This prejudice left many opposition candidates without recourse except only to this Court.

Alleging serious anomalies in the conduct of the elections and the canvass of the election returns, the petitioner went to the Commission on Elections to prevent the impending proclamation of his rival, the private respondent herein. 1 Specifically, the petitioner charged that the elections were marred by "massive terrorism, intimidation, duress, vote-buying, fraud, tampering and falsification of election returns under duress, threat and intimidation, snatching of ballot boxes perpetrated by the armed men of respondent Pacificador." 2 Particular mention was made of the municipalities of Caluya, Cabate, Tibiao, Barbaza, Laua-an, and also of San Remigio, where the petitioner claimed the election returns were not placed in the ballot boxes but merely wrapped in cement bags or Manila paper.

On May 18, 1984, the Second Division of the Commission on Elections directed the provincial board of canvassers of Antique to proceed with the canvass but to suspend the proclamation of the winning candidate until further orders. 3 On June 7, 1984, the same Second Division ordered the board to immediately convene and to proclaim the winner without prejudice to the outcome of the case before the Commission. 4 On certiorari before this Court, the proclamation made by the board of canvassers was set aside as premature, having been made before the lapse of the 5-day period of appeal, which the petitioner had seasonably made. 5 Finally, on July 23, 1984, the Second Division promulgated the decision now subject of this petition which inter alia proclaimed Arturo F. Pacificador the elected assemblyman of the province of Antique. 6

This decision was signed by Chairman Victoriano Savellano and Commissioners Jaime Opinion and Froilan M. Bacungan. Previously asked to inhibit himself on the ground that he was a former law partner of private respondent Pacificador, Opinion had refused. 7

The petitioner then came to this Court, asking us to annul the said decision.

The core question in this case is one of jurisdiction, to wit: Was the Second Division of the Commission on Elections authorized to promulgate its decision of July 23, 1984, proclaiming the private respondent the winner in the election?

The applicable provisions are found in Article XII-C, Sections 2 and 3, of the 1973 Constitution.

Section 2 confers on the Commission on Elections the power to:

(2) Be the sole judge of all contests relating to the election, returns and qualifications of all member of the Batasang Pambansa and elective provincial and city officials.

Section 3 provides:

The Commission on Elections may sit en banc or in three divisions. All election cases may be heard and decided by divisions except contests involving members of the Batasang Pambansa, which shall be heard and decided en banc. Unless otherwise provided by law, all election cases shall be decided within ninety days from the date of their submission for decision.

While both invoking the above provisions, the petitioner and the respondents have arrived at opposite conclusions. The records are voluminous and some of the pleadings are exhaustive and in part even erudite. And well they might be, for the noble profession of the law-despite all the canards that have been flung against it-exerts all efforts and considers all possible viewpoints in its earnest search of the truth.

The petitioner complains that the Proclamation made by the Second Division is invalid because all contests involving the members of the Batasang Pambansa come under the jurisdiction of the Commission on Elections en banc. This is as it should be, he says, to insure a more careful decision, considering the importance of the offices involved. The respondents, for their part, argue that only contests need to be heard and decided en banc and all other cases can be-in fact, should be-filed with and decided only by any of the three divisions.

The former Solicitor General makes much of this argument and lays a plausible distinction between the terms "contests" and "cases" to prove his point. 8 Simply put, his contention is that the pre-proclamation controversy between the petitioner and the private respondent was not yet a contest at that time and therefore could be validly heard by a mere division of the Commission on Elections, consonant with Section 3. The issue was at this stage still administrative and so was resoluble by the Commission under its power to administer all laws relative to the conduct of elections, 9 not its authority as sole judge of the election contest.

A contest, according to him, should involve a contention between the parties for the same office "in which the contestant seeks not only to oust the intruder but also to have himself inducted into the office." 10 No proclamation had as yet been made when the petition was filed and later decided. Hence, since neither the

petitioner nor the private respondent had at that time assumed office, there was no Member of the Batasang Pambansa from Antique whose election, returns or qualifications could be examined by the Commission on Elections en banc.

In providing that the Commission on Elections could act in division when deciding election cases, according to this theory, the Constitution was laying down the general rule. The exception was the election contest involving the members of the Batasang Pambansa, which had to be heard and decided en banc. 11 The en banc requirement would apply only from the time a candidate for the Batasang Pambansa was proclaimed as winner, for it was only then that a contest could be permitted under the law. All matters arising before such time were, necessarily, subject to decision only by division of the Commission as these would come under the general heading of "election cases."

As the Court sees it, the effect of this interpretation would be to divide the jurisdiction of the Commission on Elections into two, viz.: (1) over matters arising before the proclamation, which should be heard and decided by division in the exercise of its administrative power; and (2) over matters arising after the proclamation, which could be heard and decided only en banc in the exercise of its judicial power. Stated otherwise, the Commission as a whole could not act as sole judge as long as one of its divisions was hearing a pre-proclamation matter affecting the candidates for the Batasang Pambansa because there was as yet no contest; or to put it still another way, the Commission en banc could not do what one of its divisions was competent to do, i.e., decide a pre-proclamation controversy. Moreover, a mere division of the Commission on Elections could hear and decide, save only those involving the election, returns and qualifications of the members of the Batasang Pambansa, all cases involving elective provincial and city officials from start to finish, including pre-proclamation controversies and up to the election protest. In doing so, it would exercise first administrative and then judicial powers. But in the case of the Commission en banc, its jurisdiction would begin only after the proclamation was made and a contest was filed and not at any time and on any matter before that, and always in the exercise only of judicial power.

This interpretation would give to the part more powers than were enjoyed by the whole, granting to the division while denying to the banc. We do not think this was the intention of the Constitution. The framers could not have intended such an irrational rule.

We believe that in making the Commission on Elections the sole judge of all contests involving the election, returns and qualifications of the members of the Batasang Pambansa and elective provincial and city officials, the Constitution intended to give it full authority to hear and decide these cases from beginning to end and on all matters related thereto, including those arising before the proclamation of the winners.

It is worth observing that the special procedure for the settlement of what are now called "pre-proclamation controversies" is a relatively recent innovation in our laws, having been introduced only in 1978, through P.D. No. 1296, otherwise known as the 1978 Election Code. Section 175 thereof provided:

Sec. 175. Suspension and annulment of proclamation.-The Commission shall be the sole judge of all pre-proclamation controversies and any of its decisions, orders or rulings shall be final and executory. It may,motu proprio or upon written petition, and after due notice and hearing order the suspension of the proclamation of a candidate-elect or annul any proclamation, if one has been made, on any of the grounds mentioned in Sections 172, 173 and 174 thereof.

Before that time all proceedings affecting the election, returns and qualifications of public officers came under the complete jurisdiction of the competent court or tribunal from beginning to end and in the exercise of judicial power only. It therefore could not have been the intention of the framers in 1935, when the Commonwealth Charter was adopted, and even in 1973, when the past Constitution was imposed, to divide the electoral process into the pre-proclamation stage and the post-proclamation stage and to provide for a separate jurisdiction for each stage, considering the first administrative and the second judicial.

Besides, the term "contest" as it was understood at the time Article XII-C. Section 2(2) was incorporated in the 1973 Constitution did not follow the strict definition of a contention between the parties for the same office. Under the Election Code of 1971, which presumably was taken into consideration when the 1973 Constitution was being drafted, election contests included the quo warranto petition that could be filed by any voter on the

ground of disloyalty or ineligibility of the contestee although such voter was himself not claiming the office involved. 12

The word "contests" should not be given a restrictive meaning; on the contrary, it should receive the widest possible scope conformably to the rule that the words used in the Constitution should be interpreted liberally. As employed in the 1973 Constitution, the term should be understood as referring to any matter involving the title or claim of title to an elective office, made before or after proclamation of the winner, whether or not the contestant is claiming the office in dispute. Needless to stress, the term should be given a consistent meaning and understood in the same sense under both Section 2(2) and Section 3 of Article XII-C of the Constitution.

The phrase "election, returns and qualifications" should be interpreted in its totality as referring to all matters affecting the validity of the contestee's title. But if it is necessary to specify, we can say that "election" referred to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of the votes; "returns" to the canvass of the returns and the proclamation of the winners, including questions concerning the composition of the board of canvassers and the authenticity of the election returns and "qualifications" to matters that could be raised in a quo warranto proceeding against the proclaimed winner, such as his disloyalty or ineligibility or the inadequacy of his certificate of candidacy.

All these came under the exclusive jurisdiction of the Commission on Elections insofar as they applied to the members of the defunct Batasang Pambansa and, under Article XII-C, Section 3, of the 1973 Constitution, could be heard and decided by it only en banc.

We interpret "cases" as the generic term denoting the actions that might be heard and decided by the Commission on Elections, only by division as a general rule except where the case was a "contest" involving members of the Batasang Pambansa, which had to be heard and decided en banc.

As correctly observed by the petitioner, the purpose of Section 3 in requiring that cases involving members of the Batasang Pambansa be heard and decided by the Commission en banc was to insure the most careful consideration of such cases. Obviously, that objective could not be achieved if the Commission could act en banconly after the proclamation had been made, for it might then be too late already. We are all-too-familiar with the grab-the-proclamation-and-delay-the-protest strategy of many unscrupulous candidates which has resulted in the frustration of the popular will and the virtual defeat of the real winners in the election. The respondent's theory would make this gambit possible for the pre- proclamation proceedings, being summary in nature, could be hastily decided by only three members in division, without the care and deliberation that would have otherwise been observed by the Commission en banc.

After that, the delay. The Commission en banc might then no longer be able to rectify in time the proclamation summarily and not very judiciously made by the division. While in the end the protestant might be sustained, he might find himself with only a Phyrric victory because the term of his office would have already expired.

It may be argued that in conferring the initial power to decide the pre- proclamation question upon the division, the Constitution did not intend to prevent the Commission en banc from exercising the power directly, on the theory that the greater power embraces the lesser. It could if it wanted to but then it could also allow the division to act for it. That argument would militate against the purpose of the provision, which precisely limited all questions affecting the election contest, as distinguished from election cases in general, to the jurisdiction of the Commission en bancas sole judge thereof. "Sole judge" excluded not only all other tribunals but also and even the division of the Commission A decision made on the contest by less than the Commission en banc would not meet the exacting standard of care and deliberation ordained by the Constitution

Incidentally, in making the Commission the "sole judge" of pre- proclamation controversies in Section 175, supra, the law was obviously referring to the body sitting en banc. In fact, the pre-proclamation controversies involved inAratuc vs. Commission on Elections, 13 where the said provision was applied, were heard and decided en banc.

Another matter deserving the highest consideration of this Court but accorded cavalier attention by the respondent Commission on Elections is due process of law, that ancient guaranty of justice and fair play which

is the hallmark of the free society. Commissioner Opinion ignored it. Asked to inhibit himself on the ground that he was formerly a law partner of the private respondent, he obstinately insisted on participating in the case, denying he was biased. 14

Given the general attitude of the Commission on Elections toward the party in power at the time, and the particular relationship between Commissioner Opinion and MP Pacificador, one could not be at least apprehensive, if not certain, that the decision of the body would be adverse to the petitioner. As in fact it was. Commissioner Opinion's refusal to inhibit himself and his objection to the transfer of the case to another division cannot be justified by any criterion of propriety. His conduct on this matter belied his wounded protestations of innocence and proved the motives of the Second Division when it rendered its decision.

This Court has repeatedly and consistently demanded "the cold neutrality of an impartial judge" as the indispensable imperative of due process. 15 To bolster that requirement, we have held that the judge must not only be impartial but must also appear to be impartial as an added assurance to the parties that his decision will be just. 16 The litigants are entitled to no less than that. They should be sure that when their rights are violated they can go to a judge who shall give them justice. They must trust the judge, otherwise they will not go to him at all. They must believe in his sense of fairness, otherwise they will not seek his judgment. Without such confidence, there would be no point in invoking his action for the justice they expect.

Due process is intended to insure that confidence by requiring compliance with what Justice Frankfurter calls the rudiments of fair play. Fair play cans for equal justice. There cannot be equal justice where a suitor approaches a court already committed to the other party and with a judgment already made and waiting only to be formalized after the litigants shall have undergone the charade of a formal hearing. Judicial (and also extra-judicial) proceedings are not orchestrated plays in which the parties are supposed to make the motions and reach the denouement according to a prepared script. There is no writer to foreordain the ending. The judge will reach his conclusions only after all the evidence is in and all the arguments are filed, on the basis of the established facts and the pertinent law.

The relationship of the judge with one of the parties may color the facts and distort the law to the prejudice of a just decision. Where this is probable or even only posssible, due process demands that the judge inhibit himself, if only out of a sense of delicadeza. For like Caesar's wife, he must be above suspicion. Commissioner Opinion, being a lawyer, should have recognized his duty and abided by this well-known rule of judicial conduct. For refusing to do so, he divested the Second Division of the necessary vote for the questioned decision, assuming it could act, and rendered the proceeding null and void. 17

Since this case began in 1984, many significant developments have taken place, not the least significant of which was the February revolution of "people power" that dislodged the past regime and ended well nigh twenty years of travail for this captive nation. The petitioner is gone, felled by a hail of bullets sprayed with deadly purpose by assassins whose motive is yet to be disclosed. The private respondent has disappeared with the "pomp of power" he had before enjoyed. Even the Batasang Pambansa itself has been abolished, "an iniquitous vestige of the previous regime" discontinued by the Freedom Constitution. It is so easy now, as has been suggested not without reason, to send the recrds of this case to the archives and say the case is finished �and the book is closed.

But not yet.

Let us first say these meager words in tribute to a fallen hero who was struck down in the vigor of his youth because he dared to speak against tyranny. Where many kept a meekly silence for fear of retaliation, and still others feigned and fawned in hopes of safety and even reward, he chose to fight. He was not afraid. Money did not tempt him. Threats did not daunt him. Power did not awe him. His was a singular and all-exacting obsession: the return of freedom to his country. And though he fought not in the barricades of war amid the sound and smoke of shot and shell, he was a soldier nonetheless, fighting valiantly for the liberties of his people against the enemies of his race, unfortunately of his race too, who would impose upon the land a perpetual night of dark enslavement. He did not see the breaking of the dawn, sad to say, but in a very real sense Evelio B. Javier made that dawn draw nearer because he was, like Saul and Jonathan, "swifter than eagles and stronger than lions."

A year ago this Court received a letter which began: "I am the sister of the late Justice Calixto Zaldivar. I am the mother of Rhium Z. Sanchez, the grandmother of Plaridel Sanchez IV and Aldrich Sanchez, the aunt of Mamerta Zaldivar. I lost all four of them in the election eve ambush in Antique last year." She pleaded, as so did hundreds of others of her provincemates in separate signed petitions sent us, for the early resolution of that horrible crime, saying: "I am 82 years old now. I am sick. May I convey to you my prayer in church and my plea to you, 'Before I die, I would like to see justice to my son and grandsons.' May I also add that the people of Antique have not stopped praying that the true winner of the last elections will be decided upon by the Supreme Court soon."

That was a year ago and since then a new government has taken over in the wake of the February revolution. The despot has escaped, and with him, let us pray, all the oppressions and repressions of the past have also been banished forever. A new spirit is now upon our land. A new vision limns the horizon. Now we can look forward with new hope that under the Constitution of the future every Filipino shall be truly sovereign in his own country, able to express his will through the pristine ballow with only his conscience as his counsel.

This is not an impossible dream. Indeed, it is an approachable goal. It can and will be won if we are able at last, after our long ordeal, to say never again to tyranny. If we can do this with courage and conviction, then and only then, and not until then, can we truly say that the case is finished and the book is closed.

WHEREFORE, let it be spread in the records of this case that were it not for the supervening events that have legally rendered it moot and academic, this petition would have been granted and the decision of the Commission on Elections dated July 23, 1984, set aside as violative of the Constitution.

SO ORDERED.

Feria, Yap, Narvasa, Alampay and Paras, JJ., concur.

Fernan and Gutierrez, Jr., JJ., concur in the result.