Banaga, Jr. vs. COMELEC

A petition to declare a failure of elections or annul election results must, on its face, allege that no voting took place, that the election was suspended, or that the election resulted in a failure to elect due to force majeure, violence, terrorism, fraud, or analogous causes, and that the votes not cast would have affected the result; absent such allegations, the COMELEC may dismiss it outright without a hearing. An action is classified by its allegations and prayer, not by a later claim that it is an election protest; a petition invoking failure of elections remains a special action.

Tomas T. Banaga, Jr. and Florencio M. Bernabe, Jr. were rival candidates for Vice-Mayor of Parañaque City in the May 11, 1998 elections. Their dispute turns on the statutory boundary between an election protest and a petition to declare a failure of elections or annul election results under Section 6 of the Omnibus Election Code and Section 4 of Republic Act No. 7166. Those provisions empower the COMELEC sitting en banc to declare a failure of election and call special elections, but only on grounds of force majeure, violence, terrorism, fraud, or analogous causes and where the election results in a failure to elect.

In the May 11, 1998 local elections, Tomas T. Banaga, Jr. and Florencio M. Bernabe, Jr. competed for the Vice-Mayoralty of Parañaque City. On May 19, 1998, the city board of canvassers proclaimed Bernabe the winner with a total of 71,977 votes; Banaga received 68,970 votes, a difference of 3,007 votes.

On May 29, 1998, Banaga filed with the COMELEC a petition dated May 28, 1998, captioned “Petition to Declare Failure of Elections and/or For Annulment of Elections.” He alleged that the vice-mayoral election was tainted with widespread election anomalies constituting election fraud, including vote buying and flying voters being allowed to vote; that numerous election returns contained glaring discrepancies and blatant omissions and appeared tampered with, altered, falsified, or fabricated; that an indeterminable number of flying voters were allowed to vote; and that the results were statistically improbable, citing Precinct No. 483 where he supposedly received zero votes despite being the incumbent Vice-Mayor. As a specific example, he alleged that Dennis Sambilay Agayan was arrested for voting in substitution of registered voter Ramon Vizcarra at Precinct Nos. 111-112 at Tambo Elementary School and admitted before SPO1 Alberto V. Parena that he was paid P150.00 to vote at those precincts and use Vizcarra’s name; an Information dated May 11, 1998 was attached. He also cited the affidavit of Rosemarie Pascua of Barangay Baclaran regarding voters depositing more than one ballot inside the ballot box.

Banaga prayed that the COMELEC declare a failure of elections or annul the elections for Vice-Mayor, annul Bernabe’s proclamation, and order special elections. Alternatively, he asked that the City Treasurer of Parañaque be ordered to bring before the COMELEC the ballot boxes, copies of the registry lists, election returns, minutes of election in all precincts, and other documents used in the May 11, 1998 vice-mayoral election for re-examination and revision. After trial, he prayed that Bernabe’s election be annulled, that he be adjudged the duly elected Vice-Mayor, and that expenses, costs, and damages be assessed against Bernabe.

• Nature of the Action: Petitioner argued that the petition dated May 28, 1998 was essentially an election protest, so the COMELEC could not legally dismiss the entire petition merely on the ground that there was allegedly no failure of election in Parañaque during the May 11, 1998 elections.
• Applicability of Precedents: Petitioner argued that the authority relied upon by the COMELEC—Edwin Sardea, et al. vs. COMELEC, et al. and Mitmug vs. COMELEC—was not applicable because, aside from being an election protest, the petition sought annulment of an election under the doctrine in Loong vs. COMELEC.
• Due Process and Motu Proprio Dismissal: Petitioner claimed that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction when it dismissed his petition motu proprio without any basis and without giving him the benefit of a hearing.

• Grave Abuse of Discretion — Dismissal of Petition: Whether the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in dismissing petitioner’s petition to declare failure of elections and/or annul election results, in light of his contentions that the petition was essentially an election protest, that Sardea and Mitmug are inapplicable, that Loong controls, and that the dismissal was motu proprio without a hearing.

• Grave Abuse of Discretion — Dismissal of Petition: No. The COMELEC did not gravely abuse its discretion. Petitioner’s action was a petition to declare a failure of elections or annul election results, not an election protest, and its allegations did not satisfy Section 6 of the Omnibus Election Code.

• Grave Abuse of Discretion — Dismissal of Petition: Under Section 4 of RA 7166 and Section 6 of the Omnibus Election Code, the COMELEC may declare a failure of election only in the three instances specified by law and only upon concurrence of two conditions: (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. The causes are limited to force majeure, violence, terrorism, fraud, or analogous causes. The SC examined Banaga’s petition and found that he did not allege that elections were not held or suspended, nor that nobody was elected; he conceded that an election took place and that Bernabe was proclaimed. His allegations of widespread anomalies, vote buying, flying voters, and discrepancies in election returns did not allege that fraud prevented or suspended the holding of the election or fatally marred the preparation and transmission, custody, and canvass of the election returns. Hence, the petition did not show the statutory requisites on its face.

  On the nature of the action, the SC held that Banaga’s petition was not an election protest. It was filed under Section 4 of RA 7166 in relation to Section 6 of the Omnibus Election Code and captioned as a petition to declare failure of elections and/or annul elections. An election protest is an ordinary action under Rule 20 of the 1993 COMELEC Rules of Procedure, while a petition to declare failure of elections is a special action under Rule 26. Banaga filed his petition as a special action, paid the corresponding fee, and it was docketed as SPA-98-383; an election protest would be docketed as an EPC. He also did not comply with the requirements for an election protest, failing to pay the required filing fee and cash deposits, which failure would not vest the election tribunal with jurisdiction and would warrant outright dismissal. The finality periods also differ: an en banc decision in an ordinary action becomes final after 30 days, while one in a special action becomes final after 5 days unless restrained by the SC. The allegations in the petition determine its nature, and Banaga’s allegations were that the election was marred by anomalies warranting a declaration of failure of elections. The COMELEC therefore did not gravely err in treating the action as a petition to declare failure of elections or annul election results.

  The SC also rejected Banaga’s reliance on Loong vs. COMELEC and his claim that Sardea vs. COMELEC and Mitmug vs. COMELEC were inapplicable. In Mitmug, the COMELEC denied a petition to declare failure of election in 49 precincts despite claims of massive disenfranchisement due to terrorism; the SC upheld the denial because it was not proven that no actual voting took place or that the results would amount to a failure to elect, and there was no need to receive evidence on election irregularities absent the concurrence of the conditions. In Sardea, the destruction and loss of copies of election returns intended for the municipal board of canvassers due to violence did not warrant a failure of election because voting took place as scheduled, other valid election returns existed, and the destruction did not affect the result; the SC there said that failure of elections exists only when the will of the electorate has been muted and cannot be ascertained. In Loong, the COMELEC had found badges of fraud and granted the petition for annulment or failure of elections in Parang, Sulu, but dismissed the petition for five other municipalities on timeliness despite similar badges; the SC found grave abuse because no reglementary period applied when there was yet no proclamation, and the election resulted in a failure to elect on account of fraud. Those circumstances were not present in Banaga’s case.

  Banaga’s argument that the COMELEC should not have treated his prayer for annulment as a prayer for declaration of failure of elections was also rejected. The SC held that a prayer to declare failure of elections and a prayer to annul election results based on fraud, terrorism, violence, or analogous causes are of the same nature under the Omnibus Election Code; the distinction was without a difference. Finally, on the motu proprio dismissal, the SC held that the filing of a verified petition does not require a hearing before the COMELEC can act. The petition must show on its face that the conditions necessary to declare a failure to elect are present; in their absence, the petition must be denied outright. The COMELEC can only rule on what was filed before it, and Banaga could not complain of denial of due process for his failure to properly file an election protest. The COMELEC thus committed no grave abuse of discretion in dismissing the petition as groundless.

• Failure of Elections — Instances and Requisites — Under Section 6 of the Omnibus Election Code, a failure of election may be declared in three instances: (a) the election in any polling place was not held on the date fixed due to force majeure, violence, terrorism, fraud, or analogous causes; (b) the election was suspended before the hour fixed by law for closing the voting due to those causes; or (c) after voting and during preparation and transmission of election returns or in their custody or canvass, the election resulted in a failure to elect due to those causes. Before the COMELEC can act on a verified petition, two conditions must concur: (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. The SC applied this to Banaga, who conceded that an election took place and that Bernabe was proclaimed, and alleged no failure to elect.
• Fraud as Ground for Failure of Elections — To warrant a declaration of failure of election, fraud must be such that it prevented or suspended the holding of an election, or fatally marred the preparation and transmission, custody, and canvass of election returns. Widespread anomalies, vote buying, flying voters, and discrepancies in election returns, without more, do not satisfy the statutory ground if an election was held and a winner emerged. The SC held Banaga’s allegations insufficient.
• Election Protest vs. Petition to Declare Failure of Elections — An election protest is an ordinary action under Rule 20 of the 1993 COMELEC Rules of Procedure, docketed as an EPC, and requires payment of filing fees and cash deposits; a petition to declare failure of elections is a special action under Rule 26, docketed as an SPA. The nature of the action is determined by its allegations and prayer. The SC held Banaga’s action was the latter, not an election protest, so the COMELEC could dismiss it for failure to allege the requisites.
• Annulment of Elections and Failure of Elections — A prayer to declare a failure of elections and a prayer to annul election results based on fraud, terrorism, violence, or analogous causes are of the same nature under the Omnibus Election Code. The SC held that treating Banaga’s prayer for annulment as a prayer for failure of elections was not error; the distinction was without a difference.
• Motu Proprio Dismissal Without Hearing — A verified petition to declare a failure of election and/or annul election results must show on its face that the conditions necessary to declare a failure to elect are present. In their absence, the COMELEC may deny the petition outright without a hearing, and no due process violation arises. The SC applied this to reject Banaga’s claim of grave abuse.
• Respect for the Electorate’s Will — A failure of elections may be declared only when the will of the electorate has been muted and cannot be ascertained; if the will of the people is determinable, it must as far as possible be respected. The SC cited Sardea vs. COMELEC for this principle in upholding the dismissal.

• “There are three instances where a failure of election may be declared, namely, (a) 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; (b) 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 (c) 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 causes.” — The SC enumerates the only instances in which a failure of election may be declared under Section 6 of the Omnibus Election Code.
• “Before the COMELEC can act on a verified petition seeking to declare a failure of election 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.” — The SC states the two requisites that must appear before the COMELEC may act on a failure-of-elections petition.
• “While petitioner contends that the election was tainted with widespread anomalies, it must be noted that to warrant a declaration of failure of election the commission of fraud must be such that it prevented or suspended the holding of an election, or marred fatally the preparation and transmission, custody and canvass of the election returns.” — The SC explains why Banaga’s allegations of widespread anomalies did not meet the fraud ground for failure of elections.
• “The petition to declare a failure of election and/or to annul election results must show on its face that the conditions necessary to declare a failure to elect are present. In their absence, the petition must be denied outright.” — The SC justifies the COMELEC’s motu proprio dismissal without a prior hearing.

• Mitmug vs. COMELEC, 230 SCRA 54 (1994) — Followed; the SC relied on it to uphold the denial of a failure-of-elections petition where no actual voting failure or failure to elect was shown and the conditions did not concur.
• Sardea vs. COMELEC, 225 SCRA 374 (1993) — Followed; the SC used it to hold that destruction or loss of election returns did not warrant failure of elections where voting took place, other valid returns existed, and the result was not affected; it also supplied the rule that failure exists only when the electorate’s will is muted.
• Loong vs. COMELEC, 257 SCRA 1 (1996) — Distinguished; the SC found it inapplicable because Loong involved a COMELEC finding of badges of fraud and a failure to elect, and no proclamation, unlike Banaga’s case.
• Typoco vs. COMELEC, GR-136191, November 29, 1999 — Cited for the rule that in the third scenario, failure to elect means nobody emerged as a winner.

• Section 4, Republic Act No. 7166 — Provides that the COMELEC sitting en banc by a majority vote of its members may decide postponement, declaration of failure of election, and the calling of special elections as provided in Sections 5, 6, and 7 of the Omnibus Election Code; the cause for the declaration of a failure of election may occur before or after the casting of votes or on the day of election. Applied because Banaga invoked this provision and because it defines the COMELEC’s authority over failure-of-elections petitions.
• Section 6, Omnibus Election Code — Defines “Failure of Elections” and limits its declaration to cases where, due to force majeure, violence, terrorism, fraud, or analogous causes, the election was not held, was suspended, or resulted in a failure to elect. Applied to show that Banaga’s allegations did not satisfy the statutory grounds.
• Rule 20, 1993 COMELEC Rules of Procedure — Governs ordinary actions, including election protests. Applied to distinguish an election protest from a petition to declare failure of elections.
• Rule 26, 1993 COMELEC Rules of Procedure — Governs special actions, including a petition to declare failure of elections. Applied to classify Banaga’s petition as a special action docketed as SPA-98-383.
• Rule 13, Section 1(d), 1993 COMELEC Rules of Procedure, as amended — Prohibits a motion for reconsideration of a COMELEC en banc ruling except in a case involving an election offense. Applied to explain why Banaga directly filed a petition for certiorari with the SC.
• Rule 18, Section 13(a), (b), COMELEC Rules of Procedure — Provides different finality periods for en banc decisions in ordinary actions and special actions. Applied to show that a petition cannot be treated as both an election protest and a petition to declare failure of elections.