Barbers vs. COMELEC

Once a senatorial candidate has been proclaimed as a winner, the sole and exclusive jurisdiction over any contest relating to the election, returns, and qualifications of that candidate vests in the Senate Electoral Tribunal, not in the COMELEC or the Supreme Court; the proper remedy is a regular election protest before the SET, not a petition for certiorari or prohibition.

Robert Z. Barbers and Rodolfo G. Biazon were both incumbent Senators seeking re-election in the 10 May 2004 Synchronized National and Local Elections. The COMELEC, sitting en banc as the National Board of Canvassers for Senators, was tasked with canvassing the Certificates of Canvass submitted by various provincial, city, district, and special boards of canvassers, including boards for overseas and local absentee voting, and proclaiming the twelve winning senatorial candidates. The constitutional framework governing the adjudication of post-proclamation disputes involving members of the Senate is Article VI, Section 17 of the 1987 Constitution, which vests in the Senate Electoral Tribunal the status of "sole judge of all contests relating to the election, returns, and qualifications" of Senate members.

Robert Z. Barbers and Rodolfo G. Biazon were incumbent Senators and candidates for re-election in the 10 May 2004 Synchronized National and Local Elections. The COMELEC, sitting en banc as the National Board of Canvassers for Senators, was responsible for canvassing the Certificates of Canvass submitted by various boards of canvassers nationwide and proclaiming the twelve winning senatorial candidates.

On 24 May 2004, the COMELEC as NBC promulgated Resolution No. NBC 04-002 proclaiming the first 11 duly elected Senators, based on COCs submitted by 78 Provincial Boards of Canvassers, 7 City Boards of Canvassers of cities comprising one or more legislative districts, 13 City Boards of Canvassers from the National Capital Region, 2 District Boards of Canvassers from Metro Manila, 74 Special Boards of Canvassers for Overseas Absentee Voting, and 1 Board of Canvassers for Local Absentee Voting. The COMELEC declared that it would proclaim the remaining 12th winning candidate after canvassing the remaining unsubmitted COCs.

On 2 June 2004, the COMELEC promulgated Resolution No. NBC 04-005 proclaiming Biazon as the duly elected 12th Senator. After canvassing the supplemental Provincial COCs from Maguindanao (Cotabato City), Lanao del Sur, and one barangay in Nueva Vizcaya, Biazon obtained 10,635,270 votes nationwide while Barbers obtained 10,624,585 votes, giving Biazon a margin of 10,685 votes. The COMELEC stated that this difference would not materially be affected by votes in precincts where there was failure of elections.

Claiming that Biazon's proclamation was void as illegal and premature for being based on an incomplete canvass, Barbers filed a petition to annul the proclamation with the COMELEC on 7 June 2004, docketed as SPC Case No. 04-258 and assigned to a Special Division. Barbers asserted that the remaining uncanvassed COCs and votes, together with the results of special elections still to be conducted, would undoubtedly affect the election results. On 9 June 2004, Barbers filed an Omnibus Motion for Immediate Service of Summons, Suspension of the Effects of Proclamation, and to Set Case for Hearing, stressing that there could be no valid proclamation based on an incomplete canvass and that the term of office of Senators would commence on 30 June 2004.

The COMELEC Special Division denied the petition on 6 July 2004, restating Biazon's proclamation. The COMELEC's analysis showed that after including uncanvassed votes from Maguindanao (South Upi and Talitay), Sultan Kudarat (Columbio), Northern Samar (Silvino Lobos), and Albay (Ligao City), Barbers gained 6,736 additional votes while Biazon gained 2,263, reducing Biazon's lead to 6,212. Even assuming all 2,931 remaining uncanvassed votes from special elections yet to be held in Lanao del Sur, Maguindanao, and Northern Samar went to Barbers, Biazon would still lead by 3,299 votes. Barbers' motion for reconsideration was denied by the COMELEC en banc on 25 October 2004, which found that Biazon's lead was insurmountable and that Barbers failed to adduce sufficient evidence to overturn the ruling.

• Incomplete Canvass: Petitioner argued that Biazon's proclamation on 2 June 2004 was illegal, premature, and void because it was based on an incomplete canvass, with remaining uncanvassed COCs and votes and the results of special elections still to be conducted undoubtedly affecting the election results.
• Use of Improvised MCOCs: Petitioner contended that the COMELEC gravely abused its discretion by resorting to and using improvised Municipal COCs — which he characterized as non-canvassed, unauthentic, unreliable, and dubious documents submitted to a mere COMELEC department (ERSD) rather than to the NBC — instead of relying on official Provincial COCs submitted to the COMELEC as the National Board of Canvassers for Senators, for purposes of tallying the still uncanvassed election results.
• Refusal to Rectify Premature Proclamation: Petitioner asserted that the COMELEC gravely abused its discretion by recognizing that there was an incomplete canvass at the time of Biazon's proclamation but then adamantly refusing to rectify the void premature proclamation, instead reinstating it by anomalously relying on unauthentic and dubious MCOCs rather than lawful PCOCs.

• Jurisdiction of COMELEC Division: Respondent Biazon asserted that the First Division (Special Division) of the COMELEC had no jurisdiction to review, modify, or set aside what the COMELEC sitting en banc as the NBC had officially performed in promulgating Resolution No. NBC 04-005.
• Jurisdiction of the SET: Respondent Biazon argued that since the COMELEC had already proclaimed him on 2 June 2004 and he had taken his oath of office on 30 June 2004, the Senate Electoral Tribunal, not the COMELEC, had jurisdiction to entertain the petition.
• Insurmountable Margin: Respondent Biazon maintained that with his established margin of 10,685 votes, the votes from alleged uncanvassed COCs and the votes still to be cast in special elections would not substantially affect the results of the election for the 12th and last slot for Senator.
• Manifest Error in Vote Credit: Respondent Biazon contended that the NBC committed a manifest error in crediting Barbers a total of 34,711 votes from Lanao del Sur while crediting Biazon only 1,428 votes from the supplemental Provincial COCs for Lanao del Sur, despite the existence and availability of the Municipal COCs for Balabagan and Tagoloan, Lanao del Sur.

• Jurisdiction: Whether the Supreme Court has jurisdiction to entertain the petition for certiorari and prohibition, or whether the Senate Electoral Tribunal has sole and exclusive jurisdiction over contests relating to the election, returns, and qualifications of members of the Senate after proclamation.
• Grave Abuse of Discretion — Use of MCOCs: Whether the COMELEC gravely abused its discretion amounting to lack or excess of jurisdiction by using improvised Municipal COCs instead of Provincial COCs for purposes of tallying uncanvassed election results.
• Grave Abuse of Discretion — Premature Proclamation: Whether the COMELEC gravely abused its discretion by recognizing the incomplete canvass but refusing to rectify Biazon's premature proclamation, instead reinstating it by relying on unauthentic and dubious MCOCs.

• Jurisdiction: No. The Supreme Court has no jurisdiction; the SET is the sole judge of all contests relating to the election, returns, and qualifications of members of the Senate under Article VI, Section 17 of the 1987 Constitution, and the proper remedy after proclamation is an election protest before the SET.
• Grave Abuse of Discretion — Use of MCOCs: No. Since the uncanvassed returns and the results of special elections yet to be held would not materially affect the results of the elections, it is immaterial whether the COMELEC used PCOCs or MCOCs in the subsequent canvass.
• Grave Abuse of Discretion — Premature Proclamation: No. Under Section 233 of the Omnibus Election Code and Section 9 of COMELEC Resolution No. 6749, the board of canvassers may terminate the canvass and proclaim candidates on the basis of available returns if the missing returns will not affect the results of the election, and Biazon's lead remained insurmountable even under the most adverse assumptions.

• Jurisdiction: The word "sole" in Article VI, Section 17 of the 1987 Constitution and Rule 12 of the Revised Rules of the Senate Electoral Tribunal underscores the exclusivity of the SET's jurisdiction over election contests relating to members of the Senate. The authority conferred upon the SET is categorical and complete. In Pangilinan vs. COMELEC, the Court ruled that where a candidate has already been proclaimed winner, the remedy is to file an electoral protest with the appropriate Electoral Tribunal. In Javier vs. COMELEC, the phrase "election, returns and qualifications" was interpreted as covering all matters affecting the validity of the contestee's title, including "returns" which refer to the canvass of returns and the proclamation of winners. Since Barbers contests Biazon's proclamation as the 12th winning senatorial candidate, it is the SET which has exclusive jurisdiction. Certiorari and prohibition will not lie because there is an available and adequate remedy in the ordinary course of law — an election protest before the SET. For the Court to take cognizance of the electoral protest would usurp the constitutional functions of the SET.

• Grave Abuse of Discretion — Use of MCOCs: An incomplete canvass is illegal and cannot be the basis of a subsequent proclamation, but this is true only where the missing or uncounted election returns will affect the results of the election. The COMELEC Supervisory Committee's report of 29 June 2004 showed that Barbers obtained 6,736 votes and Biazon 2,263 votes in areas where results were not included in the national canvass, reducing Biazon's lead to 6,212. The total number of registered voters in areas where special elections were still to be conducted was only 2,931, covering 19 precincts in three municipalities. Even assuming all 2,931 votes went to Barbers, Biazon would still lead by 3,299. Since the uncanvassed returns and special election results would not materially affect the outcome, it is immaterial whether the COMELEC used PCOCs or MCOCs in the subsequent canvass. The COMELEC enjoys the presumption of good faith and regularity in the performance of official duty.

• Grave Abuse of Discretion — Premature Proclamation: Section 233 of the Omnibus Election Code expressly authorizes the board of canvassers to terminate the canvass and proclaim candidates elected on the basis of available election returns if the missing returns will not affect the results. Section 9 of COMELEC Resolution No. 6749, the General Instructions for the Canvass of Votes and Proclamation of Results for Senators, similarly provides that the NBC may terminate the canvass if the missing COCs would no longer affect the results. The COMELEC based its ruling on official COMELEC records, and the mathematical analysis confirmed that Biazon's lead was insurmountable. No grave abuse of discretion was committed.

• Sole Jurisdiction of the Senate Electoral Tribunal — Under Article VI, Section 17 of the 1987 Constitution, the Senate Electoral Tribunal is the "sole judge of all contests relating to the election, returns, and qualifications" of members of the Senate. The word "sole" underscores the exclusivity of the SET's jurisdiction. Once a senatorial candidate has been proclaimed, any contest relating to election returns and qualifications must be brought before the SET, not the COMELEC or the Supreme Court. The proper remedy after proclamation is a regular election protest with the SET. The Court applied this doctrine by dismissing Barbers' petition for certiorari and prohibition, holding that the Court had no jurisdiction and that Barbers' proper recourse was an election protest before the SET.

• Incomplete Canvass Rule — An incomplete canvass of votes is illegal and cannot be the basis of a subsequent proclamation, as a canvass is not reflective of the true vote of the electorate unless the board of canvassers considers all returns and omits none. However, this rule applies only where the election returns missing or not counted will affect the results of the election. Where the missing returns will not affect the outcome, the board may terminate the canvass and proclaim the winning candidates. The Court applied this doctrine by holding that since Biazon's lead remained insurmountable even after accounting for all uncanvassed votes and assuming all remaining special election votes went to Barbers, the incomplete canvass did not invalidate the proclamation.

• Presumption of Regularity in the Performance of Official Duty — The COMELEC enjoys the presumption of good faith and regularity in the performance of its official functions. The Court relied on this presumption in concluding that the COMELEC did not commit grave abuse of discretion in issuing the assailed resolutions, as it based its rulings on official COMELEC records.

• "The word 'sole' in Section 17, Article VI of the 1987 Constitution and Rule 12 of the Revised Rules of the Senate Electoral Tribunal ('SET') underscores the exclusivity of the SET's jurisdiction over election contests relating to members of the Senate. The authority conferred upon the SET is categorical and complete. It is therefore clear that this Court has no jurisdiction to entertain the instant petition." — This passage articulates the ratio decidendi on jurisdiction, establishing that the SET's jurisdiction over post-proclamation senatorial election contests is exclusive and ousts the Supreme Court of jurisdiction over certiorari petitions challenging COMELEC resolutions affirming such proclamations.

• "An incomplete canvass of votes is illegal and cannot be the basis of a subsequent proclamation. A canvass is not reflective of the true vote of the electorate unless the board of canvassers considers all returns and omits none. However, this is true only where the election returns missing or not counted will affect the results of the election." — This passage states the controlling doctrine on incomplete canvass, qualifying the general prohibition by the materiality threshold — the missing returns must be capable of affecting the election results for the incompleteness to invalidate the proclamation.

• "Since the election returns not included in the national canvass as well as the results of the special elections to be held would not materially affect the results of the elections, it is immaterial whether the COMELEC used PCOCs or MCOCs in the subsequent canvass." — This passage resolves the procedural challenge regarding the type of canvass documents used, holding that the materiality of the missing returns, not the form of the canvass document, is the dispositive consideration.

• Pangilinan vs. Commission on Elections, G.R. No. 105278, 18 November 1993, 228 SCRA 36 — Controlling precedent on the jurisdictional point. The Court ruled that the Electoral Tribunals of the Senate and House of Representatives are the "sole judge of all contests relating to the election, returns, and qualifications of their respective Members," thereby divesting the COMELEC of jurisdiction over election cases pertaining to members of Congress. Applied directly to hold that Barbers' proper recourse was an election protest before the SET.

• Javier vs. COMELEC, 228 Phil. 193 (1986) — Followed for its interpretation of the phrase "election, returns and qualifications" in Article VI, Section 17, which the Court used to establish that "returns" encompasses the canvass of returns and the proclamation of winners, including questions concerning the composition of the board of canvassers and the authenticity of the election returns.

• Rasul vs. Commission on Elections, 371 Phil. 760 (1999) — Cited for the proposition that where a candidate has been proclaimed as the 12th winning senatorial candidate, the proper recourse is to file a regular election protest before the SET, not a petition before the COMELEC.

• Nasser Immam vs. Commission on Elections, 379 Phil. 953 (2000) — Cited for the incomplete canvass rule that an incomplete canvass is illegal only where the missing returns will affect the results of the election, and for the presumption of regularity in the performance of official duty by the COMELEC.

• Chavez vs. Commission on Elections, G.R. No. 150799, 03 February 2004 — Cited by the COMELEC for the requirement that to prove manifest errors in a pre-proclamation contest, the errors must appear on the certificates of canvass or election returns and objections must have been made before the board of canvassers and noted in the minutes of their proceedings.

• Article VI, Section 17, 1987 Constitution — Provides that the Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the "sole judge of all contests relating to the election, returns, and qualifications of their respective Members." Applied as the constitutional basis for dismissing the petition for lack of jurisdiction, the SET having exclusive jurisdiction over post-proclamation contests involving senators.

• Section 233, Omnibus Election Code — Provides that when election returns are delayed, lost, or destroyed, the board of canvassers may use authentic copies, and further provides that the board of canvassers may terminate the canvass and proclaim candidates on the basis of available election returns if the missing returns will not affect the results of the election. Applied to uphold the validity of Biazon's proclamation despite the incomplete canvass.

• Section 9, COMELEC Resolution No. 6749 (General Instructions for the Canvass of Votes and Proclamation of Results for Senators and Party-List, May 10, 2004 Elections) — Provides that notwithstanding the fact that not all COCs have been received or canvassed, the NBC may terminate the canvass if the missing COCs would no longer affect the results of the elections. Applied in conjunction with Section 233 of the Omnibus Election Code to validate the COMELEC's termination of canvass and proclamation of Biazon.

• Section 34, COMELEC Resolution No. 6669 — Enumerates the issues that may be raised in pre-proclamation cases. The COMELEC found that Barbers' petition did not fall within this enumeration, as it was a petition to annul proclamation based on alleged incomplete canvass, not a pre-proclamation case.

• Section 242, Omnibus Election Code — Relates to annulment of proclamation arising from the COMELEC's jurisdiction over pre-proclamation controversies, as discussed in the COMELEC en banc's October 25, 2004 Resolution.

• Republic Act No. 7166 — Qualifies the COMELEC's power over pre-proclamation contests by providing that such contests may only apply in cases where there are "manifest errors" in the election returns or certificates of canvass with respect to national elective positions.

• Rule 12, Revised Rules of the Senate Electoral Tribunal — Provides that the SET is the "sole judge of all contests relating to the election, returns, and qualifications of the Members of the Senate." Applied to reinforce the exclusivity of the SET's jurisdiction.

• Section 1, Rule 65, 1997 Rules of Civil Procedure — Sets forth the essential requisites for certiorari: (a) the tribunal, board, or officer exercising judicial or quasi-judicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction, and (b) there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law. Applied to determine the availability of certiorari, which was found unavailing due to the adequate remedy of an election protest before the SET.

• Section 2, Rule 65, 1997 Rules of Civil Procedure — Sets forth the essential requisites for prohibition. Applied similarly to determine that prohibition would not lie because an adequate remedy existed in the ordinary course of law.

Panganiban, Quisumbing, Corona, Carpio-Morales, Azcuna, Chico-Nazario, and Garcia, JJ., concurred in the decision.

Davide, Jr., C.J., Puno, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Callejo, Sr., and Tinga, JJ., concurred on the ground of lack of jurisdiction.