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19. JS filed a petition with the COMELEC against SM and the proclaimed Vice-Mayor and Municipal Councilors, as well as the members of the Municipal Board of Canvassers, to annul the elections and the proclamation of candidates in the Municipality of Saguiaran. JS alleged that there was a

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massive substitution of voters, rampant and pervasive irregularities in voting procedures in Precincts Nos. 19, 20, 28 and 29, and a failure of the Board of Election Inspectors (BEI) to comply with Sections 28 and 29 of COMELEC Resolution No. 3743 and Section 193 of the Omnibus Election Code, thus rendering the election process in those precincts a sham and a mockery and the proclamation of the winning candidates a nullity. In his answer, SM denied the truth of the material allegations in the petition and averred that it raised a pre-proclamation controversy. SM further alleged that the grounds relied upon by JS would be proper in an election protest but not in a pre-proclamation controversy. The COMELEC En Banc took cognizance of the petition and issued an order directing the Election Officer of Saguiran, to bring to and produce before the COMELEC Office in Manila the original VRRs of the questioned precincts for technical examination. In the same order, the COMELEC declared that contrary to petitioner's claims, the petition did not allege a pre-proclamation controversy. The Commission characterized the petition as one for the annulment of the election or declaration of failure of election in the municipality, a special action covered by Rule 26 of the COMELEC Rules of Procedure. Accordingly, the COMELEC set aside the docketing of the petition as a Special Case (SPC) and ordered the re-docketing thereof as a Special Action (SPA). After its examination of the evidence submitted by JS, the COMELEC concluded that there was convincing proof of massive fraud in the conduct of the elections in the four (4) precincts that necessitated a technical examination of the original copies of the VRRs and their comparison with the voters' signatures and fingerprints. SM filed with the SC the instant special civil action for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, praying for the reversal of the order of the COMELEC En Banc. (a) whether or not SM’s recourse to SC under Rule 65 is in order; and (b) whether or not the petition filed by JS with the COMELEC is a pre-proclamation controversy or a petition for the declaration of failure of election.

(a) YES. The assailed order of the COMELEC declaring JS’s petition to be one for annulment of the elections or for a declaration of a failure of elections in the municipality and ordering the production of the original copies of the VRRs for the technical examination is administrative in nature. Rule 64, a procedural device for the review of final orders, resolutions or decision of the COMELEC, does not foreclose recourse to this Court under Rule 65 from administrative orders of said Commission issued in the exercise of its administrative function.

As a general rule, an administrative order of the COMELEC is not a proper subject of a special civil action for certiorari. But when the COMELEC acts capriciously or whimsically, with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing such an order, the aggrieved party may seek redress from this Court via a special civil action for certiorari under Rule 65 of the Rules.

(b) NO. The petition before the COMELEC does not pose a pre-proclamation controversy. Pre-proclamation controversies are properly limited to challenges directed against the Board of Canvassers and proceedings before said Board relating to particular election returns to which private respondent should have made specific verbal objections subsequently reduced to writing. The proceedings are summary in nature; thus, the reception of evidence aliunde, e.g.

the original copies of the VRRs, is proscribed. In fine, in pre-proclamation proceedings, the COMELEC is not to look beyond or behind election returns which are on their face regular and authentic returns. Issues such as fraud or terrorism attendant to the election process, the resolution of which would compel or necessitate the COMELEC to pierce the veil of election returns which appear to be prima facie regular, on their face, are anathema to a pre-proclamation controversy. Such issues should be posed and resolved in a regular election protest within the original jurisdiction of the Regional Trial Court. For, whenever irregularities, such as fraud, are asserted, the proper course of action is an election protest.

Neither is private respondent's petition before the COMELEC one for declaration of a failure of elections. While fraud is a ground to declare a failure of election, such fraud must be one that prevents or suspends the holding of an election, including the preparation and transmission of the election returns. "Failure to elect" must be understood in its literal sense — which is, nobody emerges as a winner. (MACABAGO vs. COMELEC, G.R. No. 152163. November 18, 2002) 20. On May 9, 1996, B filed an election protest with the 13th MCTC Loay, Bohol. However, B failed to append to her election protest a certification of non-forum shopping as mandated by Supreme Court Administrative Circular No. 04-94. On May 20, 1996, petitioner submitted to the court the requisite Certification of Non-Forum Shopping and filed an opposition to the motion to dismiss filed

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by C claiming that her failure to comply with Supreme Court Administrative Circular No. 04-94 was merely a technical deficiency. The MCTC granted the motion to dismiss of C and dismiss the election protest of B. The latter filed a motion for reconsideration of said order, insisting that the failure to submit the requisite certification on non-forum shopping had already been cured when the requisite certification was filed on May 20, 1996 but the MCTC denied the motion. B filed with the RTC a Petition for Certiorari, Prohibition and Mandamus, for the nullification of the aforesaid orders of the MCTC. RTC dismissed the petition and denied the motion for reconsideration. 1) Did MCTC err in dismissing the election protest because it has substantially comply with the requirements of Administrative Circular 04-09. 2) Was the proper remedy from the assailed orders of the MCTC a petition for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court instead of an appeal to the COMELEC.

1. NO. Petitioner's reliance of the pronouncement of this Court in Loyola vs. Court of Appeals, et al., is misplaced. In said case, the protestant submitted the requisite certification within the ten-day period for the filing of an election protest. In this case, petitioner submitted to the MCTC the requisite certification only on May 20, 1996, long after the lapse of the ten-day period for her to file an election protest. The submission by petitioner of the requisite certificate after the reglementary ten-day period for the filing of an election protest did not operate as a substantial compliance with the Circular.

2. NO. The RTC correctly dismissed the petition for certiorari for the added reason that it had no appellate jurisdiction over said petition. Section 49 of Resolution No. 2824 of the COMELEC governing the barangay elections on May 6, 1996, promulgated on February 6, 1996, provides that the COMELEC has appellate jurisdiction over decisions of the MCTC or MTC on election protests. MCTC did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in dismissing the protest for her failure to comply with Administrative Circular 04-09. (BATOY vs RTC, G.R. No. 126833. February 17, 2003).

21. A criminal complaint for violation of Section 261 (a) of the Omnibus Election Code (vote selling) was filed against the witnesses of Florentino A. Bautista. The Office of the Cavite Provincial Prosecutor conducted a preliminary investigation of the complaint, in his capacity as a deputy of the petitioner. On April 10, 2000, the Office of the Cavite Provincial Prosecutor issued a resolution finding probable cause against the respondents for violations of Section 261 (a) and (b) of the Omnibus Election Code, and filed separate Informations against them with the RTC of Cavite.

COMELEC, after due deliberation, resolved to defer the action and referred the same to the Law Department for comment and recommendation. However, the Provincial Prosecutor refused to give way to the Legal Officer of the petitioner and even opposed the said motion. Was the action of the Provincial Prosecutor correct?

NO. Under Article IX, Section 2(b) of the Constitution, the petitioner is empowered to investigate and, when appropriate, prosecute election offenses. The grant by the Constitution to the petitioner of the express power to investigate and prosecute election offenses is intended to enable the petitioner to assure the people of a fine, orderly, honest, peaceful and credible election. Under Section 265 of the Omnibus Election Code, the petitioner, through its duly authorized legal officers, has the exclusive power to conduct preliminary investigation of all election offenses punishable under the Omnibus Election Code, and to prosecute the same.

The petitioner may avail of the assistance of the prosecuting arms of the government.

The prosecutors deputized by the petitioner are subject to its authority, control and supervision in respect of the particular functions covered by such deputation. The acts of such deputies within the lawful scope of their delegated authority are, in legal contemplation, the acts of the petitioner itself. Such authority may be revoked or withdrawn any time by the petitioner, either expressly or impliedly, when in its judgment such revocation or withdrawal is necessary to protect the integrity of the process to promote the common good, or where it believes that successful prosecution of the case can be done by the petitioner. Moreover, being mere deputies or agents of the petitioner, provincial or city prosecutors deputized by the petitioner are expected to act in accord with and not contrary to or in derogation of the resolutions, directives or orders of the petitioner in relation to election cases such prosecutors are deputized to investigate and prosecute. Otherwise, the only option of such provincial or city prosecutor is to seek relief from the petitioner as its deputy. (COMELEC vs. HON.

ESPANOL, G.R. NO. 149164-73, December 10, 2003)

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22. Arsenio Latasa was elected mayor of the Municipality of Digos, Davao del Sur in the elections of 1992, 1995 and 1998. During his third term, the Municipality of Digos was declared a component city, to be known as the City of Digos. This event also marked the end of petitioner's tenure as mayor of the Municipality of Digos. However, under Section 53, Article IX of the Charter, petitioner was mandated to serve in a hold-over capacity as mayor of the new City of Digos. Hence, he took his oath as the city mayor.

On February 28, 2001, petitioner filed his certificate of candidacy for city mayor for the May 14, 2001 elections. He stated therein that he is eligible therefor, and likewise disclosed that he had already served for three consecutive terms as mayor of the Municipality of Digos and is now running for the first time for the position of city mayor. Private respondent Romeo M. Sunga, also a candidate for city mayor in the said elections, filed before the COMELEC a Petition to Deny Due Course, Cancel Certificate of Candidacy and/or For Disqualification against petitioner Latasa Sunga alleging therein that petitioner falsely represented in his certificate of candidacy that he is eligible to run as mayor of Digos City since petitioner had already been elected and served for three consecutive terms as mayor from 1992 to 2001.

a. Is petitioner Latasa disqualified from running as City Mayor?

b. Who must be proclaimed City Mayor?

a. YES. Although the new city acquired a new corporate existence separate and distinct from that of the municipality. This does not mean, however, that for the purpose of applying the subject Constitutional provision, the office of the municipal mayor would now be construed as a different local government post as that of the office of the city mayor. As stated earlier, the territorial jurisdiction of the City of Digos is the same as that of the municipality.

Consequently, the inhabitants of the municipality are the same as those in the city. These inhabitants are the same group of voters who elected petitioner Latasa to be their municipal mayor for three consecutive terms. These are also the same inhabitants over whom he held power and authority as their chief executive for nine years.

b. This Court has consistently ruled that the fact that a plurality or a majority of the votes are cast for an ineligible candidate at a popular election, or that a candidate is later declared to be disqualified to hold office, does not entitle the candidate who garnered the second highest number of votes to be declared elected. The same merely results in making the winning candidate's election a nullity. In the present case, moreover, 13,650 votes were cast for private respondent Sunga as against the 25,335 votes cast for petitioner Latasa. The second placer is obviously not the choice of the people in that particular election. In any event, a permanent vacancy in the contested office is thereby created which should be filled by succession. (LATASA vs. COMELEC, G.R. NO. 154829, December 10, 2003)

23. AT filed a petition to declare failure of elections in all the precincts in the Municipality of Luuk, Province of Sulu. Acting on said motion, COMELEC issued an order suspending the proclamation of the winning candidates. However, the Provincial Board of Canvassers was not served with a copy of the order. Consequently, the respondents were proclaimed as the winning candidates for the position of Governor, Vice-Governor and Board Members. Is there a basis for filing an action for failure of elections?

NO. In their amended petitions before the public respondent, it was substantially alleged that the respondents were the duly proclaimed winning candidates; that the elections in the Municipalities of Luuk, Parang and Indanan, Province of Sulu, were marred by massive substitution of voters, fraud, terrorism and other anomalies, impelling them to file their petitions pursuant to Section 4 of Rep. Act No. 7166 in relation to Section 6, Omnibus Election Code, and reiterated in Section 2, Rule 26 26 of the 1993 COMELEC Rules of Procedure, as amended. But Section 6 of the Omnibus Election Code lays down three instances where a failure of election may be declared, namely, (1) 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; (2) the election in any polling place has 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 (3) 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

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cases. In all instances there must have been a failure to elect. This is obvious in the first two scenarios, where the election was not held and where the election was suspended. As to the third scenario, the preparation and the transmission of the election returns, which give rise to the consequence of failure to elect, must as aforesaid be literally interpreted to mean that

"nobody emerged as a winner."

Hence, before the COMELEC can act on a verified petition seeking to declare a failure of elections, two conditions must concur, namely, (1) no voting took place in the precinct or precincts on the date fixed by law, or even if there was voting, the election resulted in a failure to elect; and (2) the votes not cast would have affected the result of the election. Note that the cause of such failure of election could only be any of the following: force majeure, violence, terrorism, fraud or other analogous causes. (TAN vs. COMELEC, G.R. NO. 148575-76, December 10, 2003)

24. During the May 14, 2001 elections, Bai Susan A. Samad, Salipongan I. Dagloc and Kennedy Dilangalen were among the mayoralty candidates in the Municipality of Kabuntalan, Province of Maguindanao. During the canvassing of the election returns for the Municipality of Kabuntalan, Samad, Dagloc and Dilangalen filed their respective objections and oppositions to the inclusion or exclusion from the canvass of certain election returns from several precincts. Samad contested the inclusion of the election returns from all of Brgy. Bagumbayan, on the grounds that: (a) the returns were tampered and falsified, and (b) the returns were prepared under duress, threats, coercion and intimidation. COMELEC in its resolution invalidated the Certificate of Canvass. Is the action of COMLELEC proper?

NO. The policy consideration underlying the delimitation of both substantive ground and legal procedure is the policy to determine as quickly as possible the result of the election on the basis of the canvass. The prevailing doctrine in this jurisdiction, therefore, is that as long as the returns appear to be authentic, and duly accomplished on their face, the Board of Canvassers cannot look beyond or behind them to verify allegations of irregularities in the casting and counting of the votes.

Outright exclusion of election returns on the ground that they were fraudulently prepared by some members or non-members of the BEI disenfranchises the voters. Hence, when election returns are found to be spurious or falsified, Section 235 of the Omnibus Election Code provides the procedure which enables the COMELEC to ascertain the will of the electorate.

The COMELEC, therefore, gravely abused its discretion when it excluded outright the subject election returns after finding that they were fraudulent returns. Instead, the COMELEC should have followed the procedure laid down in Section 235 of the Omnibus Election Code: ". . . The Commission shall then, after giving notice to all candidates concerned and after satisfying itself that nothing in the ballot box indicate that its identity and integrity have been violated, order the opening of the ballot box and, likewise after satisfying itself that the integrity of the ballots therein has been duly preserved shall order the board of election inspectors to recount the votes of the candidates affected and prepare a new return which shall then be used by the board of canvassers as basis of the canvass." (DAGLOC vs. COMELEC, GR NO 154442-47, December 10, 2003)

25. The petitioners and the private respondents in the case are candidates for the members of the Sangguniang ng Bayan elections in Palimbang, Sultan, Kudarat. On May 20, 2001, the Municipal Board of Canvasser of Palimbang issued Certificate of Canvass of Votes and Proclamation (COCVP) No. 8031108 which contained, inter alia, the petitioners as winners. The said candidates took their oath, and assumed their offices on June 30, 2001 4 as members of the Sangguniang Bayan of Palimbang.

The next day, May 21, 2001, the Municipal Board of Canvassers of Palimbang issued COCVP No. 8031109 which listed the private respondents as winners. The matter was then investigated and resolved the issue finding that the private respondents were the winning candidates. The

The next day, May 21, 2001, the Municipal Board of Canvassers of Palimbang issued COCVP No. 8031109 which listed the private respondents as winners. The matter was then investigated and resolved the issue finding that the private respondents were the winning candidates. The