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Second.
Petitioner argues that it was error on
the part of public respondent COMELEC to suspend the effects of
petitioner's election as it would create a hiatus in government service.
According to the petition, "It will be totally unfair to petitioner
and the rest of the electorate of Matanog, Maguindanao to be deprived of a
Mayor just because of the indecisiveness and inaction of respondent
COMELEC on the issue of whether or not to hold special election in these
fourteen (14) precincts."20
[Rollo, p. 5.] Petitioner's argument lacks merit. While it may be true that Matanog will be temporarily deprived of a mayor, greater unfairness would result if the voters were disenfranchised. A greater evil occurs when one not properly voted for sits in a position of power without the clear mandate of the people. Jurisprudence provides that all votes cast in an election must be considered, otherwise voters shall be disenfranchised.21 [Mutuc v. Commission on Elections, 22 SCRA 662 (1968)] A canvass cannot be reflective of the true vote of the electorate unless and until all returns are considered and none is omitted.22 [Datu Sinsuat v. Pendatun, 33 SCRA 630 (1970)] In this case, fourteen (14) precincts were omitted in the canvassing. Even the hiatus which would allegedly result is imagined. The Local Government Code provides a solution in case of a temporary vacancy in the office of the mayor.23 [Section 46 (a) of the Local Government Code provides, "When the governor, city or municipal mayor or punong barangay is temporarily incapacitated to perform his duties for physical or legal reasons such as but not limited to, leave of absence, travel abroad, and suspension from office, the vice governor, city or municipal vice mayor, or the highest ranking sangguniang barangay member shall automatically exercise the powers and perform the duties and functions of the local chief executive concerned, except the power to appoint, suspend, or dismiss employees which can only be exercised if the period of temporary incapacity exceeds thirty (30) working days.] This provision may be applied in this case of a temporary suspension of the effects and consequences of petitioner's proclamation as Mayor of Matanog, Maguindanao. Hence, we find no grave abuse in the COMELEC's suspension of petitioner's proclamation. XXX Third.
Petitioner contends that the COMELEC had no jurisdiction to order
petitioner to "cease and desist" from taking his oath of office
as Mayor of Matanog considering that there was no pending pre-proclamation
issue. Rtc-spped Records show that on May 16, 1998 a certification
was issued by the Office of the Election Officer, Matanog, Maguindanao,
stating:24
[Rollo, p. 87.] "Considering the number of voters whose precincts failed to function will materially affect the total results of elections, NO proclamation will be made until such time proper and legal to do so." Despite the certification, the municipal board of canvassers proceeded to proclaim petitioner as the mayoral winner. At the time the proclamation was made, the
COMELEC had not yet resolved the Petition for Canvassing of Votes and
Petition for Special Elections filed on May 22, 1998. Pursuant to Sections
24525 ["...The
board of canvassers shall not proclaim any candidate as winner unless
authorized by the Commission after the latter has ruled on the objections
brought to it on appeal by the losing party and any proclamation made in
violation hereof shall be void ab initio, unless the contested
returns will not adversely affect the results of the election."]
and 23826 ["If, after the
canvass of all the said returns, it should be determined that the returns
which have been set aside will affect the result of the election, no
proclamation shall be made except upon orders of the Commission after due
notice and hearing. Any proclamation made in violation hereof shall be
null and void."] of the Omnibus Election
Code, the Board of Canvassers should not have proclaimed any candidate
absent the authorization from the COMELEC. Any proclamation made under
such circumstances is void ab initio.27 [Ramon
D. Duremdes v. Commission on Elections, 178 SCRA 747 (1989)] An incomplete canvass of votes is illegal and
cannot be the basis of a subsequent proclamation.28
[Datu Sukarno Samad v. Commission on Elections, 224 SCRA 631, 642
(1993)] A canvass cannot be reflective of the
true vote of the electorate unless all returns are considered and none is
omitted.29
[Duremdes v. Commission on Elections, 178 SCRA 746 (1989)] This
is true when the election returns missing or not counted will affect the
results of the election.30 [Emilio Caruncho III v. Commission on Elections, et al.,
G.R. No.135996, September 30, 1999.] We note that the votes of petitioner totaled one
thousand nine hundred and sixty one (1,961) while private respondent
garnered a total of one thousand nine hundred thirty (1,930) votes. The
difference was only thirty-one (31) votes. There were fourteen (14)
precincts31 [The fourteen
(14) precincts unaccounted for consisted of:
unaccounted for whose total number of
registered voters are two thousand three hundred and forty eight (2,348).32
[Rollo, p. 47.] Surely, these votes will affect the result of
the election. Consequently, the non-inclusion of the 14 precincts in the
counting disenfranchised the voters. Scl-aw
En Banc, Ynares-Santiago, NASSER IMMAM, petitioner, vs. COMMISSION ON ELECTIONS and HADJI YUSOPH LIDASAN, respondents [G.R. No. 134167. January 20, 2000]
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CCHOPE ELECTION
2001 
