|
|
|
|
PRE-PROCLAMATION PROCEEDING BE SUMMARILY DONE BUT NOT EX PARTE THIRD. The Court agrees with the Solicitor General that pre and post proclamation proceedings should be resolved summarily but not ex parte. We quote his sound submission, viz.: "The record shows that petitioner had no
participation whatsoever in all the proceedings conducted before the
COMELEC. He was not furnished with a copy of any of the three (3)
petitions filed by private respondent before the COMELEC (Annexes B, B-1
and B-2, Petition). This fact is admitted by private respondent himself in
his Comment on the Petition dated November 12, 1998, thus:
Calrky 1. Petitioner has no legal personality to file the special civil action herein under Rule 65 of the Rules of Court because he is/was not a party to the three pre-proclamation cases, namely, SPC Nos. 98-002, 98-050 and 98-073 filed by answering respondent before public respondent Commission on Election hereafter referred to as the COMELEC. (p. 1, Private Respondent’s Comment; emphasis ours) In Jagunap v. Commission on Elections, 104 SCRA 204 (1981), this Honorable Court ruled that a proclamation of a winning candidate can be set aside only after due notice and hearing, viz: Upon the facts of the case, We find that the COMELEC had, indeed, gravely abused its discretion, amounting to lack of jurisdiction, in annulling the proclamation of JAEN as the elected Municipal Mayor of Leganes, Iloilo. JAEN was not furnished with a copy of any petition or motion to set aside his proclamation; nor was he notified of the hearing of such petition or motion. As a matter of fact, the records of the case do not indicate that a hearing was ever conducted by the COMELEC before it ordered the annulment of the proclamation of JAEN. This to Us is an irregularity. JAEN, who has already been proclaimed by the Municipal Board of Canvassers of Leganes, Iloilo, has the right to be notified of any proceeding to set aside his proclamation, and a hearing is necessary before the COMELEC can order the annulment of his proclamation. Section 175 of the 1978 Election Code explicitly provides that the COMELEC can order the annulment of a proclamation of a candidate-elect on any of the grounds mentioned in Sections 172, 173 and 174 thereof (defective, tampered and falsified election returns, and discrepancies in the election returns) only after due notice and hearing. Said section reads as follows: Sec. 175. Suspension and annulment of
proclamation. – The Commission shall be the sole judge of all
pre-proclamation controversies and any of its decisions, orders or rulings
shall be final and executory. It may motu propio or upon written
petition, and after due notice and hearing order the suspension of the
proclamation of a candidate-elect or annul any proclamation, if one has
been made, on any of the grounds mentioned in Sections 172, 173 and 174
hereof. Mesm It results that COMELEC Resolution No. 9431, dated March 1, 1980, and COMELEC Resolution No. 9456, dated May 6, 1980, which were issued without the notice and hearing, are arbitrary, and therefore, null and void. The proclamation of JAGUNAP, being based upon these void resolutions, is, consequently, of no legal effect, and should be set aside. Furthermore, Section 246 of B.P. Blg. 881, otherwise known as the Omnibus Election Code of the Philippines, as amended by Section 18 of R.A. 7166, provides that pre-proclamation cases must be disposed of summarily but not ex parte, viz: Section 246. Summary disposition of pre-proclamation controversies. – All pre-proclamation controversies on election returns on certification of canvass shall, on the basis of the records and evidence elevated to it by the board of canvassers, be disposed of summarily by the Commission within seven (7) days from receipt thereof. Its decisions shall be executory after the lapse of seven (7) days from receipt by the losing party of the decision of the commission. x x x A judicial proceeding, order or injunction, etc. is said to be ex parte when it is taken or granted at the instance and for the benefit of one party only and without notice to, or contestation by any person adversely interested. An ex parte hearing is one in which the court or tribunal hears only one side of the controversy (Black’s Law Dictionary, Sixth Edition, p. 576). In the case at bar, petitioner’s proclamation as Mayor of Gapan, Nueva Ecija by the Municipal Board of Canvassers on May 17, 1998 was not only summarily annulled by the COMELEC. It was annulled ex parte, i.e., solely on the basis of the evidence presented by private respondent, absolutely depriving petitioner an opportunity to present his rebuttal evidence. This ex parte annulment of petitioner’s proclamation is null and void for being repugnant to the due process clause of the Constitution and, should, therefore, be set aside conformably with Jagunap (supra)." It is true that RA No. 7166 provides for summary proceedings in pre-proclamation cases and does not require a trial type hearing. Nevertheless, summary proceedings cannot be stretched to mean ex parte proceedings. Summary simply means with dispatch, with the least possible delay. It signifies that the power may be exercised without a trial in the ordinary manner prescribed by law for regular judicial proceedings. But although the proceedings are summary, the adverse party nevertheless must at the very least be notified so that he can be apprised of the nature and purpose of the proceeding.25 [Cox v. Dixie Power, Co., 16 P.2d 916.] In the case at bar, all the proceedings were conducted by the respondent COMELEC without the participation of the petitioner. Worse, respondent Natividad was allowed to file various motions without the knowledge of the petitioner. Plainly, these ex parte proceedings offend fundamental fairness and are null and void.
For any
inquiries or comment, you may contact the WEBMASTER
|
CCHOPE ELECTION
2001 
