CCHOPE ELECTION 2001

POSTPONEMENT, FAILURE AND SPECIAL ELECTION 

If the special election and counting of ballots were to be held only for the position of mayor, then unfairness would result. In Tupay T. Loong v. Commission in Elections and Abdusakur Tan,19 [G.R. No. 133676, April 14, 1999.] we held that a special election only for the position of Governor cannot be sanctioned since other officials already serving their terms were proclaimed on the basis of the same manually counted votes. Thus, to hold a special election only for one position would be discriminatory and violative of the private respondent's right to equal protection of the laws. Such is not the case here.

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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In support of his cause, petitioner insists on a strict compliance with the holding of special elections not later than thirty (30) days after failure to elect pursuant to Section 6 of the Omnibus Election Code which provides that:

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

Petitioner argues that the above-quoted provision is mandatory because of the word "shall." He further asserts that the prescribed time frame actually ‘delimits’ COMELEC’s authority to call for a special election and that instead, the power to call for a special election after the 30th day now resides in Congress.

The provision invoked can not be construed in the manner as argued by petitioner for it would defeat the purpose and spirit for which the law was enacted.

It is a basic precept in statutory construction that a statute should be interpreted in harmony with the Constitution and that the spirit, rather than the letter of the law determines its construction; for that reason, a statute must be read according to its spirit and intent.4 [Paras v. COMELEC, 264 SCRA 49 (1996), citing PLDT v. Collector of Internal Revenue, 90 Phil. 674 (1952)] Thus, a too literal interpretation of the law that would lead to absurdity prompted this Court to –

"…[a]dmonish against a too–literal reading of the law as this is apt to constrict rather than fulfill its purpose and defeat the intention of its authors. That intention is usually found not in ‘the letter that killeth but in the spirit that vivifieth’ xxx"5 [Paras v. COMELEC, supra, p. 55, citing People v. Salas, 143 SCRA 163 (1986)]

Section 2 (1) of Article IX (C) of the Constitution gives the COMELEC the broad power to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall." There can hardly be any doubt that the text and intent of this constitutional provision is to give COMELEC all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful and credible elections.

Pursuant to this intent, this Court has been liberal in defining the parameters of the COMELEC’s powers in conducting elections. As stated in the old but nevertheless still very much applicable case of Sumulong v. COMELEC:6 [73 Phil. 288 (1941)]

"Politics is a practical matter, and political questions must be dealt with realistically – not from the standpoint of pure theory. The Commission on Elections, because of its fact-finding facilities, its contacts with political strategists, and its knowledge derived from actual experience in dealing with political controversies, is in a peculiarly advantageous position to decide complex political questions xxx. There are no ready made formulas for solving public problems. Time and experience are necessary to evolve patterns that will serve the ends of good government. In the matter of the administration of laws relative to the conduct of election xxx we must not by any excessive zeal take away from the Commission on Elections that initiative which by constitutional and legal mandates properly belongs to it."

More pointedly, this Court recently stated in Tupay Loong v. COMELEC, et al.,7 [See note no. 1.] that "[O]ur elections are not conducted under laboratory conditions. In running for public offices, candidates do not follow the rules of Emily Post. Too often, COMELEC has to make snap judgments to meet unforeseen circumstances that threaten to subvert the will of our voters. In the process, the actions of COMELEC may not be impeccable, indeed, may even be debatable. We cannot, however, engage in a swivel chair criticism of these actions often taken under very difficult circumstances."

The purpose of the governing statutes on the conduct of elections –

‘… [i]s to protect the integrity of elections to suppress all evils that may violate its purity and defeat the will of the voters. The purity of the elections is one of the most fundamental requisites of popular government. The Commission on Elections, by constitutional mandate, must do everything in its power to secure a fair and honest canvass of the votes cast in the elections. In the performance of its duties, the Commission must be given a considerable latitude in adopting means and methods that will insure the accomplishment of the great objective for which it was created – to promote free, orderly, and honest elections. The choice of means taken by the Commission on Elections, unless they are clearly illegal or constitute grave abuse of discretion, should not be interfered with."8 [Cauton v. COMELEC, 19 SCRA 911 (1967)]

Guided by the above-quoted pronouncement, the legal compass from which the COMELEC should take its bearings in acting upon election controversies is the principle that "clean elections control the appropriateness of the remedy."9 [Pacis v. COMELEC, 25 SCRA 377 (1968)]

In fixing the date for special elections the COMELEC should see to it that: 1.] it should not be later than thirty (30) days after the cessation of the cause of the postponement or suspension of the election or the failure to elect; and, 2.] it should be reasonably close to the date of the election not held, suspended or which resulted in the failure to elect. The first involves a question of fact. The second must be determined in the light of the peculiar circumstances of a case.10 [Lucero v. COMELEC, 234 SCRA 280 (1994)] Thus, the holding of elections within the next few months from the cessation of the cause of the postponement, suspension or failure to elect may still be considered "reasonably close to the date of the election not held."11 [Ibid., p. 297.]

In this case, the COMELEC can hardly be faulted for tardiness. The dates set for the special elections were actually the nearest dates from the time total/partial failure of elections was determined, which date fell on July 14, 1998, the date of promulgation of the challenged Omnibus Order. Needless to state, July 18 and 25, the dates chosen by the COMELEC for the holding of special elections were only a few days away from the time a total/partial failure of elections was declared and, thus, these were ‘dates reasonably close’ thereto, given the prevailing facts herein. Furthermore, it bears stressing that in the exercise of the plenitude of its powers to protect the integrity of elections, the COMELEC should not and must not be straitjacketed by procedural rules in the exercise of its discretion to resolve election disputes.12 [See Nolasco v. COMELEC, 275 SCRA 762 [1997]

Petitioner’s argument that respondent COMELEC gravely abused its discretion by failing to declare a total failure of elections in the entire province of Lanao del Sur and to certify the same to the President and Congress so that the necessary legislation may be enacted for the holding of a special election, likewise fails to persuade.

No less than petitioner himself concedes that there was total failure of elections in twelve (12) municipalities and partial failure in eleven (11). Yet he now insists a total failure of elections should have been declared in the entire province of Lanao del Sur. Suffice it to state that the propriety of declaring whether or not there has been a total failure of elections in the entire province of Lanao del Sur is a factual issue which this Court will not delve into considering that the COMELEC, through its deputized officials in the field, is in the best position to assess the actual conditions prevailing in that area. Absent any showing of grave abuse of discretion, the findings of fact of the COMELEC or any administrative agency exercising particular expertise in its field of endeavor, are binding on the Court.13 [Cordero v. COMELEC, GR No. 134826, 6 July 1999, p. 12, citing Grego v. COMELEC, 274 SCRA 481 (1997); Philippine Savings Bank v. NLRC, 261 SCRA 409 (1996); Navarro v. COMELEC, 228 SCRA 596 (1993)] There is no cogent reason to depart from the general rule in this case.

The insistence of petitioner that the COMELEC violated Sections 166, 170, 175 and 176 of the Omnibus Election Code when it ordered elements of the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) who are not assigned to the affected areas as members of the Board of Election Inspectors (BEIs) is likewise unconvincing vis-à-vis the underlying reason of the public respondent to have an effective and impartial military presence "to avoid the risk of another failure of elections."

So too must fall the argument that machine counting being allegedly "undependable and unreliable" should not be resorted to as the reasoning of petitioner, by itself, invokes the answer. If the COMELEC saw it fit to order a machine counting of votes in the municipalities enumerated, it could only mean that the decree of R.A. No. 8436 could be implemented without the interference of the claimed "unreliability, inaccuracy and undependability" of the computer sets. The absence of any satisfactory proof to support petitioner’s allegations to the contrary reduces them to mere self-serving claims.

Be that as it may, we agree with the Solicitor General that the petition has been rendered moot by supervening events. For one, it seeks to enjoin the holding of special elections scheduled for July 18 and 25, 1998. However, petitioner himself admits that special elections were "conducted on a staggered basis" on July 4, 18 and 25, 1998.14 [Rollo, p. 79.] For another, the petition questions the membership of the Board of Election Inspectors for being composed of elements of the Armed Forces of the Philippines and the Philippine National Police as well as the machine counting of the votes when these events have been superseded by the recent issuance of the Certificates Of Canvass Of Votes And Proclamation Of The Winning Candidates For Provincial Offices dated August 7, 1998.15 [Rollo, p. 88, Annex D, Supplemental Manifestation and Motion.] In face of these supervening events, the arguments proffered by the petitioner to seek the annulment of the challenged Omnibus Order rings hollow. Verily –

"At balance, the question really boils down to a choice of philosophy and perception of how to interpret and apply laws relating to elections; literal or liberal; the letter or the spirit; the naked provision or its ultimate purpose; legal syllogism or substantial justice; in isolation or in the context of social conditions; harshly against or gently in favor of the voter’s obvious choice. In applying election laws, it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms."16 [Frivaldo v. COMELEC, 257 SCRA 7272 (1996)]

Indeed, to embark upon the costly electoral exercise insisted upon by petitioner in terms of time and taxpayer’s money is an unwarranted imposition on the people of the affected areas and is an unacceptable option to the judicial conscience.

En Banc, Ynares-Santiago, LININDING PANGANDAMAN, petitioner, vs. COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF LANAO DEL SUR, MAHED MUTILAN, ALEEM, AMERRODIN SARANGANI and NARRA ABDUL JABBAR JIALIL, respondents. [G.R. No. 134340. November 25, 1999]

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An election must be held at the place, date and time prescribed by law. Likewise, its suspension or postponement must comply with legal requirements. Otherwise, it is irregular and void

In the main, the crucial question that needs to be addressed is whether the "election" held on the date, at the time and in the place other than those officially designated by the law and by the Comelec was valid. 

The Court’s Ruling

The Petition is meritorious.

Main Issue: Validity of the Special Election

Citing Mitmug v. Comelec,12 [230 SCRA 54, February 10, 1994. See also §6, Omnibus Election Code.] the Comelec points out that a failure of election requires the concurrence of two conditions, 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. It ruled that these requirements were not met.

We do not agree. The peculiar set of facts in the present case show not merely a failure of election but the absence of a valid electoral exercise. Otherwise stated, the disputed "election" was illegal, irregular and void.

Election Situs Was Illegal

First, the place where the voting was conducted was illegal. Section 42 of the Omnibus Election Code provides that "[t]he chairman of the board of election tellers shall designate the public school or any other public building within the barangay to be used as polling place in case the barangay has one election precinct x x x." Petitioner, citing an Affidavit13 [Rollo, p. 34.] supposedly executed by the members of the Board of Election Tellers (BET) for Barangay Maidan, alleges that the election of officials for said barangay was held at the residence of former Mayor Alang Sagusara Pukunun, which is located at Barangay Pandarianao, instead of the officially designated polling precinct at Cagayan Elementary School. If this allegation were true, such "election" cannot be valid, as it was not held within the barangay of the officials who were being elected. On the other hand, it is admitted that there was a public school or building in Barangay Maidan -- the Cagayan Elementary School, which was the earlier validly designated voting center.

While the BET members later repudiated their Affidavit, they could only claim that the election was held "in Barangay Maidan."14 [See Assailed Comelec Resolution, p. 4.] They, however, failed to specify the exact venue. In fact, to this date, even the respondents have failed to disclose where exactly the voting was conducted. This glaring omission definitely raises serious questions on whether the election was indeed held in a place allowed by law. Esmso

Voting Time Was Likewise Irregular

Second, as to the time for voting, the law provides that "[t]he casting of votes shall start at seven o'clock in the morning and shall end at three o'clock in the afternoon, except when there are voters present within thirty meters in front of the polling place who have not yet cast their votes, in which case the voting shall continue but only to allow said voters to cast their votes without interruption."15 [§190, OEC, as amended.] Section 22, Article IV of Comelec Resolution No. 2971 also specifies that the voting hours shall start promptly at 7:00 a.m. and end at 3:00 p.m. of the same day. Msesm

However, the "election" for Barangay Maidan officials was supposed to have been held after 9:00 p.m. of August 30, 1997 until the wee hours of the following day. Certainly, such schedule was not in accordance with law or the Comelec Rules. The Comelec erred in relying on the second sentence of Section 22, Article IV of Comelec Resolution 2971, which states that "[i]f at three o'clock [in the afternoon], there are still voters within thirty meters in front of the polling place who have not cast their votes, the voting shall continue to allow said voters to cast their votes without interruption." This sentence presupposes that the election commenced during the official time and is simply continued beyond 3:00 p.m. in order to accommodate voters who are within thirty meters of the polling place, already waiting for their turn to cast their votes. This is clearly the meaning and intent of the word continue -- "to go on in a specified course of action or condition."16 [Webster's New World Dictionary, 2nd College ed. (1974). (Emphasis supplied.)] The action or condition already subsists and is allowed to go on. Otherwise, the law should have stated instead that "the voting may also start even beyond 3:00 p.m. if there are voters within thirty meters in front of the polling place."

The strained interpretation espoused by the Comelec encourages the conduct of clandestine "elections," for it virtually authorizes the holding of elections beyond normal hours, even at midnight when circumstances could be more threatening and conducive to unlawful activities. On a doctrinal basis, such nocturnal electoral practice discourages the people's exercise of their fundamental right of suffrage, by exposing them to the dangers concomitant to the dead of night, especially in far-flung barangays constantly threatened with rebel and military gunfires. Kyle

Election Date Was Invalid

Third, the Comelec scheduled the special election on August 30, 1997. Any suspension or postponement of an election is governed by Section 2 of RA 6679,17 [Otherwise known as the Barangay Election Law, which amended parts of the OEC.] which states that "[w]hen for any serious cause such as rebellion, insurrection, violence, terrorism, loss or destruction of election paraphernalia, and any analogous causes of such nature that the holding of a free, orderly and honest election should become impossible in any barangay, the Commission on Election motu proprio or upon sworn petition of ten (10) registered voters of a barangay, after summary proceedings of the existence of such grounds, shall suspend or postpone the election therein to a date reasonably close to the date of the election that is not held or is suspended or postponed, or which resulted in a failure to elect, but not later than thirty (30) days after the cessation of the cause for such suspension or postponement of the election or failure to elect, and in all cases not later than ninety (90) days from the date of the original election."

Election Officer Diana Datu-Imam of Tugaya, Lanao del Sur practically postponed the election in Barangay Maidan from the official original schedule of 7:00 a.m. to 3:00 p.m. of August 30, 1997 to 10:00 p.m. of August 30, 1997 until the early morning of August 31, 1997. She attempted to justify her postponement of the election by citing threats of violence and bloodshed in the said barangay. Allegedly because of the tension created by armed escorts of the municipal mayor and the military, Datu-Imam declared a failure of election in order "to ease their aggression." However, as election officer, she has no authority to declare a failure of election. Indeed, only the Comelec itself has legal authority to exercise such awesome power. An election officer alone, or even with the agreement of the candidates, cannot validly postpone or suspend the elections.

Election Postponement Was Invalid

Fourth, Datu-Imam did not follow the procedure laid down by law for election postponement or suspension or the declaration of a failure of election. She narrated the circumstances surrounding her declaration as follows:18 [Narrative Report dated August 31, 1997 of Election Officer Diana T. Datu-Imam, p. 2; rollo, pp. 57-58.]

"When I returned to [as]certain the situation in Maidan, the Mayor, being too hysterical, yelled and threatened me to declare [a] failure of elections in Maidan. When I insisted to personally confirm the probable cause of bloodshed (at Maidan), his armed followers/escorts pointed their guns to me and my escorts. Likewise my military escorts pointed their guns to the mayor and his men 'Man to Man'. The Datus and religious leaders pacified us at the PNP Headquarters.

"After a couple of hours, the military officers and I agreed to adapt another strategy just to pursue with the elections in Maidan [by] hook or by crook. Considering that they forcibly took away from us the ballot box containing paraphernalia of Maidan, I didn't have any recourse but give them. I turned-over the ballot box to the Acting Chief of Police, Malik Bantuas with proper receipt, taking away from the box the CEF 2 & 2-A, declaring verbally a failure of elections in Maidan just to ease their aggression and so that we could pull-out of the place freely."

Notice Was Irregular

Finally and very significantly, the electorate was not given ample notice of the exact schedule and venue of the election. The election officer herself relates:19 [Narrative Report, supra.]

"When the tension was slightly alleviated, I directed the military personnel to pull-out of the Municipio and withdrew to a nearby Barangay (for safety) where some of the militaries (sic) were deployed. After planning and coordinating with the Batallion (sic) Commander, we waited for the additional troups (sic) that arrived at around 8:30 in the evening. At the stroke of 9:00 o'clock, we started for Maidan via the national Highway thru the Municipality of Balindong and others thru a short-cut way (sic) eastward of Tugaya. Utilizing the election paraphernalia earlier shipped by the Commission as I have requested (sic) and a ballot box from the PES, we went on with the election (after announcing it over the mosque) peacefully and orderly despite the tiredness (sic) and exhaustion felt by the people the whole day waiting/expecting for the election as I have assured them earlier (sic). x x x"

As can be gleaned easily from the above report, the electorate of Barangay Maidan was not given due notice that the election would push through after 9:00 p.m. that same day. Apparently, the election officer's decision to hold the election on the night of August 30, 1997 was precipitate. Only after additional military troops had arrived at their site in a nearby barangay about 8:30 p.m. did the election officers proceed to Barangay Maidan. Arriving at Maidan, they allegedly proceeded to conduct the election "after announcing it over the mosque."

Such abbreviated announcement "over the mosque" at such late hour did NOT constitute sufficient notice to the electorate. Consequently, not the entire electorate or even a respectable number could have known of the activity and actually participated therein or voluntarily and discerningly chosen not to have done so. Slx

Indeed, the Court in Hassan v. Comelec20 [264 SCRA 125, November 13, 1996, per Kapunan, J.] held that the notice given on the afternoon of the election day resetting the election to the following day and transferring its venue was "too short." We said that "[t]o require the voters to come to the polls on such short notice was highly impracticable. x x x It is essential to the validity of the election that the voters have notice in some form, either actual or constructive, of the time, place and purpose thereof.21 [Citing Furste v. Gray, 240 Ky 604, 42 SW 2d 889; and State ex rel Stipp v. Colliver, (MO) 243 SW 2d 344.] The time for holding it must be authoritatively designated in advance."22 [Hassan, supra, p. 134.]

In the case at bar, the announcement was made only minutes before the supposed voting. If one-day notice was held to be insufficient in Hassan, the much shorter notice in the present case should all the more be declared wanting. It should in fact be equated with "no notice." 

In sum, the "election" supposedly held for officials of Barangay Maidan cannot be clothed with any form of validity. It was clearly unauthorized and invalid. It had no legal leg to stand on. Not only did the suspension/postponement not comply with the procedure laid down by law and the Comelec Rules, neither was there sufficient notice of the time and date when and the place where it would actually be conducted. It was thus as if no election was held at all. Hence, its results could not determine the winning punong barangay.

En Banc, Justice Panganiban, HADJI RASUL BATADOR BASHER, petitioner, vs. COMMISSION ON ELECTIONS and ABULKAIR AMPATUA, respondents.  [G.R. No. 139028. April 12, 2000]

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The power to declare a failure of election and to set aside the results thereof is an extraordinary remedy. As early as Mandac v. Samonte,14 [49 Phil. 284 (1926).] we held that courts should be slow in nullifying elections, exercising the power only when it is shown that the irregularities and frauds are so numerous as to show an unmistakable intention or design to defraud, and which in fact defeat the true expression of the will of the electorate.15 [Id., p. 299.] As a rule, therefore, the following conditions must be satisfied before the COMELEC can favorably act upon a petition to declare a failure of election: (1) that no voting has taken place in the precinct or precincts on the date fixed by law or, even if there was voting, the elections nevertheless result in a failure to elect; and (2) the votes not cast would affect the result of the election.16 [Supra note 6; Sardea v. COMELEC, 225 SCRA 275 (1993); Usman v. COMELEC, 42 SCRA 667 (1971).] In the light of the facts as borne in the records, these two conditions do not obtain in the case at bench. Consequently, in Balindong v. COMELEC17 [260 SCRA 494 (1996).] and Co v. COMELEC,18 [Unsigned Resolution, G.R. No. 78820, May 17, 1988.] we refused to declare a failure of election despite alleged irregularities in the conduct of elections in the absence of evidence that the right of suffrage of a substantial portion of the electorate was prejudiced thereby.

Dissenting Opinion 

En Banc, Justice Panganiban, HADJI RASUL BATADOR BASHER, petitioner, vs. COMMISSION ON ELECTIONS and ABULKAIR AMPATUA, respondents.  [G.R. No. 139028. April 12, 2000] 

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Last Updated: Tuesday, April 24, 2001 09:10:02 PM