Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. L-46863 November 18, 1939

IRINEO MOYA, petitioner, vs. AGRIPINO GA. DEL FIERO, respondent.

Elpidio Quirino for petitioner. Claro M. Recto for respondent.

LAUREL, J.:

This is a petition for review by certiorari of the judgment of the Court of Appeals in the above entitled case declaring the respondent, Agripino Ga. del Fierro, the candidate-elect for the office of mayor of the municipality of Paracale, Province of Camarines Norte, with a majority of three votes over his rival, Irineo Moya. In the general elections held on December 14, 1937, the parties herein were contending candidates for the aforesaid office. After canvass of the returns the municipal council of Paracale, acting as board of canvassers, proclaimed the petitioner as the elected mayor of said municipality with a majority of 102 votes. On December 27, 1937, the respondent field a motion of protest in the Court of First Instance of Camarines Norte, the Court of Appeals, on July 13, 1939 rendered the judgment hereinbefore mentioned which is sought by the petitioner to be reviewed and reversed upon the errors alleged to have been committed by the Court of Appeals:

1. In admitting and counting in favor of the respondent, 8 ballots either inadvertently or contrary to the controlling decisions of this Honorable Court.

2. In admitting and counting in favor of the respondent, 3 ballots marked "R. del Fierro."

3. In admitting and counting in favor of the respondent, 7 ballots marked "Rufino del Firro."

4. In admitting and counting in favor of the respondent, 72 ballots marked "P. del Fierro."

Taking up seriatim the alleged errors, we come to the first assignment involving the eight (8) ballots now to be mentioned. (1) With reference to ballot Exhibit F-175 in precinct No. 2, alleged to have been inadvertently admitted in favor of the respondent, such inadvertence raises a question of fact which could have been corrected by the Court of Appeals and which could we are not in a position to determine in this proceeding for review by certiorari. Upon the other hand, if the error attributed to the Court of Appeals consisted in having admitted ballot Exhibit F-175 in precinct No. 2 instead of the ballot bearing the same number corresponding to precinct No. 1, and this latter ballot clearly appears admissible for the respondent because the name written on the space for mayor is "Primo del Fierro" or "Pimo de Fierro", the error is technical and deserves but scanty consideration. (2) Ballot Exhibit F-26 in precinct No. 3 was erroneously admitted for the respondent by the Court of Appeals, the name written on the space for mayor being "G.T. Krandes." It is true that on the fourth line for the councilor "Alcalde Pinong del Fierro": appears; but the intention of the elector is rendered vague and incapable of ascertaining and the ballot was improperly counted for the respondent. As to this ballot, the contention of the petitioner is sustained (3) Ballot Exhibit F-77 in precinct No. 2 should also have been rejected by the Court of Appeals. The ballot bears the distinguishing mark "O. K." placed after the name "M. Lopis" written on space for vice-mayor. The contention of the petitioner in this respect is likewise sustained. (4) Ballot Exhibit F-9 in precinct No. 2 was properly admitted for respondent. On this ballot the elector wrote within the space for mayor the name of Regino Guinto, a candidate for the provincial board and wrote the respondent's name immediately below the line for mayor but immediately above the name "M. Lopez" voted by him for vice-mayor. The intention of the elector to vote for the respondent for the office of the mayor is clear under the circumstances. (5) Ballot F-131 in precinct No. 1 was also properly counted for the respondent. On this ballot the elector wrote the respondent's name on the space for vice-mayor, but, apparently realizing his mistake, he placed an arrow connecting the name of the respondent to the word "Mayor" (Alcalde) printed on the left side of the ballot. The intention of the elector to vote for the respondent for the office of mayor is thus evident, in the absence of proof showing that the ballot had been tampered with. (6)

Ballot F-7 in precinct No. 5 is admissible for the respondent and the Court of Appeals committed no error in so adjudicating. Although the name of the respondent is written on the first space for member of the provincial board, said name is followed in the next line by "Bice" Culastico Palma, which latter name is followed in the next line by word "consehal" and the name of a candidate for this position. The intention of the elector to vote for the respondent for the office of mayor being manifest, the objection of the petitioner to the admission of this ballot is overruled. (7) Ballot F-1 in precinct No. 2 is valid for the respondent. On this ballot the Christian name of the respondent was written on the second space for member of the provincial board, but his surname was written on the proper space for mayor with no other accompanying name or names. The intention of the elector being manifest, the same should be given effect in favor of the respondent. (8) Ballot F-44 in precinct No. 2 wherein "Agripino F. Garcia" appears written on the proper space, is valid for the respondent. In his certificate of candidacy the respondent gave his name as "Agripino Ga. del Fierro." The conclusion of the trial court, upheld by the Court of Appeals, that the letter "F" stands for "Fierro" and "Garcia" for the contraction "Ga." is not without justification and, by liberal construction, the ballot in question was properly admitted for the respondent.

The second error assigned by the petitioner refers to three ballots, namely, Exhibit F-119 in precinct No. 1 Exhibit F-24 in precinct No. 2, and Exhibit F-6 in precinct No. 4. These three ballots appear to be among the 75 ballots found by the Court of Appeals as acceptable for the respondent on the ground that the initial letter "P" stands for "Pino" in "Pino del Fierro" which is a name mentioned in the certificate of candidacy of the respondent. The petitioner contends that the initial "R" and not "P". Even if we could reverse this finding, we do not feel justified in doing so after examining the photostatic copies of these ballots attached to the herein petition for certiorari. The second assignment of error is accordingly overruled.

Upon the third assignment of error, the petitioner questions the correctness of the judgment of the Court of Appeals in adjudicating to the respondent the seven ballots wherein "Rufino del Fierro" was voted for the office of mayor. We are of the opinion that the position taken by the Court of Appeals is correct. There was no other candidate for the office of mayor with the name of "Rufino" or similar name and, as the respondent was districtly identified by his surname on these ballots, the intention of the voters in preparing the same was undoubtedly to vote for the respondent of the office for which he was a candidate.lawphi1.net

The fourth assignment of error deals with the 72 ballots wherein "P. del Fierro" was voted for the office of mayor, and it is the contention of the petitioner that said ballots should not have been counted by the Court of Appeals in favor of the respondent. For the identical reason indicated under the discussion of petitioner's second assignment of error, namely, that "P" stands for "Pino" in "Pino del Fierro" which is a name mentioned in the certificate of candidacy of the respondent, we hold that there was no error in the action of the Court of Appeals in awarding the said ballots to the respondent.

With the exception of ballot marked as Exhibit F-26 in precinct No. 3 and ballot marked as Exhibit F-77 in precinct No. 2, we are inclined to accept the rest of the disputed ballots for the respondent not only for the specific reasons already given but also and principally for the more fundamental reason now to be stated. As long as popular government is an end to be achieved and safeguarded, suffrage, whatever may be the modality and form devised, must continue to be the manes by which the great reservoir of power must be emptied into the receptacular agencies wrought by the people through their Constitution in the interest of good government and the common weal. Republicanism, in so far as it implies the adoption of a representative type of government, necessarily points to the enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the established authority. He has a voice in his Government and whenever called upon to act in justifiable cases, to give it efficacy and not to stifle it. This, fundamentally, is the reason for the rule that ballots should be read and appreciated, if not with utmost, with reasonable, liberality. Counsel for both parties have called our attention to the different and divergent rules laid down by this Court on the appreciation of ballots. It will serve no good and useful purpose for us to engage in the task of reconciliation or harmonization of these rules, although this may perhaps be undertaken, as no two cases will be found to be exactly the same in factual or legal environment. It is sufficient to observe, however, in this connection that whatever might have been said in cases heretofore decided, no technical rule or rules should be permitted to defeat the intention of the voter, if that intention is discoverable from the ballot itself, not from evidencealiunde. This rule of interpretation goes to the very root of the system. Rationally, also, this must be the justification for the suggested liberalization of the rules on appreciation of ballots which are now incorporated in section 144 of the Election Code (Commonwealth Act No. 357).

It results that, crediting the petitioner with the two ballots herein held to have been erroneously admitted by the Court of Appeals for the respondent, the latter still wins by one vote. In view whereof it becomes unnecessary to consider the counter-assignment of errors of the respondent.

With the modification of the decision of the Court of Appeals, the petition for the writ of certiorari is hereby dismissed, without pronouncement regarding costs.

Avancea, C.J., Villa-Real, Imperial, Diaz, Concepcion and Moran, JJ., concur.

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. L-29333 February 27, 1969

MARIANO LL. BADELLES, protestant-appellant, vs. CAMILO P. CABILI, protegee-appellee.

--------------------------

G.R. No. L-29334 February 27, 1969

BONIFACIO P. LEGASPI and CECILlO T. BARAZON protestants-appellants, vs. FELIX Z. ACTUB, PROVIDENCIO P. ABRAGAN, MANUEL F. CELDRAN, CASIMERO P. CABIGON and BENITO ONG, protestees-appellees.

Bonifacio P. Legaspi for and in his own behalf. Camilo P. Cabili. Gerardo B. Padilla and Ignacio Espaol and Voltaire I. Roviro for protestees-appellees.

FERNANDO, J.:

Two election protests against the duly proclaimed Mayor and Councilors of Iligan City, after the Nov. 14, 1967 elections, based on the allegations of flagrant violations of certain mandatory provisions of the Election Code, to be more specifically set forth hereafter, were dismissed in a single order by the Court of First Instance of Lanao del Norte, the Honorable Teodulo C. Tandayag presiding. The cases are now before us on appeal.

In one of them, 1 the election of Honorable Camilo P. Cabili to the Office of City Mayor of Iligan City, was contested by protestant, now appellant, Mariano Badelles. In the other, 2 the protestants are the now appellants, Bonifacio P. Legaspi and Cecilia T. Barazon who along with the five protestees 3 were among those who were registered candidates voted for in such election for councilors in the City of Iligan, with the protestees being credited with the five highest number of votes, with protestants Legaspi and Barazon obtaining sixth and seventh places, respectively.

In such order of dismissal, it was admitted that while irregularities as well as misconduct on the part of election officers were alleged in the election protests filed, there was however an absence of an allegation that they would change the result of the election in favor of the protestants and against the protestees, that such irregularities would destroy the secrecy and integrity of the ballots cast, or that the protestees knew of or participated in the commission thereof. For the lower court then, the lack of a cause of action was rather evident.

Hence the order of dismissal of March 23, 1968, which was sought to be fortified by the invocation of the doctrines that voters should not be deprived of their right to vote occasioned by the failure of the election officials to comply with the formal prerequisites to the exercise of the right of suffrage and that the rules and regulations for the conduct of elections while mandatory before the voting should be considered directory thereafter. The validity of such order of dismissal is now to be inquired into by us in this appeal.

In the petition of protestant Badelles, dated December 8, 1967, and marked as received the next day by the Clerk of Court of the Court of First Instance of Lanao del Norte, 15th Judicial District, it was stated that both he and protestee Camilo P. Cabili were the duly registered candidates for the Office of City Mayor of Iligan City, both having filed their respective certificates of candidacy in

accordance with law and as such candidates voted for in the November 14, 1967 election. It was then alleged that the Board of Canvassers, on November 25, 1967, proclaimed as elected protestee for having obtained 11,310 votes while protestant was credited with 8,966 votes. Protestant would impugn the election of Cabili on the ground that there were "flagrant violation of mandatory provisions of law relating to or governing elections ...." in that more than 200 voters were registered per precinct contrary to the provision limiting such number of 200 only and that no publication of the list of voters for each precinct was made up to the election day itself, enabling persons who under the law could not vote being allowed to do so. As a result of such alleged "flagrant violations of the laws relation to or governing elections" around 8,300 individuals were allowed to vote illegally.

It was likewise asserted that not less than 8,000 qualified voters were unable to exercise their right of suffrage in view of their failure, without any fault on their part, to have the proper identification cards or the non-listing of their names in the list of voters. It was stated further that even in the case of those individuals provided with identification cards with their names included in the list of voters, they could not avail themselves of their right of suffrage as their applications for registration could not be found. Mention was also made of the fact that the final lists of voters and the applications for registration were delivered to their respective precincts late on election day itself thus preventing them from voting. Moreover, confusion, so it was alleged, was caused by the excessive number of voters being listed and many having been assigned to precincts other than the correct ones.

What was thus objected to is the fact that illegal votes were cast by those not qualified to do so, numbering 8,300 or more and that an approximately equal number, who were duly registered with the Commission on Elections, Iligan City, were unable to vote due to the above circumstances. The proclamation then could not have reflected the true will of the electorate as to who was the mayor elected, as the majority of protestee Cabili over the protestant consisted of only 2,344 votes.

The prayer was among others for the proclamation of protestee as well as other candidates for elective positions in the City of Iligan being set aside and declared null and void, protestant pleading further that he be granted other such relief as may be warranted in law and equity.

The protest of the candidates for councilor Legaspi and Barazon in the other case against protestees 4 was in substance similarly worded. The prayer was for the setting aside and declaring null and void the proclamation of protestees with protestants seeking such other relief which should be theirs according to law and to equity.

In the first case, protestee Cabili moved to dismiss the petition on the following grounds: "1. That the protest was filed beyond the reglementary period allowed by the Revised Election Code; 2. That [the lower court] has no jurisdiction over the subject matter of the present case, the Commission on Elections being the proper body to hear the same; 3. That the complaint states no cause of action." 5 This very same grounds were relied upon in a motion to dismiss by protestees Actub and Cabigon, filed in the other suit.

As above noted, in a single order of March 23, 1968, the two above election protests were dismissed, the lower court being of the opinion that neither petition alleged a cause of action "to justify [it] to try the same." The first ground of the motion to dismiss to the effect that the protests in both cases were filed beyond the reglementary period was rejected. The claim as to lack of jurisdiction was likewise held to be without merit. The single order of dismissal in both cases as indicated was based on the lack of a cause of action.

The reasoning followed by the lower court in reaching the above conclusion that there was no cause of action, proceeded along these lines: "Mere irregularities or misconduct on the part of election officers which do not tend to affect the result of the elections are not of themselves either ground for contest or for proper matters of inquiry... There is no allegation in the protest that the alleged irregularities committed by the election officers would tend to change the result of the election in favor of the protestants and against the protestees. There is no allegation in the petition that the 8,000 voters who failed to vote were all voters of protestants and the 8,300 illegal voters who voted were for the protestees. There is, therefore, no legal and practical justification for the court to inquire into the irregularities committed by the election officials, as alleged in the petition, for it would not give any benefit in favor of the protestants to the end that they will be declared the duly elected mayor and councilors, respectively, of this City."6

It was further stated in such order of dismissal: "There is no allegation in the petition that the irregularities committed by the election officials have destroyed the secrecy and integrity of the ballots cast. There is no allegation in the petition that the non-compliance of the election officials of the provisions of the election laws regarding the registration of voters were intentional on their part for the purpose of committing frauds for the benefit of the protestees. There is no allegation in the petition that because of the alleged irregularities committed by the election officials in not following the provisions of the election laws regarding the registration of voters and the distribution of the precincts, that all the votes cast during said elections are illegal, nor is there an

allegation in the protests that the irregularities committed by the election officials would affect the election in favor of the protestees." 7

A greater regard for the cause of accuracy ought to have admonished the lower court from asserting in an uncompromising tone the absence of an allegation that the protestants in both cases failed to allege that if the facts pleaded by them were proved the result would not have been different. It is true the complaints could have been more explicitly worded, but as they stood, the absence of such a claim could not be so confidently asserted.

To repeat, both protests were dismissed. We do not discount a certain degree of plausibility attaching to the line of reasoning thus pursued by the lower court. We are not unaware of the undeniable fact that both petitions were not distinguished by skill in their drafting or precision in their terminology. Nonetheless the seriousness and gravity of the imputed failure to have the elections conducted freely and honestly, with such irregularities alleged, give rise to doubts, rational and honest, as to who were the duly elected officials. Such allegations, it is to be stressed, would have to be accepted at their face value for the purpose of determining whether there is a cause of action, a motion to dismiss amounting to a hypothetical admission of facts thus pleaded. We cannot in law and in conscience then sustain the order of dismissal.

Without the lower court having so intended, the dismissal would amount to judicial abnegation of a sworn duty to inquire into and pass upon in an appropriate proceeding allegations of misconduct and misdeeds of such character. Accordingly, we reverse.

Abes v. Commission on Elections 8 points the way, but the lower court was apparently impervious to its teaching. It may not be controlling, but it furnishes more than a hint. It would seem, though, that for the court below, its message did not ring out loud and clear.

The opinion in the Abes case, penned by Justice Sanchez, starts thus: "Petitioner's cry for relief, so their petition avers, is planted upon the constitutional mandate of free, orderly, and honest elections. Specifically, they list a number of repressible acts." Among those mentioned were that blank official registration forms were taken from the office of the Quezon City Comelec Register several weeks before election day, November 14, 1967; that active campaigning within the polling places by Nacionalista leaders or sympathizers of Nacionalista candidates were allowed; that voters were permitted to vote on mere mimeographed notices of certain Nacionalista candidates; that voters were compelled to fill their official ballots on open tables, desks and in many precincts outside the polling places; that thousands of voters sympathetic to the Nacionalista candidates were allowed to vote beyond the hours for voting allowed by law; that identification cards were delivered by partisan leaders of respondents Nacionalista candidates, and those who did not signify their preference for Nacionalista candidates were not given such cards; that the precinct books of voters were not sealed within the deadline fixed by law; and that the resulting effect of irregularities was to prevent full fifty-one per cent of the registered voters from voting.

One of the issues raised on the above facts is whether or not the Commission on Elections could annul the aforesaid election in Quezon City on the above allegations of fraud, terrorism and other illegal practices committed before and during the election. The petition did not prosper; it was dismissed. The remedy, we held, lay not with the Commission on Elections but with the courts of justice in an election protest.

In the language of Justice Sanchez: "The boundaries of the forbidden area into which Comelec may not tread are also marked by jurisprudence. That Comelec is not the proper forum to seek annulment of an election based on terrorism, frauds and other illegal practices, is a principle emphasized in decisions of this Court." For as announced in Nacionalista Party v. Commission on Elections, 9 assuming that there be a failure to conduct an election in a free, orderly and honest manner, "the duty to cure or remedy the resulting evil" did not rest with the Commission on Elections but in "some other agencies of the Government." More specifically, with reference to provincial and municipal officials, election contests "are entrusted to the courts." Then came this express affirmation: "The power to decide election contests necessarily includes the power to determine the validity or nullity of the votes questioned by either of the contestants." .

As so emphatically observed in the Abes opinion, "there has been neither deviation nor retreat from the foregoing pronouncement." After which came the following: "The ratiocination advanced that there was failure of election due to rampancy of terrorism, frauds, and other irregularities, before and during elections, such that allegedly about 51% of the registered voters were not able to vote, will not carry the day for petitioners. For, in the first place, this is grounded upon bare assertions. Respondents contest the correctness thereof. And in the answer of respondents Amoranto, Mathay and others, they aver that out of 162,457 registered voters in Quezon City, 100,382 voters actually cast their votes about 62% of the registered voters. But above all, as pointed out in City Board of Canvassers vs. Moscoso, [the] nullity of an election for municipal officials should be determined in a petition contesting the election of municipal officers-elect to be filed before the Court of First Instance."

Why an election protest is more fitly and appropriately the procedure for determining whether irregularities or serious violations of the electoral law vitiated the conduct of elections was clearly and succinctly explained in the Moscoso decision above cited, the opinion coming from Justice Makalintal. 10 Thus: "The question of whether or not there had been terrorism, vote-buying and other irregularities in the 1959 elections in Tacloban City should be ventilated in a regular election protest, pursuant to section 174 of the Election Code, and not in a petition to enjoin the city board of canvassers from canvassing the election returns and proclaiming the winning candidates for municipal offices."

It would follow then that if the grievance relied upon is the widespread irregularities and the flagrant violations of the election law, the proper remedy is the one availed of here, the protest.

That such should be the case should occasion no surprise. Time and time again, 11 we have stressed the importance of preserving inviolate the right of suffrage. If that right be disregarded or frittered away, then popular sovereignty becomes a myth.

As Justice Laurel correctly pointed out: "As long as popular government is an end to be achieved and safeguarded, suffrage, whatever may be the modality and form devised, must continue to be the means by which the great reservoir of power must be emptied into the receptacular agencies wrought by the people through their Constitution in the interest of good government and the common weal. Republicanism, in so far as it implies the adoption of a representative type of government, necessarily points to the enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the established authority." 12

A republic then to be true to its name requires that the government rests on the consent of the people, consent freely given, intelligently arrived at, honestly recorded, and thereafter counted. Only thus can they be really looked upon as the ultimate sources of established authority. It is their undeniable right to have officials of their unfettered choice. The election law has no justification except as a means for assuring a free, honest and orderly expression of their views. It is of the essence that corruption and irregularities should not be permitted to taint the electoral process.

It may not always be thus unfortunately. That should be the ideal however. If there be a failure to observe the mandates of the Election Code, the aggrieved parties should not be left remediless. Under the law as it stands, it is precisely an election protest that fitly serves that purpose.lawphi1.nt

It was sought to be thus utilized in these two cases, perhaps in a rather awkward and far from entirely satisfactory manner. Than itself is no reason for the courts to slam the door against any opportunity for redress. Yet, that is what would happen if the order of dismissal complained of were not set aside.

Hence the inevitability of its reversal. The scope of our decision must not be misinterpreted however. All that it directs is that the protetees in both cases be required to answer. Thereafter, if, as is not unlikely, there be a denial of the serious imputations made as to the alleged irregularities, the lower court could properly inquire into what actually transpired. After the facts are thus ascertained in accordance with the accepted procedural rules, then the appropriate law could be applied.

It must be clearly emphasized that we do not at this stage intimate any view as to the merit, or lack of it, of either protest. That would be premature to say the least. All we do is to set aside the order of dismissal.

WHEREFORE, the order of dismissal of March 23, 1968, is reversed and the two cases remanded to the lower court for proceeding and trial in accordance with this opinion and the law. Without costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Capistrano and Teehankee, JJ., concur.

Separate Opinions

BARREDO, J., concurring:

I concur whole-heartedly in everything contained in the ably written opinion of our distinguished colleague, Mr. Justice Fernando, including, of course, the disposition he makes therein of these cases before Us. It may not be amiss, nonetheless, to add a few words which I consider appropriate, in the light of my experience in handling some election cases before my appointment as Solicitor General.

The thing that has struck me most in these two cases, both denominated as election protests, is that the prayers of the two petitions therein are identical in that they do not ask for the seating of the petitioners, who call themselves protestants, in the places of the protestees-respondents. What they ask in the main is that "the proclamation of the protegees as duly elected (mayor and councilors) be set aside and declared null and void". This sole principal prayer was precisely what gave appellees in both cases cause to contend that (1) the Court of First Instance of Lanao del Sur had no jurisdiction over the subject matter, it being allegedly the Commission on Elections that has such jurisdiction, and (2) neither of the petitions state any cause of action. Of course, the trial court properly overruled the first ground. It is, however, best for all concerned that the observations and arguments adduced by the trial judge in disposing of the second ground are placed in proper light.

Ruling on the first ground above-stated, His Honor held thus:

Mere irregularities or misconduct on the part of election officers which do not tend to affect the result of the elections are not of themselves either ground for contest or for proper matters of inquiry... There is no allegation in the protest that the alleged irregularities committed by the election officers would tend to change the result of the election in favor of the protestants and against the protestees. There is no allegation in the petition that the 8,000 voters who failed to vote were all voters of protestants and the 8,300 illegal voters who voted were for the protetees. There is, therefore, no legal and practical justification for the court to inquire into the irregularities committed by the election officials, as alleged in the petition, for it would not give any benefit in favor of the protestants to the end that they will be declared the duly elected mayor and councilors, respectively, of this City.

The failure of election of officers to obey the mandatory provisions of a statute relating to the conduct of the election and designed to secure the secrecy and integrity of the ballot may so taint the votes with irregularity as to cause the rejection of the entire votes of the district. It should be remembered, however, that all statutes tending to limit the citizen in the exercise of the right of suffrage are to be construed liberally in his favor, and that the courts are loath to disfranchise voters who are wholly innocent of wrongdoing. As a consequence, it is a firmly established general rule that voters will not be rejected, even though election officers fail to comply with the directory provisions of a statute, if there is no fraud or other irregularity and failure to comply is unintentional; nor is it material in this connection that the failure of the election officers to perform their duty subjects them to penalties. Likewise, the courts will not permit the will of the voters to be defeated by fraud on the part of election officers if it is possible to avoid such a result. In short, a fair election and an honest return should be considered as paramount in importance to minor requirements which prescribe the formal steps to reach that end, and the law should be so construed as to remedy the evils against which its provisions are directed and at the same time not to disfranchise voters further than is necessary to attain that object. In case of a violation of the law on the part of an election officer, punishment may be provided therefor, and in this way the law can be rendered effectual without going to the extent of depriving a voter of his right to have his vote counted in consequence of such violation. It may, therefore, be stated as a general rule that if ballots are cast by voters who are, at the time, qualified to cast them and who have done all on their part that the law requires of voters to make their voting effective, an erroneous or even unlawful handling of the ballots by the election officers, charged with such responsibility will not be held to disfranchise such voters by throwing out their votes on account of erroneous procedure had sorely by the election officers, provided the votes are legal votes in their inception and are still capable of being given proper effect as such. Nor will an election be set aside because of regularities on the part of the election officials unless it appears that such irregularities affect the results. (18 Am. Jur. Sec. 225, pp. 331-332, cited on pp. 621-622, Revised Election Code by Francisco).

There is no allegation in the petition that the irregularities committed by the election officials have destroyed the secrecy and integrity of the ballots cast. There is no allegation in the petition that the non-compliance of the election officials of the provisions of the election laws regarding the registration of voters were intentional on their part for the purpose of committing frauds for the benefit of the protestees. There is no allegation in the petition that because of the alleged irregularities committed by the election officials in not following the provisions of the election laws regarding the registration of voters and the distribution of the precincts, that all the votes cast during said elections are illegal, nor is there an allegation in the protests that the irregularities committed by the election officials would affect the election in favor of protestees.

A misconduct or irregularity committed by an election official is not a sufficient ground to annul the votes cast in the precincts where the person elected neither knew of nor participated in the misconduct and it is not shown that any elector who voted or the persons elected either participated in such misconduct. (18 Am. Jur. Sec. 228, p. 333, cited on page 622, Revised Election Code by Francisco).

While this ruling is, on the whole, correct, His Honor failed to emphasize that the cases before him were precisely ones for the annulment and setting aside of the election for Mayor and Councilors in the City of Iligan and that, therefore, the only question that should be resolved is whether or not the facts alleged in the petitions in question constitute sufficient grounds for such relief. Instead, the trial court made as may be seen above, a long discourse on the thesis that "the purpose of an election contest is to correct the canvass," and that "the general rule is that whatever may be the cause of an election contest, the true gravamen of the case is to determine who receives the highest number of votes, etc." (pp. 5-8, Order in question) and then held that there was no allegation in both petitions that "would give any benefit in favor of the protestants to the end that they will be declared the duly elected mayor and councilors, respectively, of this City" ergo, the said petitions do not state any cause of action. More specifically, the trial court looked in vain for allegations to the effect that "the alleged irregularities committed by the elections in favor of the protestants and against the protestees." (p. 7, id.) For example, His Honor reasoned out that "there is no allegation ... that the 8,000 voters who failed to vote were all voters of protestants and the 8,300 illegal voters who voted were for the protetees." (id.).

I am afraid that such discourse, if quite impressive as an exposition of considerable learning in election law matters, is rather irrelevant. I believe that what should be emphasized in these cases is that ruling in Our decision to the effect that in an election protest, (otherwise entitled at times, petition or complaint or motion of protest) it is not necessary to allege that the true results of the election in question would be in favor of protestant and against protestee on the basis of the legal votes, or that the proclaimed result would be changed if the facts alleged are proven, when the sole ground of protest and the only purpose of the protestant is to have the whole election in a precinct or municipality annulled and set aside. Indeed, as pointed out in the brief of appellants:

In the case G.R. No. L-29333, the prayer is for the annulment of the proclamation of protestee-appellee Camilo P. Cabili and of the local elections held in Iligan City on November 14, 1967, while in case G.R. No. L-29334, the prayer is for the annulment of the proclamation of protestee-appellees Felix Z. Actub et al. and of the local elections held in Iligan City on November 14, 1967.

Section 177 of the Revised Election Code provides:

SEC. 177. Decision of the Contest. The court shall decide the protest ... and shall declare who among the parties has been elected, or in the proper case, that none of them has been legally elected....

Under the above-quoted provision of law, the courts are authorized to declare that none of the candidates has been legally elected, which in effect would mean that the elections are annulled.

If it were not the intention of the lawmaker not to authorize the courts to annul an election, such authority would not have been provided in Section 177 of the Revised Election Code quoted above.

Francisco, in his book How to Try Election Cases, 1952 Edition, p. 82, citing as authorities the decisions of this Honorable Court in Bustos vs. Moir and Fajardo 35 Phil. 16; and Manalo vs. Sevilla, 24 Phil. 609, states:

The court is authorized, in a proper case, not only to recount the ballots and reject those which it considers illegal and accept those which it considers valid but it is also authorized, in a proper case, to annul the election completely.

It is therefore clear that the trial court erred in holding that the purpose of the protestants in filing these protest is not in accord with the purpose of the Revised Election Code in allowing a defeated candidate to file an election protest.

In other words, I like to make it very clear that an election protest may be filed not only for the purpose of having the protestant declared elected, but even for the purpose alone of having the election annulled. Otherwise stated, protestants may come to court, not necessarily to win an election, but even if solely to have the court declare that no one has won because the election is void and that it is obvious and pure common sense that in the latter case, the protestant does not have to allege the probability of his being the real victor, for in such a case, his prayer precisely is that it be declared, using the language of the law, "that none of them has been legally elected." Surely, the following ruling of the trial court:

An election contest is a summary proceeding the object of which is to expedite the settlement of the controversy between candidates as to who received the majority of the legal ballots (Gardiner vs. Romulo, 26 Phil. 522, 524). The purpose of an election contest is to correct the canvass of which the proclamation is a public manifestation and the power granted by law to the court must agree with and be adequate to such an object. Hence, the court can directly declare which candidate is to be elected leaving the canvass made by the Board null and void, and the candidate so declared elected may assume position of the office (Aquino vs. Calebia & Sahagun, 55 Phil. 984). It being the policy of the law to give effect to elections, the general rule is that whatever may be the cause of an election contest, the true gravamen of the case is to determine who receives the highest number of votes (20 C.J. 217). 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. (Ibasco vs. Ilao, G.R. No. L-17512, December 29, 1960). Hence, only candidates have the right to file an election protest. (Gil Hermanos vs. Hord, 10 Phil. 217).

From the foregoing authorities, it could be concluded that the purpose of the election law to allow a candidate to file an election protest is for the court to determine whether the protestant or the protestee is the winner of the election under protest. In the present case, the object of the protestants in filing their protests based on the prayer of their petitions is not to declare them the duly elected mayor and councilors, respectively, of this City but merely to declare null and void the proclamation and election of the protestees as well as the elections held in Iligan City of November 14, 1967. The purpose, therefore of the protestants in filing these protests is not in accord with the purpose of the Revised Election Code in allowing a defeated candidate to file an election protest.

must be emphatically denounced as a misreading by His Honor of the real import of the authorities cited by Him. Such proposition represents the most narrow concept of the judicial remedies in matters of election. No single precedent in extant jurisprudence whether here or in any other country can be found to support it. I am equally confident that no thesis in any of the existing legal publications can be referred to as upholding such an illogical idea. To sanction such a ruling is to kill almost entirely all hopes for a clean, orderly and honest suffrage in this country, which the Commission on Elections alone may not be able to achieve in all possible cases. Indeed, as pointed out by appellants the trial court would have been right if it had only adhered to the decisions already rendered by this Court on the subject, cited by said appellants in their brief.

The real issue then in these cases is whether or not the facts alleged in the respective petitions of appellants constitute sufficient ground or grounds for annulment of the election of Mayor and Councilors in Iligan City, held in November, 1967. On this score, it has to be admitted that, indeed, the petitions of appellants which appear to have been prepared by a single counsel are not as accurately and precisely worded as to fit exactly into the pattern that may perhaps be most ideal in cases of this nature, but I cannot go along with His Honor's ruling that the allegations in said petitions are legally inadequate to serve as a basis for the relief of annulment of the election therein prayed for. His Honor seemed to be more concerned with what he considered the need for direct averments that the irregularities and violations of the election law alleged by appellants resulted in the destruction of the "secrecy and integrity of the ballot cast," that "all the votes cast in said elections are illegal" and that "the irregularities committed by the election officials would affect the election in favor of the protestees." (p. 8, id.) I feel that His Honor was asking too much and unnecessarily because, as they appear to me, these allegations as well as the others His Honor considered as indispensably required, are more in the nature of legal conclusions, not supposed to be averred in the pleadings, rather than statements of ultimate facts. The truth of the matter is that, viewed as a whole, the petitions in question sufficiently lead to the conclusion that what appellants are complaining about is that the elections held in Iligan City in November, 1967 were characterized by general and specific circumstances, that leave rational doubt as to whether or not the true will of the people of said City could be reflected in the proclaimed results. In the more polished and inimitable language of Mr. Justice Fernando, "... the seriousness and gravity of the imputed failure to have the elections conducted freely and honestly, with such irregularities alleged, give rise to doubts, rational and honest, as to who were the duly elected officials".

It is my considered opinion that while it is truly desirable that election protests should be discouraged where they have hardly any basis in fact or in law, the earlier to free from doubt the title to their respective offices of those chosen to direct the affairs of our government, whether national or local, thereby giving them the peace of mind and freedom of action gravely needed in the formulation of policies and the implementation thereof, courts should also be careful in seeing to it that their doors are not untimely shut to complaints regarding the commission of electoral frauds, irregularities and illegalities, the most despicable banes of popular suffrage, which though unhappily worded are fairly indicative of a situation wherein the will of the electorate has not been freely and clearly expressed. To my mind, the rule foIlowed in an unbroken line of decisions of this Court, to the effect that the commission of irregularities by election officials, no matter how serious, and the actual discovery of frauds and violations of law by either candidates or voters, are not in themselves sufficient to cause the annulment of an election unless so expressly provided by law, or that the frauds, illegalities and irregularities are so rampant and diffusive as to place the result of such election in grave doubt, is one that governs more the rendition of judgments in election cases and the evaluation of the circumstances surrounding the elections in question, as portrayed in the evidence already presented before the court, rather than as a strict criterion for determining whether a

complaint or petition or motion of protest sufficiently states a cause of action for annulment. Respecting contrary opinion others may entertain on the matter, I regard it as a sound rule that pleadings in election cases, at least, should not be subjected to such minute examination as should be done to facts duly established after proper hearing, if only because facts are unerring manifestations of the truth, while allegations in pleadings often suffer from the common flaws in the means of human expressions as well as from the usual imperfection of human language. If words are but children of thoughts, parents and offsprings not always, as among men and animals, look exactly alike. Pleadings in such cases must, therefore, be read with more liberality so as to make it difficult, if not impossible for grievances against the suppression in one form or another of the expression of the popular will, well-grounded in fact, may not be thrown out merely because of lack of skill and precision in the formulation of the corresponding protests. More importance should be given to the substantial matters sufficiently appearing in such pleadings as intended to be brought to the court for a remedy, than to the form, at times, ambiguous and often ungrammatically phrased, in which they are expressed. In any event, in case of doubt as to which should be done, such doubt must be resolved in giving due course to the protest, unless it is manifestly evident that the same has been filed for other than legitimate purposes.

As already indicated, my vote is for the reversal of the appealed order sustaining the motion to dismiss filed by appellees in the court below, because I agree with the decision herein of Mr. Justice Fernando that there are enough indications, within the four corners of the questioned petitions, of irregularities and illegalities which, if proven, may result in the annulment of the elections prayed for by appellants.

Footnotes

1L-29333.

2L-29334.

3Felix Z. Actub, Providencio P. Abragan, Manuel F. Celdran, Casimero P. Cabigon, and Benito Ong.

4Felix Z. Actub, Providencio P. Abragan, Manuel F. Celdran, Casimero P. Cabigon, and Benito Ong.

5Motion to Dismiss of Protestee Cabili.

6Order of the lower court of March 23, 1968, pp. 6-7.

7Ibid, p. 8.

8L-28348, December 15, 1967.

985 Phil. 149 (1949).

10City Board of Canvassers v. Moscoso, L-16365, September 30, 1963.

11Cf. Gardiner v. Romulo, 26 Phil. 521 (1914); Garchitorena v. Crescini, 39 Phil. 258 (1918); Cailles v. Gomez, 42 Phil. 496 (1921); Mandac v. Samonte, 49 Phil. 284 (1926); De Leon v. Cruz, 92 Phil. 403 (1952); Ticao v. Nanawa L-17890, August 30, 1962; and City Board of Canvassers v. Moscoso, L-16365, September 30, 1963.

12Moya v. Del Fierro, 69 Phil. 199, 204 (1939).

EN BANC

[G.R. No. 148334. January 21, 2004]

ARTURO M. TOLENTINO and ARTURO C. MOJICA, petitioners, vs. COMMISSION ON ELECTIONS, SENATOR RALPH G. RECTO and SENATOR GREGORIO B. HONASAN, respondents.

D E C I S I O N

CARPIO, J.:

The Case

This is a petition for prohibition to set aside Resolution No. NBC 01-005 dated 5 June 2001 (Resolution No. 01-005) and Resolution No. NBC 01-006 dated 20 July 2001 (Resolution No. 01-006) of respondent Commission on Elections (COMELEC). Resolution No. 01-005 proclaimed the 13 candidates elected as Senators in the 14 May 2001 elections while Resolution No. 01-006 declared official and final the ranking of the 13 Senators proclaimed in Resolution No. 01-005.

The Facts

Shortly after her succession to the Presidency in January 2001, President Gloria Macapagal-Arroyo nominated then Senator Teofisto T. Guingona, Jr. (Senator Guingona) as Vice-President. Congress confirmed the nomination of Senator Guingona who took his oath as Vice-President on 9 February 2001.

Following Senator Guingonas confirmation, the Senate on 8 February 2001 passed Resolution No. 84 (Resolution No. 84) certifying to the existence of a vacancy in the Senate. Resolution No. 84 called on COMELEC to fill the vacancy through a special election to be held simultaneously with the regular elections on 14 May 2001. Twelve Senators, with a 6-year term each, were due to be elected in that election.[1] Resolution No. 84 further provided that the Senatorial candidate garnering the 13thhighest number of votes shall serve only for the unexpired term of former Senator Teofisto T. Guingona, Jr., which ends on 30 June 2004.[2]

On 5 June 2001, after COMELEC had canvassed the election results from all the provinces but one (Lanao del Norte), COMELEC issued Resolution No. 01-005 provisionally proclaiming 13 candidates as the elected Senators. Resolution No. 01-005 also provided that the first twelve (12) Senators shall serve for a term of six (6) years and the thirteenth (13th) Senator shall serve the unexpired term of three (3) years of Senator Teofisto T. Guingona, Jr. who was appointed Vice-President.[3]Respondents Ralph Recto (Recto) and Gregorio Honasan (Honasan) ranked 12th and 13th, respectively, in Resolution No. 01-005.

On 20 June 2001, petitioners Arturo Tolentino and Arturo Mojica (petitioners), as voters and taxpayers, filed the instant petition for prohibition, impleading only COMELEC as respondent. Petitioners sought to enjoin COMELEC from proclaiming with finality the candidate for Senator receiving the 13th highest number of votes as the winner in the special election for a single three-year term seat. Accordingly, petitioners prayed for the nullification of Resolution No. 01-005 in so far as it makes a proclamation to such effect.

Petitioners contend that COMELEC issued Resolution No. 01-005 without jurisdiction because: (1) it failed to notify the electorate of the position to be filled in the special election as required under Section 2 of Republic Act No. 6645 (R.A. No. 6645);[4] (2) it failed to require senatorial candidates to indicate in their certificates of candidacy whether they seek election under the special or regular elections as allegedly required under Section 73 of Batas Pambansa Blg. 881;[5] and, consequently, (3) it failed to specify in the Voters Information Sheet the candidates seeking election under the special or regular senatorial elections as purportedly required under Section 4, paragraph 4 of Republic Act No. 6646 (R.A. No. 6646).[6] Petitioners add that because of these omissions, COMELEC canvassed all the votes cast for the senatorial candidates in the 14 May 2001 elections without distinction such that there were no two separate Senate elections held simultaneously but just a single election for thirteen seats, irrespective of term.[7]

Stated otherwise, petitioners claim that if held simultaneously, a special and a regular election must be distinguished in the documentation as well as in the canvassing of their results. To support their claim, petitioners cite the special elections simultaneously held with the regular elections of 13 November 1951 and 8 November 1955 to fill the seats vacated by Senators Fernando Lopez and Carlos P. Garcia, respectively, who became Vice-Presidents during their tenures in the Senate.[8] Petitioners point out that in those elections, COMELEC separately canvassed the votes cast for the senatorial candidates running under the regular elections from the votes cast for the candidates running under the special elections. COMELEC also separately proclaimed the winners in each of those elections.[9]

Petitioners sought the issuance of a temporary restraining order during the pendency of their petition.

Without issuing any restraining order, we required COMELEC to Comment on the petition.

On 20 July 2001, after COMELEC had canvassed the results from all the provinces, it issued Resolution No. 01-006 declaring official and final the ranking of the 13 Senators proclaimed in Resolution No. 01-005. The 13 Senators took their oaths of office on 23 July 2001.

In view of the issuance of Resolution No. 01-006, the Court required petitioners to file an amended petition impleading Recto and Honasan as additional respondents. Petitioners accordingly filed an amended petition in which they reiterated the contentions raised in their original petition and, in addition, sought the nullification of Resolution No. 01-006.

In their Comments, COMELEC, Honasan, and Recto all claim that a special election to fill the seat vacated by Senator Guingona was validly held on 14 May 2001.COMELEC and Honasan further raise preliminary issues on the mootness of the petition and on petitioners standing to litigate. Honasan also claims that the petition, which seeks the nullity of his proclamation as Senator, is actually a quo warranto petition and the Court should dismiss the same for lack of jurisdiction. For his part, Recto, as the 12th ranking Senator, contends he is not a proper party to this case because the petition only involves the validity of the proclamation of the 13th placer in the 14 May 2001 senatorial elections.

The Issues

The following are the issues presented for resolution:

(1) Procedurally

(a) whether the petition is in fact a petition for quo warranto over which the Senate Electoral Tribunal is the sole judge;

(b) whether the petition is moot; and

(c) whether petitioners have standing to litigate.

(2) On the merits, whether a special election to fill a vacant three-year term Senate seat was validly held on 14 May 2001.

The Ruling of the Court

The petition has no merit.

On the Preliminary Matters

The Nature of the Petition and the Courts Jurisdiction

A quo warranto proceeding is, among others, one to determine the right of a public officer in the exercise of his office and to oust him from its enjoyment if his claim is not well-founded.[10] Under Section 17, Article VI of the Constitution, the Senate Electoral Tribunal is the sole judge of all contests relating to the qualifications of the members of the Senate.

A perusal of the allegations contained in the instant petition shows, however, that what petitioners are questioning is the validity of the special election on 14 May 2001 in which Honasan was elected. Petitioners various prayers are, namely: (1) a declaration that no special election was held simultaneously with the general elections on 14 May 2001; (2) to enjoin COMELEC from declaring anyone as having won in the special election; and (3) to annul Resolution Nos. 01-005 and 01-006 in so far as these Resolutions proclaim Honasan as the winner in the special election. Petitioners anchor their prayers on COMELECs alleged failure to comply with certain requirements pertaining to the conduct of that special election. Clearly then, the petition does not seek to determine Honasans right in the exercise of his office as Senator. Petitioners prayer for the annulment of Honasans proclamation and, ultimately, election is merely incidental to petitioners cause of action. Consequently, the Court can properly exercise jurisdiction over the instant petition.

On the Mootness of the Petition

COMELEC contends that its proclamation on 5 June 2001 of the 13 Senators and its subsequent confirmation on 20 July 2001 of the ranking of the 13 Senators render the instant petition to set aside Resolutions Nos. 01-005 and 01-006 moot and academic.

Admittedly, the office of the writ of prohibition is to command a tribunal or board to desist from committing an act threatened to be done without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.[11] Consequently, the writ will not lie to enjoin acts already done.[12] However, as an exception to the rule on mootness, courts will decide a question otherwise moot if it is capable of repetition yet evading review.[13] Thus, in Alunan III v. Mirasol,[14] we took cognizance of a petition to set aside an order canceling the general elections for the Sangguniang Kabataan (SK) on 4 December 1992 despite that at the time the petition was filed, the SK election had already taken place. We noted in Alunan that since the question of the validity of the order sought to be annulled is likely to arise in every SK elections and yet the question may not be decided before the date of such elections, the mootness of the petition is no bar to its resolution. This observation squarely applies to the instant case. The question of the validity of a special election to fill a vacancy in the Senate in relation to COMELECs failure to comply with requirements on the conduct of such special election is likely to arise in every such election. Such question, however, may not be decided before the date of the election.

On Petitioners Standing

Honasan questions petitioners standing to bring the instant petition as taxpayers and voters because petitioners do not claim that COMELEC illegally disbursed public funds. Neither do petitioners claim that they sustained personal injury because of the issuance of Resolution Nos. 01-005 and 01-006.

Legal standing or locus standi refers to a personal and substantial interest in a case such that the party has sustained or will sustain direct injury because of the challenged governmental act.[15] The requirement of standing, which necessarily sharpens the presentation of issues,[16] relates to the constitutional mandate that this Court settle only actual cases or controversies.[17] Thus, generally, a party will be allowed to litigate only when (1) he can show that he has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable action.[18]

Applied strictly, the doctrine of standing to litigate will indeed bar the instant petition. In questioning, in their capacity as voters, the validity of the special election on 14 May 2001, petitioners assert a harm classified as a generalized grievance. This generalized grievance is shared in substantially equal measure by a large class of voters, if not all the voters, who voted in that election.[19] Neither have petitioners alleged, in their capacity as taxpayers, that the Court should give due course to the petition because in the special election held on 14 May 2001 tax money [was] x x x extracted and spent in violation of specific constitutional protections against abuses of legislative power or that there [was] misapplication of such funds by COMELEC or that public money [was] deflected to any improper purpose.[20]

On the other hand, we have relaxed the requirement on standing and exercised our discretion to give due course to voters suits involving the right of suffrage.[21] Also, in the recent case of Integrated Bar of the Philippines v. Zamora,[22] we gave the same liberal treatment to a petition filed by the Integrated Bar of the Philippines (IBP).The IBP questioned the validity of a Presidential directive deploying elements of the Philippine National Police and the Philippine Marines in Metro Manila to conduct patrols even though the IBP presented too general an interest. We held:

[T]he IBP primarily anchors its standing on its alleged responsibility to uphold the rule of law and the Constitution. Apart from this declaration, however, the IBP asserts no other basis in support of its locus standi. The mere invocation by the IBP of its duty to

preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general an interest which is shared by other groups and the whole citizenry x x x.

Having stated the foregoing, this Court has the discretion to take cognizance of a suit which does not satisfy the requirement of legal standing when paramount interest is involved. In not a few cases, the court has adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people. Thus, when the issues raised are of paramount importance to the public, the Court may brush aside technicalities of procedure. In this case, a reading of the petition shows that the IBP has advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents. Moreover, because peace and order are under constant threat and lawless violence occurs in increasing tempo, undoubtedly aggravated by the Mindanao insurgency problem, the legal controversy raised in the petition almost certainly will not go away. It will stare us in the face again. It, therefore, behooves the Court to relax the rules on standing and to resolve the issue now, rather than later.[23] (Emphasis supplied)

We accord the same treatment to petitioners in the instant case in their capacity as voters since they raise important issues involving their right of suffrage, considering that the issue raised in this petition is likely to arise again.

Whether a Special Election for a Single, Three-Year Term Senatorial Seat was Validly Held on 14 May 2001

Under Section 9, Article VI of the Constitution, a special election may be called to fill any vacancy in the Senate and the House of Representatives in the manner prescribed by law, thus:

In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term. (Emphasis supplied)

To implement this provision of the Constitution, Congress passed R.A. No. 6645, which provides in pertinent parts:

SECTION 1. In case a vacancy arises in the Senate at least eighteen (18) months or in the House of Representatives at least one (1) year before the next regular election for Members of Congress, the Commission on Elections, upon receipt of a resolution of the Senate or the House of Representatives, as the case may be, certifying to the existence of such vacancy and calling for a special election, shall hold a special election to fill such vacancy. If Congress is in recess, an official communication on the existence of the vacancy and call for a special election by the President of the Senate or by the Speaker of the House of Representatives, as the case may be, shall be sufficient for such purpose. The Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term.

SECTION 2. The Commission on Elections shall fix the date of the special election, which shall not be earlier than forty-five (45) days nor later than ninety (90) days from the date of such resolution or communication, stating among other things the office or offices to be voted for: Provided, however, That if within the said period a general election is scheduled to be held, the special election shall be held simultaneously with such general election. (Emphasis supplied)

Section 4 of Republic Act No. 7166 subsequently amended Section 2 of R.A. No. 6645, as follows:

Postponement, Failure of Election and Special Elections. x x x In case a permanent vacancy shall occur in the Senate or House of Representatives at least one (1) year before the expiration of the term, the Commission shall call and hold a special election to fill the vacancy not earlier than sixty (60) days nor longer than ninety (90) days after the occurrence of the vacancy.However, in case of such vacancy in the Senate, the special election shall be held simultaneously with the next succeeding regular election. (Emphasis supplied)

Thus, in case a vacancy arises in Congress at least one year before the expiration of the term, Section 2 of R.A. No. 6645, as amended, requires COMELEC: (1) to call a special election by fixing the date of the special election, which shall not be earlier than sixty (60) days nor later than ninety (90) after the occurrence of the vacancy but in case of a vacancy in the Senate, the special election shall be held simultaneously with the next succeeding regular election; and (2) to give notice to the voters of, among other things, the office or offices to be voted for.

Did COMELEC, in conducting the special senatorial election simultaneously with the 14 May 2001 regular elections, comply with the requirements in Section 2 of R.A. No. 6645?

A survey of COMELECs resolutions relating to the conduct of the 14 May 2001 elections reveals that they contain nothing which would amount to a compliance, either strict or substantial, with the requirements in Section 2 of R.A. No. 6645, as amended. Thus, nowhere in its resolutions[24] or even in its press releases[25] did COMELEC state that it would hold a special election for a single three-year term Senate seat simultaneously with the regular elections on 14 May 2001. Nor did COMELEC give formal notice that it would proclaim as winner the senatorial candidate receiving the 13th highest number of votes in the special election.

The controversy thus turns on whether COMELECs failure, assuming it did fail, to comply with the requirements in Section 2 of R.A. No. 6645, as amended, invalidated the conduct of the special senatorial election on 14 May 2001 and accordingly rendered Honasans proclamation as the winner in that special election void. More precisely, the question is whether the special election is invalid for lack of a call for such election and for lack of notice as to the office to be filled and the manner by which the winner in the special election is to be determined. For reasons stated below, the Court answers in the negative.

COMELECs Failure to Give Notice of the Time of the Special Election Did Not Negate the Calling of such Election

The calling of an election, that is, the giving notice of the time and place of its occurrence, whether made by the legislature directly or by the body with the duty to give such call, is indispensable to the elections validity.[26] In a general election, where the law fixes the date of the election, the election is valid without any call by the body charged to administer the election.[27]

In a special election to fill a vacancy, the rule is that a statute that expressly provides that an election to fill a vacancy shall be held at the next general elections fixes the date at which the special election is to be held and operates as the call for that election. Consequently, an election held at the time thus prescribed is not invalidated by the fact that the body charged by law with the duty of calling the election failed to do so.[28] This is because the right and duty to hold the election emanate from the statute and not from any call for the election by some authority[29] and the law thus charges voters with knowledge of the time and place of the election.[30]

Conversely, where the law does not fix the time and place for holding a special election but empowers some authority to fix the time and place after the happening of a condition precedent, the statutory provision on the giving of notice is considered mandatory, and failure to do so will render the election a nullity.[31]

In the instant case, Section 2 of R.A. No. 6645 itself provides that in case of vacancy in the Senate, the special election to fill such vacancy shall be held simultaneously with the next succeeding regular election. Accordingly, the special election to fill the vacancy in the Senate arising from Senator Guingonas appointment as Vice-President in February 2001 could not be held at any other time but must be held simultaneously with the next succeeding regular elections on 14 May 2001. The law charges the voters with knowledge of this statutory notice and COMELECs failure to give the additional notice did not negate the calling of such special election, much less invalidate it.

Our conclusion might be different had the present case involved a special election to fill a vacancy in the House of Representatives. In such a case, the holding of the special election is subject to a condition precedent, that is, the vacancy should take place at least one year before the expiration of the term. The time of the election is left to the discretion of COMELEC subject only to the limitation that it holds the special election within the range of time provided in Section 2 of R.A. No. 6645, as amended.This makes mandatory the requirement in Section 2 of R.A. No. 6645, as amended, for COMELEC to call x x x a special election x x x not earlier than 60 days nor longer than 90 days after the occurrence of the vacancy and give notice of the office to be filled. The COMELECs failure to so call and give notice will nullify any attempt to hold a special election to fill the vacancy. Indeed, it will be well-nigh impossible for the voters in the congressional district involved to know the time and place of the special election and the office to be filled unless the COMELEC so notifies them.

No Proof that COMELECs Failure to Give Notice of the Office to be Filled and the Manner of Determining the Winner in the Special Election Misled Voters

The test in determining the validity of a special election in relation to the failure to give notice of the special election is whether the want of notice has resulted in misleading a sufficient number of voters as would change the result of the special election. If the lack of official notice misled a substantial number of voters who wrongly believed that there was no special election to fill a vacancy, a choice by a small percentage of voters would be void.[32]

The required notice to the voters in the 14 May 2001 special senatorial election covers two matters. First, that COMELEC will hold a special election to fill a vacant single three-year term Senate seat simultaneously with the regular elections scheduled on the same date. Second, that COMELEC will proclaim as winner the senatorial candidate receiving the 13th highest number of votes in the special election. Petitioners have neither claimed nor proved that COMELECs failure to give this required notice misled a sufficient number of voters as would change the result of the special senatorial election or led them to believe that there was no such special election.

Instead, what petitioners did is conclude that since COMELEC failed to give such notice, no special election took place. This bare assertion carries no value. Section 2 of R.A. No. 6645, as amended, charged those who voted in the elections of 14 May 2001 with the knowledge that the vacancy in the Senate arising from Senator Guingonas appointment as Vice-President in February 2001 was to be filled in the next succeeding regular election of 14 May 2001. Similarly, the absence of formal notice from COMELEC does not preclude the possibility that the voters had actual notice of the special election, the office to be voted in that election, and the manner by which COMELEC would determine the winner. Such actual notice could come from many sources, such as media reports of the enactment of R.A. No. 6645 and election propaganda during the campaign.[33]

More than 10 million voters cast their votes in favor of Honasan, the party who stands most prejudiced by the instant petition. We simply cannot disenfranchise those who voted for Honasan, in the absence of proof that COMELECs omission prejudiced voters in the exercise of their right of suffrage so as to negate the holding of the special election. Indeed, this Court is loathe to annul elections and will only do so when it is impossible to distinguish what votes are lawful and what are unlawful, or to arrive at any certain result whatever, or that the great body of the voters have been prevented by violence, intimidation, and threats from exercising their franchise.[34]

Otherwise, the consistent rule has been to respect the electorates will and let the results of the election stand, despite irregularities that may have attended the conduct of the elections.[35] This is but to acknowledge the purpose and role of elections in a democratic society such as ours, which is:

to give the voters a direct participation in the affairs of their government, either in determining who shall be their public officials or in deciding some question of public interest; and for that purpose all of the legal voters should be permitted, unhampered and unmolested, to cast their ballot. When that is done and no frauds have been committed, the ballots should be counted and the election should not be declared null. Innocent voters should not be deprived of their participation in the affairs of their government for mere irregularities on the part of the election officers, for which they are in no way responsible. A different rule would make the manner and method of performing a public duty of greater importance than the duty itself.[36] (Emphasis in the original)

Separate Documentation and Canvassing not Required under Section 2 of R.A. No. 6645,

Neither is there basis in petitioners claim that the manner by which COMELEC conducted the special senatorial election on 14 May 2001 is a nullity because COMELEC failed to document separately the candidates and to canvass separately the votes cast for the special election. No such requirements exist in our election laws.What is mandatory under Section 2 of R.A. No. 6645 is that COMELEC fix the date of the election, if necessary, and state, among others, the office or offices to be voted for. Similarly, petitioners reliance on Section 73 of B.P. Blg. 881 on the filing of certificates of candidacy, and on Section 4(4) of R.A. No. 6646 on the printing of election returns and tally sheets, to support their claim is misplaced. These provisions govern elections in general and in no way require separate documentation of candidates or separate canvass of votes in a jointly held regular and special elections.

Significantly, the method adopted by COMELEC in conducting the special election on 14 May 2001 merely implemented the procedure specified by the Senate in Resolution No. 84. Initially, the original draft of Resolution No. 84 as introduced by Senator Francisco Tatad (Senator Tatad) made no mention of the manner by which the seat vacated by former Senator Guingona would be filled. However, upon the suggestion of Senator Raul Roco (Senator Roco), the Senate agreed to amend Resolution No. 84 by providing, as it now appears, that the senatorial candidate garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of former Senator Teofisto T. Guingona, Jr. Senator Roco introduced the amendment to spare COMELEC and the candidates needless expenditures and the voters further inconvenience, thus:

S[ENATOR] T[ATAD]. Mr. President, I move that we now consider Proposed Senate Resolution No. 934 [later converted to Resolution No. 84].

T[HE] P[RESIDENT]. Is there any objection? [Silence] There being none, the motion is approved.

Consideration of Proposed Senate Resolution No. 934 is now in order. With the permission of the Body, the Secretary will read only the title and text of the resolution.

T[HE] S[ECRETARY]. Proposed Senate Resolution No. 934 entitled

RESOLUTION CERTIFYING TO THE EXISTENCE OF A VACANCY IN THE SENATE AND CALLING ON THE COMMISSION ON ELECTIONS (COMELEC) TO FILL UP SUCH VACANCY THROUGH ELECTION TO BE HELD SIMULTANEOUSLY WITH THE REGULAR ELECTION ON MAY 14, 2001 AND THE SENATOR THUS ELECTED TO SERVE ONLY FOR THE UNEXPIRED TERM

WHEREAS, the Honorable Teofisto T. Guingona, Jr. was elected Senator of the Philippines in 1998 for a term which will expire on June 30, 2004;

WHEREAS, on February 6, 2001, Her Excellency President Gloria Macapagal Arroyo nominated Senator Guingona as Vice-President of the Philippines;

WHEREAS, the nomination of Senator Guingona has been confirmed by a majority vote of all the members of both House of Congress, voting separately;

WHEREAS, Senator Guingona will take his Oath of Office as Vice-President of the Philippines on February 9, 2001;

WHEREAS, Republic Act No. 7166 provides that the election for twelve (12) Senators, all elective Members of the House of Representatives, and all elective provincial city and municipal officials shall be held on the second Monday and every three years thereafter; Now, therefore, be it

RESOLVED by the Senate, as it is hereby resolved, to certify, as it hereby certifies, the existence of a vacancy in the Senate and calling the Commission on Elections (COMELEC) to fill up such vacancy through election to be held simultaneously with the regular election on May 14, 2001 and the Senator thus elected to serve only for the unexpired term.

Adopted,

(Sgd.) FRANCISCO S. TATAD Senator

S[ENATOR] T[ATAD]. Mr. President, I move for the adoption of this resolution.

S[ENATOR] O[SMEA] (J). Mr. President.

T[HE] P[RESIDENT]. Sen. John H. Osmea is recognized.

S[ENATOR] O[SMEA] (J). Thank you, Mr. President. Will the distinguished Majority Leader, Chairman of the Committee on Rules, author of this resolution, yield for a few questions?

S[ENATOR] T[ATAD]. With trepidation, Mr. President. [Laughter]

S[ENATOR] O[SMEA] (J). What a way of flattery. [Laughter]

Mr. President, I think I recall that sometime in 1951 or 1953, there was a special election for a vacant seat in the Senate. As a matter of fact, the one who was elected in that special election was then Congressman, later Senator Feli[s]berto Verano.

In that election, Mr. President, the candidates contested the seat. In other words, the electorate had to cast a vote for a ninth senator because at that time there were only eight to elect a member or rather, a candidate to that particular seat.

Then I remember, Mr. President, that when we ran after the EDSA revolution, twice there were 24 candidates and the first 12 were elected to a six-year term and the next 12 were elected to a three-year term.

My question therefore is, how is this going to be done in this election? Is the candidate with the 13th largest number of votes going to be the one to take a three-year term? Or is there going to be an election for a position of senator for the unexpired term of Sen. Teofisto Guingona?

S[ENATOR] T[ATAD]. Mr. President, in this resolution, we are leaving the mechanics to the Commission on Elections. But personally, I would like to suggest that probably, the candidate obtaining the 13th largest number of votes be declared as elected to fill up the unexpired term of Senator Guingona.

S[ENATOR] O[SMEA] (J). Is there a law that would allow the Comelec to conduct such an election? Is it not the case that the vacancy is for a specific office? I am really at a loss. I am rising here because I think it is something that we should consider. I do not know if we can No, this is not a Concurrent Resolution.

S[ENATOR] T[ATAD]. May we solicit the legal wisdom of the Senate President.

T[HE] P[RESIDENT]. May I share this information that under Republic Act No. 6645, what is needed is a resolution of this Chamber calling attention to the need for the holding of a special election to fill up the vacancy created, in this particular case, by the appointment of our colleague, Senator Guingona, as Vice President.

It can be managed in the Commission on Elections so that a slot for the particular candidate to fill up would be that reserved for Mr. Guingonas unexpired term. In other words, it can be arranged in such a manner.

x x x x

S[ENATOR] R[OCO]. Mr. President.

T[HE] P[RESIDENT]. Sen. Raul S. Roco is recognized.

S[ENATOR] R[OCO]. May we suggest, subject to a one-minute caucus, wordings to the effect that in the simultaneous elections, the 13th placer be therefore deemed to be the special election for this purpose. So we just nominate 13 and it is good for our colleagues. It is better for the candidates. It is also less expensive because the ballot will be printed and there will be less disfranchisement.

T[HE] P[RESIDENT]. That is right.

S[ENATOR] R[OCO]. If we can just deem it therefore under this resolution to be such a special election, maybe, we satisfy the requirement of the law.

T[HE] P[RESIDENT]. Yes. In other words, this shall be a guidance for the Comelec.

S[ENATOR] R[OCO]. Yes.

T[HE] P[RESIDENT]. to implement.

S[ENATOR] R[OCO]. Yes. The Comelec will not have the flexibility.

T[HE] P[RESIDENT]. That is right.

S[ENATOR] R[OCO]. We will already consider the 13th placer of the forthcoming elections that will be held simultaneously as a special election under this law as we understand it.

T[HE] P[RESIDENT]. Yes. That will be a good compromise, Senator Roco.

S[ENATOR] R[OCO]. Yes. So if the sponsor can introduce that later, maybe it will be better, Mr. President.

T[HE] P[RESIDENT]. What does the sponsor say?

S[ENATOR] T[ATAD]. Mr. President, that is a most satisfactory proposal because I do not believe that there will be anyone running specifically

T[HE] P[RESIDENT]. Correct.

S[ENATOR] T[ATAD]. to fill up this position for three years and campaigning nationwide.

T[HE] P[RESIDENT]. Actually, I think what is going to happen is the 13th candidate will be running with specific groups.

S[ENATOR] T[ATAD]. Yes. Whoever gets No. 13.

T[HE] P[RESIDENT]. I think we can specifically define that as the intent of this resolution.

S[ENATOR] T[ATAD]. Subject to style, we accept that amendment and if there will be no other amendment, I move for the adoption of this resolution.

x x x x

ADOPTION OF S. RES. NO. 934

If there are no other proposed amendments, I move that we adopt this resolution.

T[HE] P[RESIDENT]. There is a motion to adopt this resolution. Is there any objection? [Silence] There being none, the motion is approved.[37]

Evidently, COMELEC, in the exercise of its discretion to use means and methods to conduct the special election within the confines of R.A. No. 6645, merely chose to adopt the Senates proposal, as embodied in Resolution No. 84. This Court has consistently acknowledged and affirmed COMELECs wide latitude of discretion in adopting means to carry out its mandate of ensuring free, orderly, and honest elections subject only to the limitation that the means so adopted are not illegal or do not constitute grave abuse of discretion.[38] COMELECs decision to abandon the means it employed in the 13 November 1951 and 8 November 1955 special elections and adopt the method embodied in Resolution No. 84 is but a legitimate exercise of its discretion. Conversely, this Court will not interfere should COMELEC, in subsequent special senatorial elections, choose to revert to the means it followed in the 13 November 1951 and 8 November 1955 elections. That COMELEC adopts means that are novel or even disagreeable is no reason to adjudge it liable for grave abuse of discretion. As we have earlier noted:

The Commission on Elections is a constitutional body. It is intended to play a distinct and important part in our scheme of government. In the discharge of its functions, it should not be hampered with restrictions that would be fully warranted in the case of a less responsible organization. The Commission may err, so may this Court also. It should be allowed considerable latitude in devising means and methods that will insure the accomplishment of the great objective for which it was created free, orderly and honest elections. We may not agree fully with its choice of means, but unless these are clearly illegal or constitute gross abuse of discretion, this court should not interfere.[39]

A Word to COMELEC

The calling of a special election, if necessary, and the giving of notice to the electorate of necessary information regarding a special election, are central to an informed exercise of the right of suffrage. While the circumstances attendant to the present case have led us to conclude that COMELECs failure to so call and give notice did not invalidate the special senatorial election held on 14 May 2001, COMELEC should not take chances in future elections. We remind COMELEC to comply strictly with all the requirements under applicable laws relative to the conduct of regular elections in general and special elections in particular.

WHEREFORE, we DISMISS the petition for lack of merit.

SO ORDERED.

Panganiban, Quisumbing, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur. Davide, Jr., C.J., joins Mr. Justice Puno in his dissent. Puno, J., please see dissenting opinion. Vitug, J., joins the dissent. Ynares-Santiago, J., joins J. Punos dissent. Tinga, J., joins Justice Punos dissent.

[1] As provided under Section 2 of Republic